MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 15 2017, 7:31 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT, PRO SE ATTORNEYS FOR APPELLEE
Jason Eichelberger Curtis T. Hill, Jr.
Carlisle, Indiana Attorney General of Indiana
Jodi Kathryn Stein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jason Eichelberger, December 15, 2017
Appellant-Petitioner, Court of Appeals Case No.
49A04-1602-PC-395
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt M. Eisgruber,
Appellee-Defendant. Judge
Trial Court Cause No.
49G01-9908-PC-143245
Pyle, Judge.
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Statement of the Case
[1] Jason Eichelberger (“Eichelberger”) appeals the denial of his petition for post-
conviction relief. Finding no error, we affirm the post-conviction court’s denial
of Eichelberger’s petition.
[2] We affirm.
Issue
The sole issue for our review is whether the post-conviction court
erred in denying Eichelberger’s petition for post-conviction relief.
Facts
[3] The underlying facts in this case, taken from the Indiana Supreme Court’s
opinion in Eichelberger’s first direct appeal, are as follows:
[O]n August 17, 1999, James Beasley, Michael Gullett, and the
defendant were socializing in the back yard of a residence on
East Minnesota Street in Indianapolis. A fight broke out among
them, alerting bystanders, who observed Beasley on the ground,
and the defendant, holding a knife, standing over him. One
bystander called out, “I can’t believe you’re going to kill him in
front of two witnesses,” and Beasley escaped. He started
running, followed by Gullett and the defendant, who still had the
knife in hand. The chase ended two blocks away, when Beasley
tripped. Gullett was the first to reach him, and knocked him
back down as he attempted to rise. The defendant then caught
up, and said, “You made me bleed. [N]ow, [expletive deleted],
you’re going to bleed.” He put his left arm around Beasley’s
neck and underneath his arm, and stabbed Beasley in the chest
with the knife. As Gullett and the defendant ran away, Beasley
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went to a nearby house for help but died of the stab wound,
which had punctured his lung and the left ventricle of his heart.
Eichelberger v. State, 773 N.E.2d 264, 266 (Ind. 2002) (record citations omitted).
[4] The State charged Eichelberger with murder. During Eichelberger’s 2000 trial,
trial counsel tendered an instruction on voluntary manslaughter, which the trial
court gave over the State’s objection. The jury convicted Eichelberger as
charged, and the trial court sentenced him to fifty-five (55) years. On direct
appeal, Eichelberger challenged the sufficiency of the evidence supporting his
conviction. The Indiana Supreme Court concluded that the evidence was
sufficient to support Eichelberger’s conviction and affirmed it. Id.
[5] Eichelberger later filed a petition for post-conviction relief arguing that his trial
counsel was ineffective because counsel had “tendered a flawed instruction on
voluntary manslaughter and failed to ensure that the jury was properly
instructed as to the elements of murder.” (First Post-Conviction App. 47). The
post-conviction court denied Eichelberger’s petition. However, this Court
reversed the denial of the petition after concluding that Eichelberger’s counsel
had “failed to ensure that the jury was properly instructed that the absence of
sudden heat is an element of murder on which the State bears the burden of
proof.” Eichelberger v. State, 852 N.E.2d 631, 639 (Ind. Ct. App. 2006), trans.
denied. On remand, the trial court vacated Eichelberger’s conviction and
ordered a new trial.
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[6] Eichelberger’s second jury trial began in May 2007. Eichelberger testified that,
on the day of Beasley’s murder, he wanted to get high so he began huffing a
substance called toluene. Eichelberger testified that the toluene affected him
“dramatically” and that it caused his mind to feel like it was “all over the
place.” (Second Trial Tr. 459-60). At the close of the evidence, the trial court
informed the parties that it was including a final jury instruction on voluntary
intoxication that provided as follows:
Voluntary intoxication is not a defense to a charge of Murder.
You may not take voluntary intoxication into consideration in
determining whether the defendant acted intentionally,
knowingly, [or] recklessly as alleged in the information.
(Second Appeal App. 222). Eichelberger’s counsel did not object to the
instruction. The jury convicted Eichelberger of murder, and the trial court
sentenced him to fifty-five (55) years.
[7] In his second direct appeal, Eichelberger argued that the trial court had abused
its discretion by giving the voluntary intoxication instruction. Because
Eichelberger’s trial counsel had not objected to the instruction and did not
argue on appeal that the giving of the instruction constituted fundamental error,
we concluded that the issue was waived. Eichelberger v. State, No. 49A04-0706-
CR-331, slip op. at 2 (Ind. Ct. App. February 8, 2008).
[8] We further concluded that, waiver notwithstanding, the trial court did not err
by instructing the jury on voluntary intoxication because the instruction was a
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correct statement of the law supported by evidence in the record. Id. We
specifically explained as follows:
Here, the trial court did not err by instructing the jury on
voluntary intoxication because the instruction was a correct
statement of the law supported by evidence in the record.
Indiana Code Ann. § 35–41–3–5 (West, PREMISE through 2007
1st Regular Sess.) explains that intoxication is only a defense if
the intoxication results from the introduction of a substance into
the defendant’s body (1) without his consent; or (2) when he did
not know that the substance might cause intoxication.
Eichelberger testified that on the day he stabbed Beasley he
wanted to get high so he huffed toluene. Eichelberger does not
assert that the introduction of the toluene into his body was
without his consent or that he did not know the toluene would
cause intoxication. Therefore, the trial court properly instructed
the jury that in this case Eichelberger’s voluntary intoxication
was not a defense to the charge of murder.
