Court of Appeals of Indiana | Memorandum Decision 49A02-1707-PC-1651 | April 12, 2018 Page 1 of 25

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Cynthia M. Carter

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Chandra K. Hein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Scottie Edwards,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

April 12, 2018

Court of Appeals Case No. 

49A02-1707-PC-1651

Appeal from the Marion Superior 

Court, Criminal Division 6

The Honorable Mark D. Stoner, 

Judge

The Honorable Jeffrey L. Marchal, 

Magistrate

Trial Court Cause No.

49G06-0102-PC-036584

Mathias, Judge.
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[1] Scottie Edwards (“Edwards”) appeals the order of the Marion Superior Court 

denying his petition for post-conviction relief. Edwards presents three issues on 

appeal, which we renumber and restate as: 

I. Whether the post-conviction court clearly erred by not applying the law of

the case doctrine; 

II. Whether the post-conviction court clearly erred in concluding that 

Edwards was not denied the effective assistance of trial counsel;

III. Whether the post-conviction court clearly erred in concluding that 

Edwards was not denied the effective assistance of appellate counsel; and

IV. Whether the post-conviction court abused its discretion in denying 

Edwards’s motion to correct error. 

We affirm. 

Facts and Procedural History

[2] The facts underlying Edwards’s conviction were first set forth by this court in 

Edwards’s direct appeal from his first jury trial as follows: 

Lynn Ford, the victim of the stabbing in this case, began dating 

Edwards’s ex-wife in January of 2001. In early February of 2001, 

witnesses saw Edwards sitting in a vehicle in the apartment 

complex where Ford lived, watching Ford’s apartment by using 

binoculars. One witness also saw Edwards remove mail from 

Ford’s mailbox.

On February 11, 2001, Ford returned to his apartment following 

a date with Edwards’s ex-wife. As he walked up the sidewalk, he 

was confronted by Edwards. Both individuals testified to 

differing versions of what occurred. Edwards claimed that Ford 

punched him and that he only stabbed Ford in self-defense. Ford 

claimed that Edwards lunged at him, knocking him to the ground 

and then stabbed him several times. Ford was taken to the 
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hospital and treated for stab wounds to the back, arm, side, and 

back of the head, and for a punctured lung.

Edwards v. State, 773 N.E.2d 360, 362 (Ind. Ct. App. 2002), trans. denied

(“Edwards I”). 

A. Edwards’s First Trial and Appeal

[3] The State charged Edwards with attempted murder. At a jury trial, the trial 

court, over Edwards’s objection, gave the following instruction on attempted 

murder: 

The crime of attempted murder is defined as follows: A person 

attempts to commit a murder when, acting with the conscious 

purpose of killing another person, he engages in conduct that 

constitutes a substantial step toward killing the person.

To convict the Defendant of attempted murder, the State must 

have proved each of the following elements beyond a reasonable 

doubt:

The Defendant, Scottie R. Edwards

1. acting with the specific intent to kill Lynn Ford

2. did knowingly stab with a deadly weapon, that is, a knife at 

and against the person of Lynn Ford

3. which was conduct constituting a substantial step toward the

commission of the intended crime of killing Lynn Ford.

If the State failed to prove each of these elements beyond a 

reasonable doubt, you cannot [find] the defendant guilty.
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If the State did prove each of these elements beyond a reasonable 

doubt, you may find the defendant guilty of the crime of 

Attempt[ed] Murder, a Class A felony. 

Id. at 362–63 (emphasis and alterations added in Edwards I). Edwards also 

tendered an instruction on the lesser-included offense of battery, which the trial 

court denied. The jury found Edwards guilty as charged, and Edwards 

appealed. 

[4] On appeal, Edwards claimed that the trial court erred in instructing the jury 

regarding the requisite mens rea for the crime of attempted murder, that the trial 

court erred in refusing to instruct the jury on the lesser-included offense of 

battery, and that the trial court erred by admitting into evidence Edwards’s 

statement to the police. 

[5] The Edwards I court agreed with Edwards that the trial court’s instruction 

regarding attempted murder amounted to reversible error. Id. at 363–64. The 

court noted that, in Spradlin v. State, 569 N.E.2d 948 (Ind. 1991), our supreme 

court first announced the “now well-known standard” that “a trial court may 

not instruct the jury that a ‘knowing’ mens rea is sufficient to establish guilt for 

attempted murder.” Edwards I at 363. Because Edwards properly preserved the

issue by objecting to the erroneous instruction, he did not have to establish 

fundamental error and instead was entitled to “automatic reversal.” Id. (citing

Greer v. State, 643 N.E.2d 324, 326 (Ind. 1994)). The Edwards I court concluded: 

The instruction as given was clearly improper. As has been 

mandated by both our Supreme Court and this court, 
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“knowingly” should not be used in an instruction on attempted 

murder. While the correct mens rea was included in the jury 

instruction, we have no means of determining whether the use of 

the term “knowingly” may have impacted the jury’s 

determination of Edwards’s guilt. Accordingly, we reverse 

Edwards’s conviction for attempted murder.

