Bailey, J.
Paul Newcomb, Jr. (“Newcomb”) was found in possession of a full array of methamphetamine precursors; his stated purpose was to give them to an unidentified friend. Despite an absence of evidence that either Newcomb or a phantom accomplice had begun to manufacture methamphetamine, Newcomb was convicted of Dealing in Methamphetamine, as a Class B felony, as opposed to the lesser offense of Possession of Precursors with Intent to Manufacture, then a Class D felony. A panel of this Court affirmed the conviction, upon adoption of the State’s argument that Newcomb was liable for the greater offense, as an accomplice. Newcomb sought post-conviction relief and now appeals the partial denial of his petition. He presents a claim of fundamental error, couched in allegations of ineffective assistance of trial and appellate counsel, because he stands convicted of a crime that did not occur. The State does not challenge the underlying claim of insufficient evidence to support the greater offense, but rather argues that counsel did not perform deficiently. Indeed, defense advocacy fell within professional norms. Thus, we are now squarely presented with whether a miscarriage of justice can be corrected within the confines of post-conviction relief, which generally addresses ineffectiveness of counsel or a claim demonstrably unavailable at trial and upon direct appeal. Here, the deprivation of due process has resulted in the loss of an additional thirteen years of liberty. We reverse and remand with instructions to vacate Newcomb’s conviction of Manufacturing Methamphetamine, a Class B felony, enter a conviction for the possession offense, and conduct further proceedings upon the habitual substance offender allegation.
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Newcomb argues that his trial counsel was ineffective for “conced[ing] that Newcomb was guilty of manufacturing methamphetamine as a principal” and “fail[ing] to respond to the State’s [rebuttal] argument that Newcomb could be found guilty of manufacturing as an accomplice” although the manufacturing process had not begun. Appellant’s Brief at 13. He also contends that trial counsel was deficient for failing to correct a misstatement of evidence made by the Prosecutor in rebuttal argument; that is, that an officer had testified Newcomb acknowledged that the items in his vehicle “had a purpose.” (Tr. Vol. II, pg. 388.) This factual contention was later incorporated into the State’s appellee’s brief, without correction or challenge from appellate counsel – however, Newcomb had actually admitted only knowing “what they were.” Appellate counsel did not file a reply brief or seek transfer to challenge any misstatement of the breadth of Newcomb’s admissions or to argue a mistake of law as to accomplice liability.
Newcomb’s trial and appellate counsel each argued that the dealing by manufacturing offense was not supported by sufficient evidence. Such arguments were unavailing, and, at some point, counsel gave up. Newcomb’s argument of ineffectiveness distills to a claim of abandonment of advocacy.
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We are not persuaded that trial counsel’s unfortunate reference to “discretion,” taken in context, amounts to an admission that Newcomb could properly be found guilty as charged. Inasmuch as defense counsel strenuously argued that the State had not proven the commission of a B felony, we are hard-pressed to say that his performance was deficient.
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According to Newcomb, appellate counsel “failed to respond to the State’s argument that Newcomb was guilty as an accomplice to manufacturing, [and] then failed to challenge the Court of Appeals’ adoption of that argument, despite the lack of evidence that any manufacturing had begun.” Appellant’s Brief at 17. Although he does not claim that appellate counsel is routinely required to file a reply brief and a petition for transfer, he argues that failure to do so here amounted to deficient performance.
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Newcomb possessed some methamphetamine residue and a panoply of precursors. But, in contrast to the facts of Lothamer, there is no evidence that Newcomb was ever present at the scene of methamphetamine manufacturing or that he had provided items used in that process. Newcomb had not used the precursors in his vehicle to begin manufacture; there is no evidence that his unidentified friend, if indeed the friend existed, had begun manufacturing. Although an accomplice need not participate in each element of an offense, there must be an offense.
During the post-conviction hearing, appellate counsel testified that she did not believe a reply brief was warranted because her argument of insufficient evidence remained the same.
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Grounds for error are to be framed in an appellant’s initial brief; if those grounds are addressed for the first time in the reply brief, they are waived. Snow v. State, 137 N.E.3d 965, 969 (Ind. Ct. App. 2019), trans. denied. Although appellate counsel could not raise and have this Court address a new issue in a reply brief, she could have distinguished Lothamer within the context of the insufficiency of evidence issue already raised. Again, however, given the substantial and appropriate advocacy in appellate counsel’s identifying a failure of proof, we cannot say that the performance was deficient.
