Anthony Sanders v. State

ATTORNEYS FOR APPELLANT            ATTORNEYS FOR APPELLEE

Susan K. Carpenter                Steve Carter
Public Defender of Indiana        Attorney General of Indiana

Ruth Johnson                    Adam M. Dulik
Deputy Public Defender            Deputy Attorney General
Indianapolis, Indiana            Indianapolis, Indiana

 
 
 
IN THE

SUPREME COURT OF INDIANA

ANTHONY SANDERS, ) ) Appellant (Petitioner Below ), ) No. 49S02-0204-PC-223 ) in the Supreme Court v. ) ) No. 49A02-0104-PC-202 STATE OF INDIANA, ) in the Court of Appeals ) Appellee (Respondent Below ). )

 
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Alex R. Murphy, Judge Pro Tempore
Cause No. 49G02-8910-CF-123146

 
April 3, 2002
 
SHEPARD, Chief Justice.

    
    Appellant Anthony Sanders was convicted of dealing in cocaine during a 1991 trial and found to be an habitual offender. The Court of Appeals affirmed. Sanders v. State, No. 49A02-9112-CR-563, slip op. (Ind. Ct. App. July 30, 1992).

    Sanders sought post-conviction relief, asserting that the form of the habitual offender instruction was fundamental error and that trial and appellate counsel had been ineffective in failing to raise the error. The post-conviction court ruled against Sanders on both contentions.

    The Court of Appeals reviewed the merits of both claims. It held that there had been no fundamental error and that counsel had not been ineffective. Sanders v. State, No. 49A02-0104-PC-202, slip op. (Ind. Ct. App. Oct. 31, 2002).

    It was wrong to review the fundamental error claim in a post-conviction proceeding. As we explained in Canaan v. State, 683 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.

    We summarily affirm the Court of Appeals with respect to ineffective assistance of counsel. Ind. Appellate Rule 58(A)(2).

    The post-conviction court is affirmed.

Dickson, Sullivan, and Boehm, JJ., concur.
Rucker, J., concurs in result.