Edwards I, 773 N.E.2d at 363–64 (citations and footnotes omitted).1

B. Edwards’s Second Trial and Appeal

[6] On remand, Edwards was again tried for attempted murder. The State did not 

amend the charging information, which mentioned both the improper 

“knowingly” mens rea but also alleged that Edwards had the intent to kill Ford: 

Scottie Edwards, on or about February 11, 2001, did attempt to 

commit the crime of Murder, which is to knowingly kill another 

human being, namely: Lynn Ford, by engaging in conduct, that 

is: knowingly stabbing with a deadly weapon, that is: a knife, at 

and against the person of Lynn Ford, with the intent to kill Lynn 

Ford, resulting in serious bodily injury, that is: stab wounds of the 

torso, arms, and face, which conduct constituted a substantial 

step toward commission of said crime of Murder[.]

Appellant’s App. Vol. 4, p. 125 (emphases added). 

[7] Among the evidence the State presented was the testimony of the victim, Ford, 

from the first jury trial, as Ford had died from natural causes in February 2002. 

 

1 The court further held that there was sufficient evidence to support a conviction for attempted murder and 

that retrial was therefore permissible. Id. at 364. The court also addressed the other two issues Edwards 

presented, which were likely to resurface on retrial. Specifically, the court held that the trial court should 

have given the instruction on the lesser-included offense of battery and that the trial court did not err in 

admitting Edwards’s statement to the police. Id. at 365–66.
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The charging information was, as is common practice, included with the jury 

instructions. Importantly, though, the trial court gave the jury an attempted 

murder instruction which made no use of the improper “knowingly” mens rea: 

A person attempts to commit murder, a Class A felony, when, 

acting with the conscious purpose of killing another person, he engages 

in conduct that constitutes a substantial step toward the 

commission of the crime of Murder. 

The crime of Murder is defined by statute as follows: 

A person who intentionally kills another human being commits 

Murder. 

The elements of this offense are that the Defendant must: 

1. intentionally

2. engage in conduct that constituted a substantial step 

toward the commission of 

3. intentionally killing another human being. 

Intent to kill may be inferred from the use of a deadly weapon in 

a manner reasonably calculated to cause death. 

Edwards II Appendix Vol. 1, p. 190 (emphases added).2 The jury convicted 

Edwards of attempted murder, and Edwards again appealed. 

[8] In Edwards’s second direct appeal, he argued that the trial court erred by 

imposing an enhanced sentence based upon facts not found by the jury, in 

violation of the Sixth Amendment as interpreted in the then-recent case of 

Blakely v. Washington, 542 U.S. 296 (2004), and that his sentence was 

 

2 The instructions were typed with all capital letters. We have adjusted the capitalization to facilitate reading 

of the instruction. 
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inappropriate. Finding the first issue to be dispositive, we reversed Edwards’s 

sentence and remanded with instructions that “the trial court . . . either convene 

a jury for sentencing purposes or impose the presumptive sentence of thirty 

years for Edwards’s attempted murder conviction.” Edwards v. State, 822 N.E.2d 

1106, 1110 (Ind. Ct. App. 2005) (“Edwards II”). 

C. Edwards’s Third Sentencing and Appeal

[9] On remand, the State filed a notice of the aggravating factors it intended to 

prove at the resentencing hearing. The trial court subsequently empaneled a 

jury and conducted a two-day sentencing hearing at which the State proved 

certain aggravating factors to the jury. Included in the evidence presented to the 

jury was Ford’s testimony from the first jury trial. The jury ultimately found 

that the State had proved nine aggravating factors beyond a reasonable doubt. 

Based on these factors, the trial court again sentenced Edwards to forty years 

imprisonment, and Edwards appealed yet again.

[10] In his third direct appeal, Edwards argued that the trial court abused its 

discretion in admitting Ford’s prior testimony at the resentencing hearing, and 

that his sentence is inappropriate under Appellate Rule 7(B). We held that 

Ford’s statement was admissible because the Indiana Rules of Evidence did not 

apply at sentencing hearings and that Edwards’s sentence was not 

inappropriate. Edwards v. State, No. 49A04-0702-CR-75, 2007 WL 3053299 at 

*2–3 (Ind. Ct. App. Oct. 22, 2007), trans. denied (“Edwards III”). 
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D. Edwards’s Petition for Post-Conviction Relief and the Instant Appeal

[11] On October 19, 2010, Edwards filed a pro se petition for post-conviction relief, 

which he amended on June 10, 2011.3 On February 1, 2016, Edwards, now 

represented by counsel, filed another amended petition for post-conviction

relief. Edwards subsequently filed a motion for summary disposition, which the 

post-conviction court denied. The post-conviction court held evidentiary 

hearings on Edwards’s petition on March 17, October 13, and October 20, 

2016. The post-conviction court entered findings of fact and conclusions of law 

denying Edwards’s petition on April 27, 2017. Edwards then filed a motion to 

correct error on May 30, 2017, which the post-conviction court denied on June 

26, 2017. Edwards now appeals. 

