                                                                                FILED
                                                                           Apr 04 2018, 10:38 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Stephen T. Owens                                            Curtis T. Hill, Jr.
Public Defender of Indiana                                  Attorney General of Indiana
Jonathan O. Chenoweth                                       Monika Prekopa Talbot
Deputy Public Defender                                      Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Edward Ivy,                                                 April 4, 2018
Appellant-Petitioner,                                       Court of Appeals Case No.
                                                            82A04-1711-PC-2506
        v.                                                  Appeal from the Vanderburgh
                                                            Superior Court
State of Indiana,                                           The Honorable Robert J. Pigman,
Appellee-Respondent                                         Judge
                                                            Trial Court Cause No.
                                                            82D03-1503-PC-1540



Baker, Judge.




Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018                            Page 1 of 15
[1]   Edward Ivy appeals the denial of his petition for post-conviction relief, arguing

      that the post-conviction court should have found that he received the ineffective

      assistance of both trial and appellate counsel. Finding that Ivy received the

      ineffective assistance of trial counsel, we vacate his attempted murder

      conviction, reverse, and remand for further proceedings.


                                                       Facts
[2]   The underlying facts, as described by this Court in Ivy’s direct appeal, are as

      follows:


              On October 28, 2013, Jerald Clark was at home watching
              football with his friend, Robert Drake, when someone knocked
              on his front door. When Clark asked who it was, Ivy identified
              himself. Clark opened the door and let in Ivy and Antwain
              Russell, both of whom Clark had known for approximately one
              year. Clark sat down with his back toward Ivy and Russell, and
              began texting on his phone. Russell then approached Clark from
              behind and stabbed him with a knife. Russell told Clark, “you
              are going to leave my brother alone: Bitch I killed you this time
              you MF, you’re a dead MF.” Tr. at 18. Russell stabbed Clark
              multiple times. When Drake tried to stand up to help, Ivy
              pointed a gun at the back of his head and said, “[D]on't
              move.” Id. at 199. Clark managed to push Russell aside and
              escape the residence. Ivy and Russell fled through the back door
              of the residence and chased after Clark. Clark made it to a
              neighbor’s residence. The neighbor observed that blood was
              “pouring” and “squirting” out of Clark’s neck, and “gushing” out
              of his arm and his back. Id. at 69–70. The neighbor called 911.
              When Clark arrived at the hospital, he was gray, unresponsive,
              and had no pulse. Emergency room personnel revived Clark
              with chest compressions. While at the hospital, Clark lost vital
              signs on at least one other occasion and had to be revived again.

      Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 2 of 15
              Clark underwent surgery and remained in the hospital for
              approximately two and one-half weeks.


              The State charged Ivy with class A felony attempted murder and
              class C felony intimidation. The State also charged Ivy with
              being a habitual offender. A jury trial was held on February 18
              and 19, 2014.


      Ivy v. State, No. 82A01-1404-CR-175, at *1 (Ind. Ct. App. Oct. 10, 2014). At

      trial, Ivy conceded that Russell had tried to kill Clark and that Ivy may have

      aided Russell by holding the gun on Drake, but argued that Ivy had not acted

      with the requisite culpability to be found guilty of attempted murder as an

      accomplice.


[3]   When instructing the jury prior to deliberation, the trial court gave two

      instructions that are relevant to this appeal. Final Instruction Three stated as

      follows:


              The Crime charged in Count I, Attempted Murder, is defined by
              statute as follows:


              A person attempts to commit a murder when, acting with the
              specific intent to kill another person, he engages in conduct that
              constitutes a substantial step toward killing that person.


              Before you may convict the Defendant the State must have
              proved each of the following elements beyond a reasonable
              doubt:


              The Defendant:


      Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018     Page 3 of 15
        1.       Acting with the specific intent to kill Jerald Clark, Jr.


        2.       Did attempt the crime of Murder by knowingly stab [sic]
                 Jerald Clark, Jr. with a knife.


        3.       Which was conduct constituted [sic] a substantial step
                 toward the commission of the intended crime of Murder.


