dissenting in part and concurring in part.
Although I concur as to Parts I and II, I dissent as to Parts III and IV.
Stewart correctly argues that the trial court failed to properly instruct the jury concerning the State's burden to prove specific intent to commit murder as an essential element of attempted murder. Failure to instruct the jury on this element is fundamental error. Smith v. State (1984) Ind., 459 N.E.2d 355.1 The issue therefore need not be couched in terms of ineffective assistance of trial and appellate counsel to merit review on appeal. Propes, supra, 550 N.E.2d 755.
The following instruction was read to the jury in this case concerning the elements of attempted murder:
"A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the some class as the crime attempted. However, an attempt to commit murder is a Class A felony.
To convict the defendant the State must have proved each of the following elements:
The defendant
1. did knowingly
2. engage in conduct to wit: attempt to commit the crime of Murder by attempting to kill
3. another human being
4. that the conduct was a substantial step toward the commission of the crime of murder." Record at 108.
Stewart argues that the instruction given was inadequate under Smith, supra, 459 N.E.2d 355, and Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299. I agree. In Smith, our Supreme Court noted the two essential elements of attempted murder:
"First, the defendant must have been acting with a specific intent to commit the crime, and second, he must have engaged in an overt act which constitutes a substantial step toward the commission of the crime." 459 N.E.2d at 857, guot-ing Zickfoose v. State (1979) 270 Ind. 618, 622, 388 N.E.2d 507, 510.
The court in Smith found that none of the instructions given informed the jury that, in order for the defendant to be found guilty of attempted murder, "there must first be a finding that when he engaged in the conduct proscribed, he intended to kill [the victim]." 459 N.E.2d at 358. The court stated:
"An instruction which correctly sets forth the elements of attempted murder requires an explanation that the act must have been done with the specific intent to kill." Id. at 858.
Most interestingly, the majority in Smith, held that the conviction was not saved by an instruction reciting the charge and specifically including the assertion that defendant's conduct was "with the intent to kill". 459 N.E.2d at 862 (Pivarnik, J. dissenting).
Our Supreme Court recently followed the Smith holding in Abdul-Wadood, supra. In that case, even though the attempted murder instruction advised that defen*177dant's conduct must be "knowing," it was held defective for failing "to inform the jury that the substantial step toward the crime of murder must have been accompanied by the state of mind which is required for the crime of murder." 521 N.E.2d at 1300.
The instruction given in the present case also failed to inform the jury that, to con-viet the defendant of attempted murder, they must find that the defendant engaged in the conduct proscribed with the intent to kill the victim. The instruction did inform the jury that the State must prove that the defendant "(1) did knowingly (2) engage in conduct to wit: attempt to commit the crime of Murder by attempting to kill." However, our Supreme Court recently held that the language "knowingly attempted to kill" was insufficient to inform the jury of the specific intent element of attempted murder. Jackson v. State (1989) Ind., 544 N.E.2d 853, 854. The present instruction necessarily focuses solely upon "knowing" conduct because it makes no reference to "intentional" conduct. Moreover, the jury was never instructed upon the definition of murder.
Most recently on February 20, 1991, this District in Hall v. State, (1991) Ind.App., 566 N.E.2d 1072, written by Judge Buchanan, joined by Judges Staton and Sullivan, reversed an attempted murder conviction upon grounds that the instructions "failed to inform the jury that a specific intent to commit the crime of murder is an essential element of the crime of attempted murder." At 1074. The instructions in Hall, defined attempted murder and advised that in order to sustain the charge, the State was required to prove that "the defendant performed an act which constituted a substantial step toward the commission of the crime of murder and second, that the defendant did so knowingly or intentionally". At 1075.
Previously, in Terry v. State (1990) 3rd Dist., Ind App., 563 N.E.2d 1301, the same three judges decided a similar case. The majority, however, reached an opposite conclusion. In Judge Staton's opinion, joined by Judge Buchanan, the following two instructions were considered:
"Court's Instruction No. 4
This is a criminal case brought by the State of Indiana against the defendant, James B. Terry. The case was commenced when an information was filed charging the defendant with the crime of attempted murder. That information, omitting the formal parts, reads as follows: 'On or about the 2nd day of May, 1981, in Tippecanoe County, State of Indiana, James B. Terry did attempt to commit the crime of murder by knowingly and intentionally stabbing and cutting Ferris Orange, Jr., about the head and chest, with a knife, causing serious bodily injury to Ferris Orange, Jr., which conduct constituted a substantial step towards the commission of the crime of 'murder; all of which is contrary to the form of the statutes in such cases made and provided, to-wit: Indiana Code 835-41-5-1 and 85-42-1-1, and against the peace and dignity of the State of Indiana.'
Court's Instruction No. 5
The defendant has entered a plea of not guilty and the burden rests upon the State of Indiana to prove to each of you, beyond a reasonable doubt, every essential element of the crime charged.
The charge which has been filed is the formal method of bringing the defendant to trial.
The fact that a charge has been filed, the defendant arrested and brought to trial is not to be considered by you as any evidence of guilt." Slip opinion at 5.
The court held that Instruction 5 was a correct statement of the law and that Instruction 4 merely purported to recite the terms of the charging information and did not seek to instruct the jury upon the applicable law. The court also observed that the crime of murder was correctly defined for the jury as was the crime of attempt. Notwithstanding Abdul-Wadood, supra, the court held that these instructions did correctly apprise the jury that a specific intent to kill was required for conviction.