Post-Conviction Standard of Review

[12] Our standard of review of claims that a post-conviction court erred in denying

relief is well settled: 

Post-conviction proceedings are not “super appeals” through 

which convicted persons can raise issues they failed to raise at 

trial or on direct appeal. Rather, post-conviction proceedings 

afford petitioners a limited opportunity to raise issues that were 

unavailable or unknown at trial and on direct appeal. A postconviction petitioner bears the burden of establishing grounds for 

relief by a preponderance of the evidence. On appeal from the 

denial of post-conviction relief, the petitioner stands in the 

 

3 On December 19, 2014, Edwards filed a petition to modify his sentence. The trial court denied Edwards’s 

petition on January 6, 2015. Edwards appealed, and this court affirmed the trial court’s denial of Edwards’s 

petition to modify. Edwards v. State, No. 49A04-1502-CR-47, 2015 WL 4746231 (Ind. Ct. App. Aug. 11, 

2015), trans. denied.
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position of one appealing from a negative judgment. To prevail 

on appeal from the denial of post-conviction relief, the petitioner 

must show that the evidence as a whole leads unerringly and 

unmistakably to a conclusion opposite that reached by the postconviction court.

Where, as here, the post-conviction court makes findings of fact 

and conclusions of law in accordance with Indiana PostConviction Rule 1(6), we cannot affirm the judgment on any 

legal basis, but rather, must determine if the court’s findings are 

sufficient to support its judgment. Although we do not defer to 

the post-conviction court’s legal conclusions, we review the postconviction court’s factual findings under a clearly erroneous 

standard. Accordingly, we will not reweigh the evidence or judge 

the credibility of witnesses, and we will consider only the 

probative evidence and reasonable inferences flowing therefrom 

that support the post-conviction court’s decision.

Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted) 

trans. denied. With this deferential standard of review in mind, we review 

Edwards’s claims. 

I. The Law of the Case Doctrine

[13] Edwards first argues that the post-conviction court erred by failing to apply the 

law of the case doctrine to vacate his conviction. “The law of the case doctrine 

provides that an appellate court’s determination of a legal issue binds both the 

trial court and the appellate court in any subsequent appeal involving the same 

case and substantially the same facts.” Murphy v. Curtis, 930 N.E.2d 1228, 1234 

(Ind. Ct. App. 2010), trans. denied (citing Dutchmen Mfg., Inc. v. Reynolds, 891 

N.E.2d 1074, 1082 (Ind. Ct. App. 2008)). The law of the case doctrine is based 
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upon the sound policy that, once an issue is litigated and decided, that should 

be the end of the matter. Id. (citing Godby v. Whitehead, 837 N.E.2d 146, 152 

(Ind. Ct. App. 2005)). 

[14] Edwards argues that the law of the case doctrine required the court in his 2003 

retrial to avoid using the mens rea of “knowingly” in its instruction to the jury 

regarding the crime of attempted murder. As noted, in Edwards I, this court held 

that the attempted murder instruction given in the first trial was erroneous 

because it failed to inform the jury that the State was required to prove that 

Edwards specifically intended to kill Ford and improperly allowed the jury to 

convict if it found that he only knowingly attempted to kill Ford. Edwards I, 773 

N.E.2d at 363–64. Edwards argues that the trial court in his 2003 retrial failed 

to follow our instructions upon remand. As set forth above, however, the 

instruction given to the jury defining the crime of attempted murder did not

include the improper mens rea of “knowingly.” Edwards II Appendix Vol. 1, p. 

190. 

[15] Edwards’s argument is based on the fact that the jury instructions in the second 

trial included the charging information, which was not amended. As set forth 

above, the charging information included the improper mens rea of knowingly. 

See Appellant’s App. Vol. 4, p. 125. According to Edwards, this was improper, 

and he argues that the post-conviction court erred in denying relief on this basis. 

[16] We cannot ignore, however, that this argument is presented as a free-standing 

claim of error. Such free-standing claims are generally unavailable in post-
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conviction proceedings. See Timberlake v. State, 753 N.E.2d 591, 597–98 (Ind. 

