Baker, J.
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. …
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. … 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 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.” Clark managed to push Russell aside and escape the residence. … Clark made it to a neighbor’s residence. … The neighbor called 911. When Clark arrived at the hospital, he was gray, unresponsive, and had no pulse. …
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.
… 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.
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. …
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… Final Instruction Nine stated as follows:
A person who knowingly or intentionally aids another in committing a crime is guilty of that 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.
Trial counsel did not object to the final jury instructions, nor did counsel tender an instruction regarding accomplice liability for attempted murder.
The jury found Ivy guilty as charged. … 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 …
On February 23, 2015, Ivy filed a pro se petition for post-conviction relief, which was later amended by counsel on April 18, 2017. … Following a hearing, the post-conviction court denied Ivy’s petition on October 5, 2017. …
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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.
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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) …
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On appeal, … 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.
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… 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.
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 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. …
The State argues that even if the instructions were erroneous, any error was harmless. …
We disagree. … 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 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. … Under these circumstances, as in Specht, we simply cannot conclude that the instructional error was harmless.
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. …
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.
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.
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