Id. Accordingly, we affirmed Eichelberger’s murder conviction. Id.
[9] Thereafter, Eichelberger filed an amended petition for post-conviction relief in
July 2011 wherein he argued that trial counsel was ineffective because he had
failed to object to the jury instruction on voluntary intoxication. Eichelberger
also argued that appellate counsel was ineffective because she had failed to
argue that the giving of the voluntary intoxication instruction was fundamental
error.
[10] Following a hearing, the post-conviction court issued a detailed order denying
Eichelberger’s petition. Eichelberger appeals the denial of his post-conviction
petition.
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Decision
[11] At the outset, we note that Eichelberger proceeds pro se. A litigant who
proceeds pro se is held to the same rules of procedure that trained counsel is
bound to follow. Smith v. Donahue, 907 N.E.2d 553, 555 (Ind. Ct. App. 2009),
trans. denied, cert. dismissed. One risk a litigant takes when he proceeds pro se is
that he will not know how to accomplish all the things an attorney would know
how to accomplish. Id. When a party elects to represent himself, there is no
reason for us to indulge in any benevolent presumption on his behalf or to
waive any rule for the orderly and proper conduct of his appeal. Foley v.
Mannor, 844 N.E.2d 494, 502 (Ind. Ct. App. 2006).
[12] We now turn to the merits of Eichelberger’s argument that the post-conviction
court erred in denying his petition. Defendants who have exhausted the direct-
appeal process may challenge the correctness of their convictions and sentences
by filing a petition for post-conviction relief. Stevens v. State, 770 N.E.2d 739,
745 (Ind. 2002), reh’g denied. Post-conviction proceedings are not an
opportunity for a “super-appeal,” and not all issues are available. Timberlake v.
State, 753 N.E.2d 591, 597 (Ind. 2001), reh’g denied. Rather, subsequent
collateral challenges to convictions must be based on grounds enumerated in
the post-conviction rules. Ind. Post-Conviction Rule 1(1); Timberlake, 753
N.E.2d at 597. In post-conviction proceedings, complaints that something went
awry at trial are cognizable only when they show deprivation of the right to
effective counsel or issues demonstrably unavailable at the time of trial or direct
appeal. Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002).
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[13] Post-conviction proceedings are civil proceedings, requiring the petitioner to
prove his claims by a preponderance of the evidence. Stevens, 770 N.E.2d at
745. We review the post-conviction court’s legal conclusions de novo but accept
its factual findings unless they are clearly erroneous. Id. at 746. We will not
reweigh the evidence or judge the credibility of the witnesses; we examine only
the probative evidence and reasonable inferences that support the decision of
the post-conviction court. Stephenson v. State, 864 N.E.2d 1022, 1031 (Ind.
2007), reh’g denied. The petitioner must establish that the evidence as a whole
leads unerringly and unmistakably to a decision opposite that reached by the
post-conviction court. Smith v. State, 770 N.E.2d 290, 295 (Ind. 2002).
[14] A defendant claiming that his attorney was ineffective must show by a
preponderance of the evidence that: (1) counsel’s performance fell below the
objective standard of reasonableness based on “prevailing” professional norms;
and (2) the defendant was prejudiced by this substandard performance, i.e.,
there is a “reasonable probability” that, but for counsel’s errors or omissions,
the outcome of the case would have been different. Stephenson, 864 N.E.2d at
1031.
[15] Here, Eichelberger argues that trial counsel was ineffective because he failed to
object to the voluntary intoxication instruction and that appellate counsel was
ineffective because she failed to argue that the giving of the voluntary
intoxication constituted fundamental error. The State responds that these
arguments are barred by the doctrine of res judicata. We agree with the State.
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[16] As a general rule, when a reviewing court decides an issue on direct appeal, the
doctrine of res judicata applies. Jervis v. State, 28 N.E.3d 361, 368 (Ind. Ct. App.
2015), trans, denied. The doctrine of res judicata prevents the repetitious litigation
of that which is essentially the same dispute. Id. A post-conviction petitioner
cannot escape the effect of claim preclusion merely by using different language
to phrase an issue and define the alleged error. Id. Where an issue, although
differently designated, was previously considered and determined in a criminal
defendant’s direct appeal, the State may defend against the defendant’s post-
conviction relief petition on grounds of prior adjudication or res judicata. Id.
[17] In his second direct appeal, Eichelberger argued that the trial court had abused
its discretion by giving the voluntary intoxication instruction. This Court found
that the issue was waived because trial counsel had not objected to the issue and
because appellate counsel had not argued that the giving of the instruction was
fundamental error. Eichelberger, No. 49A04-0706-CR-331, slip op. at 2.
However, we further concluded that waiver notwithstanding, the trial court had
not abused its discretion because the instruction was a correct statement of the
law supported by evidence in the record. Id. Because Eichelberger’s claim of
instructional error was fully litigated in his second direct appeal, his effort to
redesignate and repackage it as ineffective assistance of trial and appellate
counsel claims is barred by res judicata. See Jervis, 28 N.E.3d at 368-69.
Accordingly, the post-conviction court did not err in denying Eichelberger’s
petition.
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[18] Affirmed.
[19] May, J., and Brown, J., concur.
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Jason Eichelberger v. State of Indiana (mem. dec.)
Combined Opinion