2001) (noting that most free-standing claims of error are not available in postconviction proceedings because of the doctrines of waiver and res judicata). It is 

well settled that if an issue was known and available on direct appeal, but not 

raised on direct appeal, it is waived for purposes of post-conviction relief. See id. 

at 597. Here, there is no indication that Edwards’s argument was not known 

and available at the time of Edwards’s second direct appeal. Accordingly, it is 

waived,

4and Edwards’s claim of instructional error may only be presented on 

post-conviction under the guise of a claim of ineffective assistance of counsel. 

See id. 

II. Ineffective Assistance of Trial Counsel

[17] In addition to his free-standing claim of instructional error, Edwards also argues 

that the post-conviction court erred in concluding that he was not deprived of 

the effective assistance of trial counsel at his 2003 retrial. In Timberlake, our 

supreme court summarized the law regarding claims of ineffective assistance of 

trial counsel as follows: 

A defendant claiming a violation of the right to effective 

assistance of counsel must establish the two components set forth 

 

4 Nor can Edwards’s free-standing claim be salvaged by framing it as a claim of fundamental error. Our 

supreme court has explicitly held that claims of fundamental error are not cognizable in claims for postconviction relief. See Sanders v. State, 765 N.E.2d 591, 592 (Ind. 2002). “In post-conviction proceedings, 

complaints that something went awry at trial are generally cognizable only when they show deprivation of 

the right to effective counsel or issues demonstrably unavailable at the time of trial or direct appeal.” Id. Here, 

there is no indication that Edwards’s claim of instructional error was demonstrably unavailable at the time of 

his second direct appeal. 
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in Strickland v. Washington, 466 U.S. 668 (1984). First, the 

defendant must show that counsel’s performance was deficient. 

This requires a showing that counsel’s representation fell below 

an objective standard of reasonableness, and that the errors were 

so serious that they resulted in a denial of the right to counsel 

guaranteed the defendant by the Sixth Amendment. Second, the 

defendant must show that the deficient performance prejudiced 

the defense. To establish prejudice, a defendant must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability sufficient 

to undermine confidence in the outcome.

Counsel is afforded considerable discretion in choosing strategy 

and tactics, and we will accord those decisions deference. A 

strong presumption arises that counsel rendered adequate 

assistance and made all significant decisions in the exercise of 

reasonable professional judgment. The Strickland Court 

recognized that even the finest, most experienced criminal 

defense attorneys may not agree on the ideal strategy or the most 

effective way to represent a client. Isolated mistakes, poor 

strategy, inexperience, and instances of bad judgment do not 

necessarily render representation ineffective. The two prongs of 

the Strickland test are separate and independent inquiries. Thus, if 

it is easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice . . . that course should be followed. 

753 N.E.2d at 603 (citations and quotations omitted). Edwards claims that his 

trial counsel’s performance was deficient in several ways. 

A. Failure to Object to Mens Rea in Charging Information 

[18] First and foremost among Edwards’s claims of ineffective assistance is that his 

trial counsel failed to ensure that the charging information was amended and 

that the jury was instructed with regard to the proper mens rea for the crime of 
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attempted murder. Edwards argues that permitting the jury to see the unamended charging information, with its reference to a mens rea of “knowingly,”

was improper, and that his trial counsel was ineffective for failing to object to 

including the language from the charging information in the jury instructions. 

[19] The State argues that Edwards’s trial counsel did not perform deficiently. The 

State notes that Edwards’s trial counsel tendered jury instructions regarding 

attempted murder in an effort to ensure that the jury was properly informed of 

the requirement that the State prove the specific intent to kill. Specifically, she 

tendered proposed final instruction 3, which provided:

The crime of attempted murder is a “specific intent” crime. Thus,

in order to convict the defendant of attempted murder as charged 

in count one of the information you must find that at the time he 

stabbed at Lynn Ford he had the specific intent to kill him. 

Edwards II Appendix Vol. 1, p. 204. The trial court refused this instruction on 

grounds that the substance of this instruction was already covered in the 

preliminary instructions defining the crime of attempted murder. Edwards II Tr. 

p. 507. 

[20] Edwards’s trial counsel also tendered proposed final instruction 7, which 

provided: 

The crime of attempted murder is defined as follows: A person 

attempts to commit a murder when, acting with the conscious 

purpose of killing another person, he engages in conduct that 

constitutes a substantial step toward killing that person.
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To convict the Defendant of attempted murder, the State must 

prove each of the following elements beyond a reasonable doubt:

The Defendant Scottie R. Edwards

1. acting with specific intent to kill Lynn Ford

2. did stab with a deadly weapon, that is, a knife at and against 

the person of Lynn Ford

3. which was conduct constituting a substantial step toward the 

commission of the intended crime of killing Lynn Ford.

