Appeal from the Marion Superior Court, Criminal Division Four, The Honorable Patricia J. Gifford, Judge, Cause No. CR75-351D
Buchanan, J., Sullivan, J. Concurs. Garrard, P.j. Concurs.
Petitioner-appellant James Harris (Harris) appeals the denial of his petition for post-conviction relief,[Footnote 1] claiming the post-conviction court erred by concluding that Harris failed to meet his burden of proof that he did not receive effective assistance of trial and appellate counsel because trial counsel waived reading aloud the preliminary instructions to the jury and because appellate counsel failed to include this alleged error in the direct appeal.
The facts most favorable to the post-conviction court's judgment indicate that in June, 1976, Harris was convicted of rape[Footnote 2] at the Conclusion of a jury trial. Harris was sentenced to a fifteen-year term of imprisonment. On direct appeal to the supreme court, that conviction was affirmed in March, 1978. Harris v. State (1978), 268 Ind. 12, 373 N.E.2d 149.
On June 25, 1985, Harris filed a pro se petition for post-conviction relief which was amended on March 21, 1986. Harris sought post-conviction relief upon the claim that his trial and appellate counsel were constitutionally deficient in their legal representation of him. At the commencement of the trial, the State and Harris' attorney waived the reading of preliminary instructions aloud to the jury. Apparently, the written preliminary instructions were also not given to the jury at the beginning of trial but were sent to the jury room at the time of their deliberations. Harris further maintained that his appellate counsel was ineffective by not including in his appeal the failure of the trial Judge to read the preliminary instructions to the jury. The post-conviction court conducted a hearing on Harris' petition and denied post-conviction relief on August 1, 1986.
Harris raises one issue for review, which we restate as the following two issues:
1. Whether the failure to read preliminary instructions to the jury is fundamental error?
2. Whether the post-conviction court erred in determining that Harris failed to meet his burden of proof that he received ineffective ...