dissenting.
I respectfully dissent from the majority’s reversal of Carter’s attempted murder conviction. While I agree that the instruction at issue here was erroneous and that Carter’s appellate counsel was deficient for failing to raise the issue on direct appeal, I conclude that Carter has failed to demonstrate prejudice. As a result, I would affirm the post-conviction courts denial of Carter’s petition for post-conviction relief.
If deficient performance by appellate counsel is found, we turn to the prejudice prong to determine whether the issues appellate counsel failed to raise would have been clearly more likely to result in reversal or an order for a new trial. Ritchie v. State, 875 N.E.2d 706, 724 (Ind.2007), reh’g denied; Overstreet v. State, 877 N.E.2d 144, 165 (Ind.2007) (holding that, to show prejudice in a claim of ineffective assistance of appellate counsel, the petitioner must show a reasonable probability that, but for counsels errors, the result of the proceeding would have been different), reh’g denied, cert. denied, — U.S.-, 129 S.Ct. 458, 172 L.Ed.2d 331 (2008). Because Carter’s trial counsel did not object to the instruction at trial, his appellate counsel would have been required to raise the issue on direct appeal as fundamental error.
The Indiana Supreme Court has held that when we consider a claim of fundamental error, “we look to the jury instructions as a whole to determine if they were adequate.” Ringham v. State, 768 N.E.2d 893, 898 (Ind.2002), reh’g denied. Even in cases of “clear Spradlin error,” the Indiana Supreme Court has refused to vacate an attempted murder conviction if “the instructions as a whole sufficiently *328suggested the requirement of intent to kill.” Williams v. State, 737 N.E.2d 734, 737 (Ind.2000) (citing Ramsey v. State, 723 N.E.2d 869, 873 (Ind.2000)) (holding that “the jury instructions, taken as a whole, sufficiently informed the jury of the State’s burden of proving that the Defendant specifically intended to kill the victim”).
Here, the instruction first provided that “[t]he crime of murder is defined by statute as the knowing or intentional killing of another human being.” Petitioner’s Exhibit E (emphasis added). The instruction also stated that the State was required to prove that Carter and his co-defendant “knowingly ... engaged in conduct by striking Donna M. Stegemiller on or about her head by means of a deadly weapon, that is a tire tool and strangling her neck rendering her unconscious.” Id. (emphasis added). However, the instruction then provided that the State was also required to prove that “the conduct was a substantial step toward the commission of the crime of murder: that is the knowing and intentional killing of another human being.” Id. (emphasis added).
While portions of the instruction were erroneous, I conclude that the instruction as a whole sufficiently informed the jury that the State was required to prove an intent to kill. As a result, I conclude that the instruction did not result in fundamental error, and Carter was not prejudiced by his appellate counsel’s failure to raise the issue on direct appeal. I would affirm the post-conviction courts denial of Carter’s petition for post-conviction relief.