Edwards II Appendix Vol. 1, p. 208. This latter instruction is based on the thenexisting pattern jury instruction. See Indiana Pattern Jury Instruction 2.01(a) (2d 

ed. 1991 & Supp. 1999). 

[21] The trial court also refused this instruction because its substance was covered by 

the preliminary instruction defining the crime of attempted murder. Edwards’s 

trial counsel also made objections on the record regarding the trial court’s jury 

instructions to preserve any error for purposes of appeal. Edwards II Tr. p. 509. 

That the trial court did not give the instructions tendered by Edwards’s counsel 

does not mean that her performance was deficient. 

[22] We further disagree with Edwards that his trial counsel’s performance was 

deficient because she did not object to the inclusion of the language of the 

charging information in the instructions. It is well settled that jury instructions 

are to be considered as a whole, not in isolation. O’Connell v. State, 970 N.E.2d 

168, 172 (Ind. Ct. App. 2012) (citing Munford v. State, 923 N.E.2d 11, 14 (Ind. 

Ct. App. 2010)). Here, the jury instructions as a whole clearly informed the jury 

that, before it could convict Edwards of attempted murder, it was required to 
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find that he acted intentionally, not knowingly. Indeed, the trial court’s final 

instruction defining attempted murder referenced the intent to kill no fewer than 

four times.5

[23] The charging instruction was given to the jury, but only to explain the charge as 

brought by the State, not to inform the jury of the essential elements of the 

crime. In fact, attached to the charging information that was given to the jury 

was the following explanation: “Submitted to you for trial is a criminal charge 

brought by the State of Indiana against the Defendant, to which the Defendant 

has entered a plea of not guilty[.]” Edwards II Appendix Vol. 1, p. 185. 

[24] And even if we assume deficient performance, we are unable to say that 

Edwards has demonstrated any prejudice. The jury was instructed that, in order 

to convict Edwards of attempted murder, it was required to find that the State 

proved beyond a reasonable doubt that Edwards intentionally engaged in 

conduct that constituted a substantial step toward the intentional killing of 

another human being. There was no mention of the forbidden mens rea of 

“knowingly” in the trial court’s definitional instruction. 

 

5

In his reply brief, Edwards notes that our supreme court has held that “‘where the trial court lists the 

elements of attempted murder and includes an incorrect mens rea, this error cannot be cured by another 

instruction.’” Clark v. State, 668 N.E.2d 1206, 1210 (Ind. 1996) (quoting Beasley v. State, 643 N.E.2d 346, 348 

(Ind. 1994)). This rather strict rule seems to have been tempered over the years, as our supreme court has 

more recently explained that, even if an instruction failed to instruct the jury with regard to the requirement 

of a specific intent to kill, such error is considered harmless if the requirement of a specific intent to kill was 

set forth in other instructions. Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015). Moreover, here the incorrect mens 

rea was not included in the instruction listing the elements of attempted murder, which was the case in Clark. 

668 N.E.2d at 1210. 
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[25] We therefore conclude that the post-conviction court did not clearly err in 

concluding that Edwards’s trial counsel was not ineffective for failing to ensure 

that the jury was instructed with regard to the proper mens rea for attempted 

murder. 

B. Failure to Object to Reference to “Knife” in Charging Information

[26] Edwards also claims that his trial counsel’s performance was deficient because 

she failed to object to the inclusion of a reference to a “knife” in the charging 

information. As set forth above, the charging information alleged that Edwards 

stabbed Ford “with a deadly weapon, that is: a knife[.]” Appellant’s App. Vol. 

4, p. 125. Edwards notes that the police never located a weapon and that he 

testified that he stabbed Ford with a letter opener, not a knife, in self-defense.

6

He therefore claims that his trial counsel was ineffective for failing to the use of 

the word “knife” in the charging information. 

[27] Edwards, however, fails to explain precisely on what basis his trial counsel 

could have objected to the use of the word “knife” in the charging information. 

To be sure, no knife was recovered from the scene, and Edwards himself 

claimed that he stabbed Ford with a letter opener. But this does not foreclose 

the possibility that Edwards did use a knife. But more importantly, the fact that 

 

6 Edwards also mentions that Ford’s brother testified that he found several items at the scene of the crime 

that the police did not find despite a seemingly extensive search. These items included a photograph, a set of 

keys, a receipt, a CD, and a wallet. Edwards complains that the receipt was admitted into evidence without 

objection from his trial counsel. Edwards, however, fails to explain on what basis his trial counsel should 

have objected to this receipt, nor does he develop this argument any further. We will therefore not address it. 

