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.
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