        If the State failed to prove each of these elements beyond a
        reasonable doubt you should find the Defendant not guilty.


        If the State did prove each of these elements beyond a reasonable
        doubt, you should find the Defendant guilty of Attempted
        Murder, a Class A felony.


Appellant’s Direct Appeal App. p. 39. Final Instruction Nine stated as follows:


        A person who knowingly or intentionally aids another in
        committing a crime is guilty of that crime. In order to commit a
        crime of aiding, a person must have knowledge that he is aiding
        the commission of the crime. To be guilty, he does not have to
        personally participate in the crime nor does he have to be present
        when the crime is committed. Mere presence alone is not
        sufficient to prove the Defendant aided the crime. Failure to
        oppose the commission of the crime alone is also insufficient to
        prove that the Defendant aided the crime. However presence at
        the scene of the crime and failure to oppose the crime’s
        commission are factors which may be considered in determining
        whether there was [sic] aiding another to commit the crime.
        Before you can convict the Defendant as an accessory the State
        must prove the elements of the crime and that the Defendant
        knowingly or intentionally aided another to commit the crime.




Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018     Page 4 of 15
      Id. at 47. Trial counsel did not object to the final jury instructions, nor did

      counsel tender an instruction regarding accomplice liability for attempted

      murder.


[4]   The jury found Ivy guilty as charged. The State also alleged that Ivy was an

      habitual offender; Ivy admitted to that allegation and the trial court proceeded

      to sentencing. The trial court sentenced Ivy to thirty-five years for attempted

      murder and enhanced that sentence by thirty years for the habitual offender

      filing, and to a concurrent five-year term for intimidation, for an aggregate

      sentence of sixty-five years. Ivy appealed, raising the sole argument that the

      evidence was insufficient to support the attempted murder conviction. This

      Court affirmed. Ivy, No. 82A01-1404-CR-175, at *2.


[5]   On February 23, 2015, Ivy filed a pro se petition for post-conviction relief,

      which was later amended by counsel on April 18, 2017. Ivy claimed that both

      trial and appellate counsel were ineffective for, among other things, failing to

      object to the jury instructions and raise the issue of jury instructions on appeal,

      respectively. Following a hearing, the post-conviction court denied Ivy’s

      petition on October 5, 2017. Ivy now appeals.


                                    Discussion and Decision
                                       I. Standard of Review
[6]   The general rules regarding the review of a ruling on a petition for post-

      conviction relief are well established:



      Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 5 of 15
              “The petitioner in a post-conviction proceeding bears the burden
              of establishing grounds for relief by a preponderance of the
              evidence.” Fisher v. State, 810 N.E.2d 674, 679 (Ind. 2004).
              “When appealing from the denial of post-conviction relief, the
              petitioner stands in the position of one appealing from a negative
              judgment.” Id. To prevail on appeal from the denial of post-
              conviction relief, a petitioner must show that the evidence as a
              whole leads unerringly and unmistakably to a conclusion
              opposite that reached by the post-conviction court. Weatherford v.
              State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
              conviction court in this case made findings of fact and
              conclusions of law in accordance with Indiana Post–Conviction
              Rule 1(6). Although we do not defer to the post-conviction
              court’s legal conclusions, “[a] post-conviction court’s findings
              and judgment will be reversed only upon a showing of clear
              error—that which leaves us with a definite and firm conviction
              that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
              102, 106 (Ind. 2000) (quotation omitted).


      Hollowell v. State, 19 N.E.3d 263, 268-69 (Ind. 2014).


[7]   A claim of ineffective assistance of trial counsel requires a showing that:

      (1) counsel’s performance was deficient by falling below an objective standard

      of reasonableness based on prevailing professional norms; and (2) counsel’s

      performance prejudiced the defendant such that “‘there is a reasonable

      probability that, but for counsel’s unprofessional errors, the result of the

      proceeding would have been different.’” Davidson v. State, 763 N.E.2d 441, 444

      (Ind. 2002) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). “A

      reasonable probability arises when there is a ‘probability sufficient to undermine

      confidence in the outcome.’” Grinstead v. State, 845 N.E.2d 1027, 1031 (Ind.