See Chappell v. State, 966 N.E.2d 124, 133 (Ind. Ct. App. 2012) (noting that the failure to develop a cogent 

argument results in waiver of the issue on appeal) (citing Ind. Appellate Rule 46(A)(8)(a)), trans. denied. 
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the charging information alleged the use of a knife, but the evidence adduced at 

trial indicated the use of a letter opener, is immaterial. A letter opener is an 

implement that is of the same general character as a knife and can inflict the 

same type of wound. See Holsey v. State, 253 Ind. 437, 441, 254 N.E.2d 859, 861 

(1970) (holding that, even assuming that the weapon used to stab the victim was 

not a “knife” as alleged in the indictment, there was no material variance 

between the pleading and the proof because the weapon used was obviously of 

the same character and inflicted the same type of wound as a knife). 

C. Failure to Object to Statements by Prosecuting Attorney

[28] Edwards also asserts that his trial counsel was ineffective for failing to object to 

certain statements made by the prosecuting attorney during trial, statements he 

now claims amounted to prosecutorial misconduct.

[29] Edwards first argues that his trial counsel was ineffective because she failed to 

object when the prosecuting attorney referred to him as a “liar.” Edwards II Tr. 

p. 524. Contrary to Edwards’s claim, however, it is not improper for a 

prosecuting attorney to refer to a defendant, or any other witness, as being 

untruthful if such a statement is based on evidence presented at trial. Indeed, a 

prosecutor may comment on the credibility of witnesses so long as the 

assertions are based on reasons that arise from the evidence. Ryan v. State, 9 

N.E.3d 663, 671 (Ind. 2014); see also Cooper v. State, 854 N.E.2d 831, 835 (Ind. 

2006) (holding that no misconduct occurred where prosecutor’s statement that 

the defendant was “one of the finest liars that I’ve ever heard testify in the 

courtroom but . . . a liar nonetheless,” was based on other evidence that 
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suggested that the defendant was not telling the truth); Hobson v. State, 675 

N.E.2d 1090, 1096 (Ind. 1996) (holding that prosecutor did not commit 

misconduct when he stated in closing argument that the defendant was a liar 

because the evidence adduced at trial indicated that either the defendant was 

lying or that other witnesses were lying and prosecutor was simply inviting the 

jury to determine who was telling the truth). 

[30] In a somewhat related argument, Edwards also contends that his trial counsel 

should have objected to an alleged misstatement by the prosecuting attorney 

during closing argument. Specifically, he claims that the prosecuting attorney 

committed misconduct when he stated that the victim, Ford, had not yet met 

Edwards’s son, Kristopher, at the time of the attack. 

[31] At trial, Edwards’s theory of the defense was that he was concerned about his 

son spending time with Ford, who he claimed was a gay man interested in 

young boys. To rebut this, the State presented the testimony of Edwards’s exwife, Deirdre, who testified that she did not introduce her son to Ford until 

after the attack. Edwards II Tr. p. 501. Ford, however, testified that he had met 

Kristopher shortly before the attack. Id. at 220. 

[32] During the State’s closing argument, the prosecuting attorney stated: 

The Defendant’s son . . . had never even met Lynn Ford by the 

way according to testimony (inaudible). Had never even been 

introduced to Lynn Ford. This man had been following and 

stalking and he knew that his son had never met Lynn Ford.
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Id. at 526. Edwards argues that his trial counsel performed deficiently by not 

objecting to this statement. Edwards claims that this statement was false 

because Ford testified that he had met Kristopher shortly before the attack and 

because his ex-wife later executed an affidavit averring that Ford had met her 

son, “but they were not around each other all that much because Kristopher 

mostly stayed at [Edwards’s] house.” Post-Conviction Ex. Vol., Petitioner’s Ex. 

4. 

[33] Despite Edwards’s contention that this statement was false, we note that it was 

supported by the evidence adduced at trial, i.e., the testimony of Edwards’s exwife. The fact that her later affidavit might conflict7 with her testimony does not 

alter the fact that she testified at trial that her son had not met Ford until after 

the attack.8 Under these facts and circumstances, we cannot say that Edwards’s 

trial counsel’s failure to object to this statement constituted deficient 

performance. 

[34] Moreover, Edwards’s trial counsel presented evidence that countered the State’s 

claim, based on Deirdre’s rebuttal testimony, that Ford had not met Edwards’s 

 

7 Deirdre’s affidavit states that “Lynn Ford had met Kristopher[.]” Id. This does not necessarily conflict with 

her earlier testimony that she introduced her son to Ford in March 2001, after the stabbing. 