At bottom, counsel performed adequately, but Newcomb stands convicted of an offense that he did not commit. We have often repeated the general limitation upon post-conviction claims enunciated by our Indiana Supreme Court:
It was wrong to review the fundamental error claim in a postconviction proceeding. As we explained in Canaan v. State, N.E.2d 227, 235 n. 6 (Ind. 1997), the 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) (emphasis added.) Now we are confronted with circumstances not encompassed by generalities. Importantly, while Sanders disapproves of free-standing fundamental error claims as a general proposition, the decision did not categorically prohibit recognition of fundamental error where, as here, the crime alleged did not occur and there has been a miscarriage of justice.
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We understand our Supreme Court’s guidance in Sanders as to the two categories which are “generally” exclusive, as opposed to definitely exclusive, together with the background of Martin, to mean that we are not compelled to ignore the very rare case in which a petitioner is convicted of a crime that the State has not shown was committed. The evidence showed, and the State conceded, that there had been no actual manufacturing of methamphetamine. The trial court agreed, in effect, that Newcomb had committed the offense of Possession of Precursors with Intent to Manufacture, a Class D felony, but nevertheless sentenced Newcomb for a Class B felony.
Newcomb has steadfastly admitted that he committed a lesser offense. “A lesser included offense is necessarily included within the greater offense if it is impossible to commit the greater offense without first having committed the lesser.” Bush, 772 N.E.2d at 1023–24. At the time of Newcomb’s offense, Indiana Code Section 35-48-4-14.5(b) provided that a person who possessed two or more chemical reagents or precursors with the intent to manufacture methamphetamine committed a Class D felony. “[I]t is impossible to knowingly or intentionally manufacture methamphetamine without first possessing the chemical precursors of methamphetamine with the intent to make the drug. Methamphetamine cannot be conjured up out of thin air.” Bush, 772 N.E.2d at 1024. Accordingly, we have found that possession of precursors with intent to manufacture methamphetamine is a lesser included offense of manufacturing methamphetamine. Scott v. State, 803 N.E.2d 1231, 1238 (Ind. Ct. App. 2004). Here, Newcomb possessed multiple precursors. There is testimony to support a reasonable inference that Newcomb had the requisite intent to manufacture in the future. There exists sufficient evidence to support Newcomb’s conviction of Possession of Precursors with Intent to Manufacture.
We are constrained to follow the rules of post-conviction procedure. That said, the appellant has attempted at every stage of the trial and appellate proceedings to comply with the relevant rules and draw attention to a wrongful conviction. The courts have not afforded him the relief due. In these rare circumstances of fundamental error raised in the context of ineffective assistance of counsel but demonstrated as a matter of law, we reverse the partial denial of Newcomb’s petition for post-conviction relief. We remand with instructions to vacate the conviction for Dealing in Methamphetamine, enter a conviction for Possession of Precursors with Intent to Manufacture, conduct proceedings upon the habitual substance offender allegation, and sentence Newcomb accordingly.
Reversed and remanded with instructions.
Najam, Sr. J., concurs.
Bradford, C.J., dissents in part and concurs in part with opinion.
Bradford, C.J., dissents in part and concurs in part with opinion.
I agree with the majority’s conclusion that Newcomb has failed to establish that either trial or appellate counsel provided him with ineffective assistance.
However, I must disagree with the majority’s suggestion that Newcomb “presents a claim of fundamental error, couched in allegations of ineffective assistance of trial and appellate counsel[.]” Slip op. p. 2. Rather, in correcting what it refers to as a “miscarriage of justice,” slip op. p. 2, I believe that the majority raises the issue of fundamental error sua sponte and effectively reverses a prior decision of this court, in which transfer was denied. See Newcomb v. State, 20A05-1503-CR-108 (Ind. Ct. App. Jan. 12, 2016), trans. denied. By raising and deciding the issue sua sponte, this court has decided the issue of fundamental error without granting the parties’ lawyers with the opportunity to weigh in on the issue.
In presenting his arguments on appeal, Newcomb asserts only that he received ineffective assistance from both his trial and appellate counsel. Newcomb did not present a claim of fundamental error. The Indiana Supreme Court recently reiterated that it disfavors sua sponte rulings. See Conley v. State, 183 N.E.3d 276, 283 (Ind. 2022) (citing Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012)). I therefore must dissent with the majority’s conclusion that vacation of Newcomb’s underlying conviction was appropriate.