      2006) (quoting Strickland, 466 U.S. at 694). “Failure to satisfy either of the two

      Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 6 of 15
      prongs will cause the claim to fail.” Gulzar v. State, 971 N.E.2d 1258, 1261 (Ind.

      Ct. App. 2012). To establish ineffective assistance for failure to object, the

      petitioner must establish that the objection would have been sustained and that

      the petitioner was prejudiced by the failure to object. Law v. State, 797 N.E.2d

      1157, 1164 (Ind. Ct. App. 2003).


                               II. Assistance of Trial Counsel
[8]   Ivy contends that trial counsel was ineffective for failing to object to the jury

      instructions, which he argues were incomplete and insufficient, and for failing

      to tender a proper instruction regarding accomplice liability for attempted

      murder.


                                         A. Applicable Law
[9]   Here, Ivy was charged with attempted murder as an accomplice. Our Supreme

      Court has explained how this charge must be proved as follows:


              in order to establish that a defendant aided, induced, or caused
              an accomplice to commit attempted murder, the State must
              prove that the defendant, with the specific intent that the killing occur,
              knowingly or intentionally aided, induced, or caused his
              accomplice to commit the crime of attempted murder. Thus, to
              convict for the offense of aiding an attempted murder, the State
              must prove: (1) that the accomplice, acting with the specific
              intent to kill, took a substantial step toward the commission of
              murder, and (2) that the defendant, acting with the specific intent
              that the killing occur, knowingly or intentionally aided, induced, or
              caused the accomplice to commit the crime of attempted murder.




      Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018         Page 7 of 15
       Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000) (emphases added) (citing

       Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991)); see also Williams v. State, 737

       N.E.2d 734, 739 (Ind. 2000) (finding fundamental error where “the jury was

       never instructed that it had to find that Williams, as a non-shooting accomplice,

       acted with the specific intent to kill the victim) (emphasis original).


[10]   Our Supreme Court “has recognized the special need to instruct juries precisely

       as to the correct level of culpability for attempted murder because of the

       stringent penalties for that charge and the inherent ambiguity often involved in

       its proof.” Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App. 2005) (citing

       Williams, 737 N.E.2d at 740). Moreover, “both the level of ambiguity and the

       corresponding need for precise jury instructions significantly increase in a

       prosecution for aiding an attempted murder.” Williams, 737 N.E.2d at 740

       (emphasis added).


[11]   We find this Court’s decision in Specht especially instructive. In that case,

       Specht and Eric Schmitt decided to rob a convenience store. In the days

       leading up to the robbery, Specht “talked about stabbing a clerk with a broken

       glass bottle or hitting him with a hockey puck in a sock.” 838 N.E.2d at 1084.

       When they went to the store to commit the robbery, Specht was armed with a

       handgun and Schmitt was armed with a shotgun. Specht walked into the store

       alone with the handgun in his pocket but walked back outside without taking

       any action. Schmitt took the handgun and gave Specht the shotgun, “started

       talking about killing people, began jumping around, and then went into the

       store alone.” Id. at 1085. After Schmitt went inside, Specht heard a gunshot

       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 8 of 15
       and went back into the store. He saw Schmitt shoot a store employee and a

       customer—the employee died and the customer survived. Schmitt took money

       from the cash register, Specht grabbed two packs of cigarettes, and they exited

       the store together. Specht was ultimately convicted of murder, robbery, and

       attempted murder. His direct appeal was unsuccessful, Specht v. State, 734

       N.E.2d 239 (Ind. 2000), and he later filed a petition for post-conviction relief.

       The post-conviction court denied his petition and he appealed.


