concurring in result.
I concur in the result reached by the majority, but write separately to clarify why I think the post-conviction court properly concluded that Ross’s counsel was not deficient based on counsel’s failure to object to the trial court’s instruction on voluntary manslaughter.
Prior to Ross’s trial in October 2001, our supreme court’s opinion in Wright v. State, 658 N.E.2d 563, 566-67 (Ind.1995), established a three-step process a trial court must undertake to determine whether to give a proposed instruction on a lesser offense. The first step is the important one here; it provides that the trial court should determine whether the lesser offense is either “inherently” or “factually” included in the offense charged by comparing the statutes defining the two offenses. Id. at 566. If the lesser offense can be proved by the same elements or fewer than all the elements of the offense charged, or if the lesser offense can be proved by a lower mens rea, then the lesser offense is inherently included in the offense charged. Id. If the lesser offense is not inherently included in the offense charged, it still may be factually included “[i]f the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense....” Id. at 567. As the majority correctly recognizes, see op. at 836, in Ross’s case, voluntary manslaughter was neither inherently nor factually included in the offense charged and therefore, pursuant to Wright, the trial court’s instruction on the lesser offense should not have been given, 658 N.E.2d at 567 (citing Straub v. State, 567 N.E.2d 87, 90 (Ind.1991)).
However, as the majority also correctly recognizes, the first step of the three-step process outlined in Wright has been overlooked in cases where the proposed lesser offense is voluntary manslaughter because our supreme court and this court have stated repeatedly, without realizing significant distinctions between voluntary manslaughter as a Class A felony and voluntary manslaughter as a Class B felony, that the offense is inherently a lesser included offense of murder. See Brown v. State, 751 N.E.2d 664, 671 (Ind.2001); White v. State, 699 N.E.2d 630, 634 (Ind.1998); Champlain v. State, 681 N.E.2d 696, 701-02 (Ind.1997); Clark v. State, 834 N.E.2d 153, 158 (Ind.Ct.App.2005); Morgan v. State, 759 N.E.2d 257, 264 (Ind.Ct.App.2001), Garrett v. State, 756 N.E.2d 523, 528 (Ind.Ct.App.2001), trans. denied.
*838This court’s decision in Washington v. State, 685 N.E.2d 724 (Ind.Ct.App.1997), is illustrative of this oversight and also is particularly relevant here because it contains facts that are substantially similar to Ross’s case. The defendant in Washington was leaving a nightclub and walking to his car when the victim, with whom the defendant had an ongoing feud, approached the defendant and made threatening remarks. When one of the defendant’s friends attempted to quell the situation, the victim pulled out a gun and fired it. In response, the defendant grabbed a gun and ran away from the victim. As he ran, the defendant shot the victim several times in the chest killing him.
The State charged the defendant with murder. At the close of evidence, the trial court sua sponte instructed the jury on voluntary manslaughter as a Class A felony and the jury found him guilty of this count. In affirming the trial court’s decision to give the instruction, this court concluded voluntary manslaughter is inherently included as a lesser offense of murder: “Applying the first step [of the process outlined in Wright ] to the case at bar, it is clear that voluntary manslaughter is an inherently lesser-included offense of murder. Voluntary manslaughter is simply murder mitigated by evidence of sudden heat.” Washington, 685 N.E.2d at 727. The court’s reasoning, however, fails to distinguish between voluntary manslaughter as a Class A felony and voluntary manslaughter as a Class B felony. Although the latter is inherently included as a lesser offense of murder, the former is not because it contains an element that murder does not; namely, that the killing is “committed by means of a deadly weapon.” Ind.Code § 35-42-l-3(a)(2).
The confusion sowed by cases such as Washington create a dilemma in the context of an ineffective assistance of counsel claim such as Ross’s: can counsel be deemed deficient for failing to object to an instruction where Indiana appellate courts have rendered conflicting opinions on whether such an objection must be sustained? The majority concludes counsel cannot, reasoning that deficiency cannot be based on “an incorrect or overbroad statement of the law that apparently has escaped the notice of our courts for twenty years” and noting that “[o]ur task is not to review alleged errors in Ross’s trial as if this case were on direct appeal, but to assess the competency of his trial counsel.” Op. at 836. Although I generally agree with these observations, I think this issue is more appropriately resolved by considering our standard of review in appeals from the denial of a petition for post-conviction relief. That standard requires us to affirm unless “the evidence as a whole leads unerringly and unmistakably to a decision opposite that reached by the post-conviction court.” Stevens v. State, 770 N.E.2d 739, 745 (Ind.2002), cert. denied, 540 U.S. 830, 124 S.Ct. 69, 157 L.Ed.2d 56 (2003). Applying this standard to Ross’s deficiency argument, the question for this court becomes whether the evidence unerringly and unmistakably leads to a conclusion that the trial court would have sustained an objection to the voluntary manslaughter instruction on the grounds that it is not inherently included as a lesser offense of murder. Based on the conflict in the caselaw described above, I would conclude the evidence does not unerringly and unmistakably lead to such a conclusion. For this reason, I concur in the result reached by the majority.