concurring in result with separate opinion.
I concur in the majority’s decision to deny the State’s petition for rehearing and reaffirm our earlier decision granting Woodson post-conviction relief and a new trial. However, because I believe the Supreme Court’s pronouncement in Sanders v. State, 765 N.E.2d 591 (Ind.2002), is extremely clear that fundamental error is rarely, if ever, available in post-conviction proceedings, I do not believe that we should analyze Woodson’s challenge to the jury instructions given at his trial as fundamental error.
Woodson contends that the failure to instruct the jury in his trial for attempted murder that specific intent to commit murder is required for accomplice liability constitutes fundamental error. His counsel did not object to the allegedly erroneous instructions at trial. The majority concludes that this case is one of the few post-conviction cases in which fundamental error analysis is not precluded because the issue Woodson raises was not recognized until after his trial and direct appeal, making the issue demonstrably unavailable at the time of his trial and direct appeal. I disagree with the majority’s statement that the issue was not recognized by our supreme court until after Woodson’s trial and direct appeal. See op. at 476. Sprad-lin v. State was decided in 1991, before Woodson’s trial and direct appeal.2 The incident from which his charges stemmed occurred in 1993. A Spradlin claim was clearly available at the time of his trial.
I acknowledge that Spradlin did not address an erroneous attempted murder instruction in the context of accomplice liability. That was not done until 2000, in Bethel v. State, 730 N.E.2d 1242 (Ind. 2000). However, because the Spradlin *480rule was the law in Indiana for attempted murder at the time of Woodson’s trial and direct appeal, the opportunity to seek its extension to accomplice liability was available to either or both his trial and appellate counsel. Counsel could have, in good faith, argued for an extension of the law and at least have preserved the error for appellate review at the time.3 Thus, although I would hold that there was no fundamental error because the claim was made in a post-conviction proceeding, I would nonetheless hold that Woodson received the ineffective assistance of trial and appellate counsel and was entitled to a new trial.
. And, although Spradlin is the case we most often refer to regarding the "specific intent to kill” element of an attempted murder instruction because it is the clearest pronouncement of this rule, the rule existed prior to Spradlin, as well. See Smith v. State, 459 N.E.2d 355, 358 (Ind. 1984) ("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.”).
. Woodson's post-conviction petition and subsequent appeal raised ineffective assistance claims. We noted in our original opinion that because we were deciding the case on fundamental error, we did not need to address his alternate claims, and we further noted that "an ineffective assistance claim cannot be based on counsel’s failure to argue the legal reasoning of cases not yet decided at the time of trial." Woodson v. State, 767 N.E.2d 1022, 1029 n. 4 (Ind.Ct.App.2002) (quoting Shaffer v. State, 674 N.E.2d 1, 7 (Ind.Ct.App.1996)). I find this case to be distinguishable from Shaffer. In Shaffer, the issue was counsel’s failure to object to the admission of expert bolstering testimony in a child molesting prosecution. At the time of the trial, the law in Indiana affirmatively allowed such testimony, and it was not until three months after trial that our supreme court handed down a case changing the law. 674 N.E.2d at 7. In this case, counsel would not have been arguing for a change in the law, but for an extension of existing law. As the successful claim in Bethel shows, such an argument could have been well-taken.