[12]   On appeal, Specht raised multiple issues, including ineffective assistance of trial

       counsel for failure to object to the jury instructions as they related to accomplice

       liability for attempted murder. Specifically, Specht argued that the instructions

       were fundamentally erroneous because they did not inform the jury that it had

       to find that Specht intended that the customer be killed to find him guilty of

       attempted murder on an accomplice liability theory. This Court analyzed the

       jury instructions as follows:


           • Instruction Number Five related to attempted murder and informed the
             jury that it had to find that Specht acted with the specific intent to
             commit murder. But “[w]hile the instruction does mention specific
             intent, it was phrased in terms of Specht being the principal, i.e., the
             shooter, rather than the accomplice.” Specht, 838 N.E.2d at 1090.

           • Instruction Number Ten, which related to accomplice liability, “does not
             require the jury to find that Specht specifically intended that [the
             customer] be killed when he knowingly or intentionally aided Schmitt in
             the commission of attempted murder.” Id. at 1090-91 (emphasis
             original).




       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 9 of 15
       This Court concluded that the trial court’s “failure to instruct the jury on this

       essential element of accomplice liability for attempted murder” was erroneous.

       Id. at 1090 (citing Woodson v. State, 767 N.E.2d 1022, 1028-29 (Ind. Ct. App.

       2002) (holding that accomplice liability instruction lacking “specific intent to

       kill” language, even when combined with separate attempted murder

       instruction which includes “specific intent to murder” language, does not

       adequately inform jury of need to find the accomplice had the specific intent to

       kill when he took the steps to help the principal)).


[13]   The State contended that even if the instructions were erroneous, any error was

       harmless. And this type of error is, indeed, harmless “where the defendant’s

       intent was not at issue during trial.” Specht, 838 N.E.2d at 1091. But this Court

       found that Specht’s intent was at issue, inasmuch as both of his defenses—that

       he abandoned his intent to rob the store and that he only remained in the store

       because he thought Schmitt would kill him if he tried to leave—“go directly to

       Specht’s intent that [the customer] be killed.” Id. Therefore, the error was not

       harmless. This Court found that trial counsel was ineffective for failing to

       object to the instructions and tender a proper instruction regarding accomplice

       liability, reversed the denial of his petition for post-conviction relief, and

       vacated the attempted murder conviction. Id. at 1091-92.


                                                B. Ivy’s Case
[14]   We find Ivy’s case strikingly similar to Specht. Here, as in Specht, Instruction

       Three related to attempted murder and informed the jury that it had to find that


       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 10 of 15
       Ivy acted with the specific intent to commit murder. But while the instruction

       does mention specific intent, it was phrased in terms of Ivy being the principal

       actor, i.e., the one who stabbed the victim, rather than the accomplice. And

       Instruction Nine, which related to accomplice liability, did not require the jury

       to find that Ivy specifically intended that the victim be killed when he knowingly

       or intentionally aided Russell in the commission of attempted murder. 1 The

       State argues that the combined effect of Instructions Three and Nine satisfies

       the requirements of Bethel, but Specht and Woodson clearly compel us to reach

       the opposite conclusion. Here, as in Specht and Woodson, the trial court’s failure

       to instruct the jury on the essential element of accomplice liability for attempted

       murder constitutes error.


[15]   The State argues that even if the instructions were erroneous, any error was

       harmless. As in Specht, the State contends that Ivy’s intent “was never seriously

       in dispute,” so Ivy was not prejudiced as a result of the error. Appellee’s Br. p.

       13.


[16]   We disagree. In fact, the post-conviction court, which also presided over the

       trial, found as a matter of fact that Ivy’s intent was “a central issue at trial[.]”

       Appellant’s PCR App. Vol. II p. 93. The record reveals that, while Ivy held a

       gun on Drake while Russell stabbed Clark, there was no direct evidence of a

       pre-existing plan between Ivy and Russell, no direct evidence that Ivy had



       1
         Ivy concedes that both instructions are correct statements of the law. He merely argues that they are
       incomplete, as they omit an instruction in line with Bethel.