8 Edwards suggests that Deirdre’s trial testimony might have been perjury and notes that “a conviction based 

upon perjured testimony cannot stand.” Appellant’s Br. at 24 n.4 (citing Gordy v. State, 270 Ind. 379, 385 

N.E.2d 1145, 1146 (1979)). But the court in Gordy held that, if the State uses testimony known to be false, a 

conviction must be set aside if there is any reasonable likelihood that the false testimony could have affected 

the jury’s verdict. 270 Ind. at 385, 385 N.E.2d at 1146. Here, Edwards acknowledges that, when she testified 

at the second trial, Deirdre might not have known that Ford met her son. This does not establish perjury, 

much less that the State knew that her testimony was perjury. 
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son. The jury was presented with Ford’s testimony from the first trial in 2000.9

During his cross-examination, Ford admitted that he had “occasion to spend 

some time with [Kristopher]” before the stabbing. Edwards I Tr. p. 160; Edwards 

II Tr. p. 220. Ford also testified that the first time he met Kristopher was 

“shortly before this happened[.]” Edwards I Tr. p. 160. Edwards’s own 

testimony clearly indicated that he believed that Ford had met his son. See 

Edwards II Tr. at 439 (Edwards testifying that the reason he went to confront 

Ford was that he was concerned about Ford’s relationship with Kristopher). 

Moreover, Edwards’s trial counsel argued to the jury that Edwards confronted 

Ford because of his concern regarding Ford’s relationship with his son. Thus, 

the jury was well aware of Edwards’s theory of the case, and we cannot say that 

the failure of Edwards’s trial counsel to object to the State’s closing argument 

constituted ineffective assistance. 

III. Ineffective Assistance of Appellate Counsel

[35] Edwards also claims that the post-conviction court clearly erred in determining

that his appellate counsel was not ineffective. When reviewing claims of 

ineffective assistance of appellate counsel, we use the same standard applied to 

claims of ineffective assistance of trial counsel, i.e., the post-conviction 

petitioner must show that appellate counsel’s performance fell below an 

objective standard of reasonableness and that there is a reasonable probability 

that, but for the deficient performance of counsel, the result of the proceeding 

 

9 As noted Ford died prior to the 2003 retrial, and his testimony from the first trial was presented to the jury. 
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would have been different. Manzano, 12 N.E.3d at 329 (citing Harris v. State, 861 

N.E.2d 1182, 1186 (Ind. 2007)). To show that counsel was ineffective for failing 

to raise an issue on appeal, the defendant must overcome the strongest 

presumption of adequate assistance, and judicial scrutiny is highly deferential. 

Id. (citing Reed v. State, 856 N.E.2d 1189, 1195 (Ind. 2006)). 

[36] To evaluate the performance prong when counsel failed to raise issues upon 

appeal, we apply the following test: (1) whether the unraised issues are 

significant and obvious from the face of the record and (2) whether the unraised 

issues are “clearly stronger” than the raised issues. Id. If the analysis under this 

test demonstrates deficient performance, then we examine whether the issues 

that appellate counsel failed to raise, would have been clearly more likely to 

result in reversal or an order for a new trial. Id. at 329–30. 

[37] Ineffective assistance is very rarely found in cases where a defendant asserts that 

appellate counsel failed to raise an issue on direct appeal because the decision of 

what issues to raise is one of the most important strategic decisions to be made 

by appellate counsel. Id. at 330. Thus, our supreme court has warned that we 

“should be particularly sensitive to the need for separating the wheat from the 

chaff in appellate advocacy,” and we “should not find deficient performance 

when counsel’s choice of some issues over others was reasonable in light of the 

facts of the case and the precedent available to counsel when that choice was 

made.” Reed, 856 N.E.2d at 1196 (quoting Bieghler v. State, 690 N.E.2d 188, 194 

(Ind. 1997)). 
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[38] Here, Edwards argues that his counsel in his second appeal was ineffective for 

failing to present the issue of the incorrect mens rea being presented to the jury in 

the form of the un-amended charging information. Edwards acknowledges that 

the issue his appellate counsel did raise—a Sixth Amendment Blakely

violation—was successful and resulted in a new sentencing hearing. But he 

claims that the Spradlin error issue was clearly stronger and would have resulted 

in reversal of his conviction. We disagree. 

[39] We note again that, although the improper “knowingly” mens rea was 

mentioned in the charging information, the jury instruction defining attempted 

murder made no mention of the improper mens rea and correctly instructed the 

jury with regard to the elements of attempted murder. And the parties both 

discussed the requirement of the specific intent to kill Ford during their closing 

statements. Moreover, even if a jury instruction failed to instruct the jury with 

regard to the requirement of a specific intent to kill, such error is considered 

harmless if the requirement of a specific intent to kill was set forth in other 

instructions. Rosales v. State, 23 N.E.3d 8, 12 (Ind. 2015). 

[40] Thus, assuming it was error for the trial court to include the un-amended 

charging information, with its reference to the improper “knowingly” mens rea, 

any error was harmless because the jury was clearly instructed that, to convict 

Edwards of attempted murder, it was required to find that he acted with the 

intent to kill Ford. The decision of Edwards’s counsel in his second appeal not 

to present what would amount to as, at most, harmless error was not deficient. 

