Minor v. State

 
IN THE INDIANA SUPREME COURT MINOR, Thomas C., ) Court of Appeals appellant, ) cause no. 49A02-0202-PC-169 v. ) ) Supreme Court STATE OF INDIANA, ) cause no. 49S02-0306-PC-259 appellee. )
PUBLISHED ORDER
    
    Thomas Minor is appealing the denial of post-conviction relief. He claims his appellate lawyer on direct appeal was ineffective for failing to raise on appeal the propriety of Minor's being tried by a six-person jury, in violation of Ind. Code § 35-37-1-1. The Court of Appeals affirmed the denial of post-conviction relief. Minor v. State, 782 N.E.2d 459 (Ind. Ct. App. 2003), reh'g denied.

The Court of Appeals determined that the performance of Minor's appellate lawyer was deficient, but held that reversal is unwarranted because Minor has not shown that his conviction was fundamentally unfair or unreliable. 782 N.E.2d at 462, citing Lockhart v. Fretwell, 506 U.S. 364, 369 (1993), and Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999). As the State conceded on rehearing, however, the analysis of the Court of Appeals failed to take into account the more recent cases of Williams v. Taylor, 529 U.S. 362 (2000), and Segura v. State, 749 N.E.2d 496 (Ind. 2001).

In accordance with Ind. Appellate Rule 58(A), we grant transfer of jurisdiction, vacate the opinion of the Court of Appeals, and remand to the Court of Appeals for reconsideration of its analysis in light of this more recent authority.

    The Clerk is directed to send a copy of this order to the Marion Superior Court, Criminal Division 3; to the Hon. Sanford M. Brook, Chief Judge of the Court of Appeals; to Steve Lancaster, Court of Appeals Administrator; to Janet Roberts Blue, Commissioner of the Court of Appeals; to the Indiana Attorney General; to the State Public Defender; and to all counsel of record.

    Done at Indianapolis, Indiana this 23rd day of June, 2003.

                    
                    /s/    Randall T. Shepard
                        Chief Justice of Indiana
All Justices concur.