       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018                         Page 11 of 15
       intended to commit a crime in Clark’s home, no direct evidence that Ivy knew

       or suspected that Russell would stab Clark, and no direct evidence that Ivy

       specifically intended for Russell to kill Clark. Ivy’s entire defense at trial was

       premised on his intent, and his trial counsel devoted almost the entirety of her

       closing argument to that issue. It is apparent that, contrary to the State’s

       argument, Ivy’s intent was squarely at issue. Under these circumstances, as in

       Specht, we simply cannot conclude that the instructional error was harmless.


[17]   By failing to object to the attempted murder and accomplice liability

       instructions as given and by failing to tender a proper instruction, Ivy’s trial

       counsel’s performance at trial fell below an objective standard of

       reasonableness. Moreover, we find that there is a reasonable probability that

       had trial counsel objected to the instructions as given and tendered the

       appropriate instruction, the result of Ivy’s trial on the attempted murder charge

       may have been different. We therefore reverse the denial of the petition for

       post-conviction relief, vacate Ivy’s conviction for attempted murder, and

       remand for further proceedings.2




       2
         Because we find in favor of Ivy on the issue of assistance of trial counsel, we will not also address his
       argument related to appellate counsel. But we echo the Specht Court “that there is a reasonable probability
       that our Supreme Court would have reversed [Ivy’s] attempted murder conviction if his counsel had raised
       the accomplice liability jury instruction issue as fundamental error on appeal, particularly given that the
       Court announced its decision in Bethel, which clarified the elements required for an attempted murder
       conviction in the accomplice liability context,” and this Court announced its decisions in Specht and Woodson,
       over a decade before Ivy’s direct appeal. Specht, 838 N.E.2d at 1096 n.8.

       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018                        Page 12 of 15
[18]   The judgment of the post-conviction court is reversed and remanded for further

       proceedings, and Ivy’s conviction for attempted murder is vacated.


       Brown, J., concurs.
       Riley, J., dissents with a separate opinion.




       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018   Page 13 of 15
                                                    IN THE
           COURT OF APPEALS OF INDIANA

       Edward Ivy,                                                 Court of Appeals Case No.
                                                                   82A04-1711-PC-2506
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff




       Riley, Judge, dissenting.


[19]   I agree with the post-conviction court that Edward Ivy (Ivy) is not entitled to

       post-conviction relief because his trial counsel was not ineffective in failing to

       object to the jury instructions as given. When read together, I find that the jury

       instructions sufficiently apprised the jury of the essential elements necessary to

       convict Ivy of attempted murder under an accomplice liability theory.

       Therefore, I dissent from the majority opinion.


[20]   A trial court “commits fundamental error when i[t] fails to instruct the jury that

       in order to find an accomplice guilty of attempted murder, it must find that the


       Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018                Page 14 of 15
accomplice possessed the specific intent to kill when he knowingly or

intentionally aided, induced or caused the principal to commit the crime of

attempted murder.” Specht v. State, 838 N.E.2d 1081, 1089 (Ind. Ct. App.

2005), trans. denied. In the case at hand, Jury Instruction Number 9 specified

that “[b]efore you can convict [Ivy] as an accessory[,] the State must prove the

elements of the crime and that [Ivy] knowingly or intentionally aided another to

commit the crime.” (Appellant’s Direct Appeal App. p. 47). Thus, to find the

elements of the crime satisfied, the jury necessarily had to determine that Ivy

“[a]ct[ed] with the specific intent to kill” and that he “knowingly or

intentionally aided another.” (Appellant’s Direct Appeal App. pp. 39, 47).

Accordingly, I would affirm the post-conviction court because “any failing in

the first part of the [accomplice liability] jury instruction [which fails to include

the specific intent element] is cured when the instruction is read as a whole.”

(Appellant’s PCR App. Vol. II, p. 88).3




3
  Therefore, although not addressed by the majority opinion, I would also find that Ivy’s appellate counsel
did not render ineffective assistance by declining to raise as an issue that the trial court’s jury instructions
amounted to fundamental error.

Court of Appeals of Indiana | Opinion 82A04-1711-PC-2506 | April 4, 2018                             Page 15 of 15