Accordingly, the post-conviction court properly concluded that Edwards was 
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not denied the effective assistance of appellate counsel in his second direct 

appeal. 

IV. Motion to Correct Error

[41] Lastly, Edwards claims that the post-conviction court abused its discretion 

when it denied his motion to correct error.10 Rulings on motions to correct error 

are typically reviewable under an abuse of discretion standard. State v. GonzalezVazquez, 984 N.E.2d 704, 706 (Ind. Ct. App. 2013), trans. denied. However, if 

the question presented is a pure question of law, we review the matter de novo. 

Id.

[42] Edwards contends that the post-conviction court should have granted his 

motion to correct error because, he claims, the court failed to include certain 

undisputed facts in its findings of fact and conclusions of law.11 It is well settled, 

 

10 Interspersed among Edwards’s argument regarding his motion to correct error is a discussion regarding 

Edwards’s motion seeking to have the presiding judge, not the magistrate, rule on his post-conviction

petition. This motion claimed that the magistrate could not be impartial because the magistrate’s wife was a 

supervisor in the Marion County Prosecutor’s office during the time the alleged incidences of prosecutorial 

misconduct took place. Appellant’s App. Vol. 2, p. 195. The post-conviction court denied this motion, and 

the magistrate presided at the post-conviction hearing and recommended denying Edwards’s petition for 

post-conviction relief. In his motion to correct error, Edwards noted that his motion to have the presiding 

judge rule contained an error; that is, the magistrate and the supervisor were actually divorced by the time 

Edwards had filed his motion to have the presiding judge rule. The motion to correct error noted, however, 

that the magistrate was married to the supervisor when the alleged incidences of prosecutorial misconduct 

took place in 2003. Edwards makes no separate, cogent argument that the post-conviction court’s denial of 

his motion to have the presiding judge rule was improper. Moreover, we note that the presiding judge did 

rule on his post-conviction petition. See Appellant’s App. Vol. 4, p. 86. Indeed, a magistrate is not authorized 

by statute to enter a final order on post-conviction petitions. See Ind. Code § 33-23-5-5 (delineating the 

powers of a judicial magistrate); Ind. Code § 33-23-5-9 (providing that, except for when a magistrate presides 

at a criminal trial or guilty plea hearing, a magistrate may not enter a final order but instead shall report 

findings to the presiding judge of the court). 

11 Specifically, Edwards claims that the post-conviction court failed to find: that the State did not amend the 

charging information; that Edwards’s trial counsel failed to object to the charging information or instructions; 
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however, that the failure to enter findings and conclusions is harmless where 

the claims presented in the post-conviction petition do not entitle the petitioner 

to relief. Gann v. State, 550 N.E.2d 803, 805 (Ind. Ct. App. 1990); see also

Stephenson v. State, 864 N.E.2d 1022, 1051 (Ind. 2007) (holding that postconviction court’s lack of specific findings and conclusions was harmless). 

Here, we have already determined that Edwards’s post-conviction claims to not 

entitle him to relief. Any error in the post-conviction court’s failure to make 

certain factual findings is therefore harmless.

Conclusion

[43] Edwards’s claim regarding the law of the case doctrine is presented as a freestanding claim of error. Because there is no indication that this issue was 

demonstrably unavailable to him on direct appeal, it is waived. The postconviction court did not clearly err in rejecting Edwards’s claims of ineffective 

assistance of trial counsel. His trial counsel did not perform deficiently in failing 

to object to the inclusion of the improper mens rea of “knowingly” in the 

charging information because the jury was properly informed of the required 

intent to kill in the instruction defining attempted murder; the failure to object 

to the reference to a “knife” in the charging information was not deficient 

because a knife is of sufficiently similar character to the letter opener that 

 

that his trial counsel failed to object to what he claims was prosecutorial misconduct; that the voir dire of the 

2003 trial was not transcribed for the appeal in Edwards II; that the trial court read the charging information 

to the jury during the retrial, which information included the “knowing” mens rea; that his appellate counsel 

in Edwards II did not confer with the counsel who represented him during retrial; and that his appellate 

counsel did not recall listening to the voir dire.
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Edwards admitted that he used to stab Ford; and his trial counsel was not 

constitutionally ineffective for failing to object to certain statements made 

during the State’s closing argument. Likewise, Edwards’s appellate counsel did 

not perform deficiently by failing to present a claim of Spradlin error on direct 

appeal, because the jury was properly informed of the requisite specific intent to 

kill in the jury instruction defining attempted murder. And lastly, the postconviction court did not err in denying Edwards’s motion to correct error. We 

therefore affirm the judgment of the post-conviction court. 

[44] Affirmed. 

Najam, J., and Barnes, J., concur.