
Attorneys for Appellant                            Attorneys for Appellee
Brian C. Edington      Steve Carter
Pro se      Attorney General of Indiana
Michigan City, Indiana
      Justin F. Roebel
      Deputy Attorney General
      Indianapolis, Indiana


                                   In the
                            Indiana Supreme Court
                      _________________________________

                           No. 50S03-0310-PC-00462

Brian C. Edington
                                             Appellant (Defendant below),

                                     v.

State of Indiana
                                             Appellee (Plaintiff below).
                      _________________________________

      Appeal from the Marshall Superior Court, No. 49G02-9407-CF-087433
                    The Honorable Robert O. Bowen, Judge
                      _________________________________

 On Petition To Transfer from the Indiana Court of Appeals, No. 50A03-0212-
                                  PC-00448
                      _________________________________

                               April 20, 2004

Shepard, Chief Justice.

      In 1997, Brian C. Edington was convicted of  attempted  murder  as  an
accomplice, a class A felony.[1]  On direct appeal, Edington contended  that
insufficient  evidence  supported  the  conviction,  that  the  trial  court
wrongly  admitted  identification  testimony,  and  that  the  sentence  was
erroneous.  The Court of  Appeals  affirmed  his  conviction.   Edington  v.
State, No. 50A05-9706-CR-217 (Ind. Ct. App. July 13, 1998).

      In 2002,  Edington  sought  post-conviction  relief,  contending  that
giving  the  jury  instruction  on  attempted  murder   as   an   accomplice
constituted fundamental error because it  lacked  the  element  of  specific
intent to  kill.   He  contended  that  this  claim  about  the  culpability
required to convict an accomplice of attempted murder was not  available  to
him because we had yet to decide Bethel v.  State,  730  N.E.2d  1242  (Ind.
2000).  Of course, in Williams v. State we explained:
      Bethel did not announce a new rule of criminal  procedure  but  rather
      explained what the State was already  required  to  prove  to  gain  a
      conviction  for  attempted  murder  under  a  complicity   theory   or
      otherwise:  ‘[T]he same specific intent to kill must be shown  for  an
      attempted murder as for the crime of murder.’


737 N.E.2d 734, 740-41 n.16 (Ind. 2000) (quoting Zickefoose  v.  State,  270
Ind. 618, 620, 388 N.E.2d 507, 509 (1979) (alteration in original)).[2]

      The post-conviction court denied Edington’s petition.   The  Court  of
Appeals reversed, concluding that giving the improper jury  instruction  was
fundamental error.  Edington v. State, 792 N.E.2d 579 (Ind. Ct. App. 2003).


      We granted transfer, vacating the Court of Appeals  opinion,  and  now
affirm the post-conviction court.  As we have regularly observed:
           [T]he  fundamental  error  exception  to   the   contemporaneous
           objection rule applies to direct  appeals.   In  post-conviction
           proceedings, complaints that something went awry  at  trial  are
           generally cognizable only when  they  show  deprivation  of  the
           right to effective counsel or issues demonstrably unavailable at
           the time of trial or direct appeal.


Sanders v. State, 765 N.E.2d 591, 592 (Ind.  2002);  Canaan  v.  State,  683
N.E.2d 227,  235  n.6  (Ind.  1997).   It  was  wrong  to  grant  relief  on
Edington’s fundamental error claim.

      We thus affirm the post-conviction court’s denial of relief.

Dickson, Boehm, and Rucker, JJ., concur.
Sullivan, J., concurs with separate opinion.
Sullivan, Justice, concurring.

      I concur  in  all  respects.   As  the  author  of  Williams,  I  feel
obligated to acknowledge that language in that opinion1  seems  inconsistent
with other language from Williams quoted in today’s opinion.  To the  extent
they do conflict, I agree that the interpretation given Williams by  today’s
opinion is what the author of Williams intended.

-----------------------
[1]  See Ind. Code 35-41-2-4; Ind. Code 35-41-5-1; Ind. Code 35-42-1-1.

[2]  In Williams, the prisoner had raised the question on direct appeal  and
we were willing to lift the bar of res judicata.  Williams,  737  N.E.2d  at
738.  Edington did not raise his current claim on direct appeal.
1 “[In Bethel,] we explained for the first  time  how  Spradlin  applies  to
persons  ‘convicted  for  the  offense  of  aiding  an  attempted  murder.’”
Williams v. State, 737 N.E.2d  734,  738  (Ind.  2000)  (quoting  Bethel  v.
State, 730 N.E.2d 1242, 1246 (Ind. 2000)).



