from the Vanderburgh Superior Court The Honorable Robert J.
Pigman, Judge Trial Court Cause No. 82D03-1503-PC-1540
ATTORNEYS FOR APPELLANT Stephen T. Owens Public Defender of
Indiana Jonathan O. Chenoweth Deputy Public Defender
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Monika Prekopa Talbot Deputy Attorney General
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. Finding that
Ivy received the ineffective assistance of trial counsel, we
vacate his attempted murder conviction, reverse, and remand
for further proceedings.
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. When Clark asked who it was, Ivy
identified himself. 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 told Clark, "you are going to leave my brother
alone: Bitch I killed you this time you MF, you're a dead
MF." Tr. at 18. 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."
Id. at 199. Clark managed to push Russell aside and
escape the residence. Ivy and Russell fled through the back
door of the residence and chased after Clark. Clark made it
to a neighbor's residence. The neighbor observed that
blood was "pouring" and "squirting" out
of Clark's neck, and "gushing" out of his arm
and his back. Id. at 69-70. The neighbor called 911.
When Clark arrived at the hospital, he was gray,
unresponsive, and had no pulse. Emergency room personnel
revived Clark with chest compressions. While at the hospital,
Clark lost vital signs on at least one other occasion and had
to be revived again.
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.
Ivy v. State, No. 82A01-1404-CR-175, at *1
(Ind.Ct.App. Oct. 10, 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
Before you may convict the Defendant the State must have
proved each of the following elements beyond a reasonable
1. Acting with the specific intent to kill Jerald Clark, Jr.
2. Did attempt the crime of Murder by knowingly stab [sic]
Jerald Clark, ...