*178The majority opinion in the case before us is consistent with Terry, but in my view is wholly inconsistent with Jackson, Abdul-Wadood, Smith, and Hall.
The majority opinion here, seeks to distinguish Jackson, upon grounds that in Jackson, the instructions did not advise that the conduct constituted a substantial step toward the killing of the victim. I believe this approach misinterprets the holding of Jackson. In considering the deficiencies of the instructions, the Jackson court held that the particular instruction under serutiny "does not inform the jury of the elements of attempted murder, namely that defendant with intent to kill Allen Smet, took a substantial step to accomplish that end." (Emphasis supplied.) 544 N.E.2d at 854. The importance of the emphasized portion of the statement is readily seen when one observes that the statement clearly made in the context of the Supreme Court's holding that:
"This instruction fails to meet the requirements of Smith [v. State, supra, 459 N.E.2d 355] or Santana [v. State (1986) Ind., 486 N.E.2d 1010]." 544 N.E.2d at 854.
In Smith, supra, the deficiency was not that the jury was not informed that defendant took a substantial step toward the commission of murder, but rather that they were not informed that the substantial step must be taken with the intent to kill. Conversely, the instruction in Santana, supra, was approved because it did inform the jury that defendant must have the specific intent to kill and in addition thereto took a substantial step to accomplish that result.
In the case before us, the jury was not told that defendant must, at the time he engaged in a substantial step toward accomplishing the murder of the victim, have had the specific intent to kill. The instruction in this case runs afoul of Jackson, and Smith and does not contain the saving advisements present in Sontana.
Under Smith, Abdul-Wadood and Jackson, the instructions were fundamentally defective and the error requires reversal.
With respect to the sentences imposed, it is my view that the court erred in its utilization of purported aggravating factors. The trial court found two of them: that a reduced sentence would depreciate the seriousness of the crime, and that Stewart was in need of correctional and rehabilitative treatment. At the time of Stewart's sentencing, both of these considerations were enumerated in the statute setting forth factors which the court, in its discretion, might consider as aggravating circumstances. I.C. 35-50-1A-7 (Burns Code Ed. Repl.1979). However, in Evans v. State (1986) Ind., 497 N.E.2d 919, 923, our Supreme Court indicated that a consideration that a reduced sentence would depreciate the seriousness of the crime "appears to be applicable only when the trial court is considering the imposition of a reduced sentence." Moreover, the sentencing court in this case failed to indicate in any way how or why Stewart was in need of correctional and rehabilitative treatment. A mere recitation of the statutory factors is insufficient to support an enhanced sentence. Erby v. State (1987) Ind., 511 N.E.2d 302. The trial court is required to specify the underlying facts which support a finding that aggravating or mitigating circumstances exist. St. John v. State (1988) Ind., 523 N.E.2d 1353.
In Beasley v. State (1983) Ind., 445 N.E.2d 1372, our Supreme Court found that the failure to specify any aggravating factors was not fundamental error where the sentence did not exceed that allowed by statute, was not manifestly unreasonable, and the facts of the case were such that the sentencing court could easily have given a sufficient statement of the aggravating factors supporting an enhanced sentence, but merely neglected to do so. The court reasoned that the record clearly supported the existence of aggravating factors and therefore defense counsel may have abandoned an issue which would not have resulted in relief to the defendant. However, in the present case, the record does not so clearly support the existence of aggravating factors as to make specification unnecessary.
Perhaps the majority is correct that the error which I perceive does not rise to the *179level of fundamental error. However, because I would reverse Stewart's conviction for attempted murder, his sentence would necessarily be revised in accordance with a new trial upon that charge. In such circumstance, it would not be an imposition upon the judicial machinery to require the court to make a sufficient statement of aggravating and mitigating factors, if any. I believe that the Beasley rationale is not applicable to the present case. Under the scenario called for by my vote, the court should reconsiuer Stewart's sentences upon all convictions and provide a sufficient statement of aggravating and mitigating cireumstances if the court were to decide to impose sentences other than presumptive sentences or to order the sentences to be served consecutively.
The denial of Stewart's Petition for Post-Conviction Relief should be affirmed with respect to his convictions for robbery and criminal confinement. The denial of the Petition for Post-Conviction Relief should be reversed as to the conviction for attempted murder, and the cause should be remanded with instructions to grant relief as to that count and to permit a new trial upon that charge. I would further order the court to reconsider the sentences on the robbery and criminal confinement in light of the outcome of a retrial, if any, upon the attempted murder charge, and in light of its obligation to state with some degree of specificity its reasons for enhancing a sentence or imposing consecutive sentences.
. With more than a slight degree of merit, the majority here indicates a view that the doctrine of "fundamental error" has been expanded in some respects so as to reverse convictions which should be affirmed. See Owens v. State (1986) 2nd Dist., Ind.App., 500 N.E.2d 756 (mere characterization by appellant of error as fundamental, does not trigger automatic review and reversal). Be that as it may, the error here has been clearly categorized by our Supreme Court as "fundamental" in the sense of requiring reversal. Jackson v. State (1989) Ind., 544 N.E.2d 853; Abdul-Wadood v. State (1988) Ind., 521 N.E.2d 1299; Smith v. State (1984) Ind., 459 N.E.2d 355.