________________________________________________________________________

Attorneys for Appellant 				Attorneys for Appellee

Susan K. Carpenter						Jeffrey A. Modisett

Public Defender of Indiana				Attorney General of Indiana

William D. Polansky					Randi E. Froug

Deputy Public Defender					Deputy Attorney General

Indianapolis, Indiana					Indianapolis, Indiana

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	IN THE INDIANA SUPREME COURT

STAFFORD, Keith,				)	Supreme Court No.

						)	45S04-9906_____-PC-327_____

		Appellant-Petitioner,	)

						)	Court of Appeals No.

STATE of Indiana,				)	45A04-9804-PC-191

						)

		Appellee-Respondent.	)	

________________________________________________________________________

APPEAL FROM THE LAKE SUPERIOR COURT

CRIMINAL DIVISION

The Honorable T. Edward Page, Magistrate

Cause No. 45G02-9209-CF-236

________________________________________________________________________

	On Petition To Transfer

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	JuneJune 7, 1999[INSERT HAND-DOWN DATE]

Per Curiam

	After a jury trial, petitioner was convicted of attempted criminal confinement and

was sentenced to a term of twelve years.  The Court of Appeals affirmed that judgment in

an unpublished memorandum decision.  Stafford v. State, No. 45A03-9308-CR-252 (Ind. Ct. App. Dec 15, 1993).  Petitioner then sought post-conviction relief, the denial of which

forms the subject matter of this appeal.

	The Court of Appeals affirmed the denial of petitioner’s request for post-

conviction relief in an unpublished memorandum decision issued December 23, 1998. 

Rehearing was denied on March 26, 1999.  This matter comes before the Court pursuant

to a petition to transfer filed in accordance with Appellate Rule 11(B).  

	At trial, petitioner was found to have threatened a female victim with a handgun in

an attempt to force her into an automobile he was driving.  In the post-conviction

proceeding, petitioner sought to prove his trial counsel was ineffective in defending him

against this charge.  Petitioner’s trial counsel called no witnesses for the defense. 

Petitioner was convicted on the strength of the eye-witness identification by the victim,

despite alleged discrepancies in the pre-trial descriptions she had given of her assailant.  

	In the post-conviction proceeding, petitioner put on evidence regarding his

physical appearance at the time of the offense, evidence of his lack of a license to operate

a car, and evidence that he in fact did not know how to operate a car.  Petitioner also

elicited the testimony of an expert regarding the reliability of eye-witness testimony.  

Petitioner’s post-conviction claims were that his trial counsel was ineffective for not putting on this evidence in the original trial, and that his separate appellate counsel was

ineffective in failing to raise the issue of trial counsel’s alleged ineffectiveness.

	The post-conviction court concluded that petitioner’s appellate counsel was not

ineffective.  However, the post-conviction court found the issue of the effectiveness of

petitioner’s trial counsel to be waived because the issue was not presented in the initial appeal of the conviction.  This aspect of the ineffective assistance of counsel claim was

therefore not addressed on the merits by the post-conviction court.  

	Subsequent to the entry of judgment by the post-conviction court, we clarified this

area of law in Woods v. State, 701 N.E.2d 1208 (Ind. 1998) (claims of ineffective assistance of counsel can be raised on direct appeal or during a post-conviction

proceedingat any time).  The Court of Appeals noted the import of Woods, and correctly determined that petitioner’s claim of ineffective assistance of counsel had not been waived. 

	However, instead of remanding to the post-conviction court for reconsideration in

light of the finding that the ineffective assistance claim had not been waived, the Court of

Appeals reviewed the actual merits of the claim, at least in part.  The Court of Appeals

disagreed with petitioner’s contention that his trial counsel was ineffective in failing to

present expert testimony on the subject of eye-witness identification.  Pursuant to Appellate Rule 11(B)(3), we summarily affirm that part of the decision of the Court of

Appeals.

	However, the Court of Appeals did not squarely address the merits of petitioner’s

claim of ineffective assistance of counsel based upon the failure to present evidence

concerning petitioner’s appearance at the time of the offense, his asserted inability to

drive, and his lack of a driver’s license.  Thus, because the post-conviction court found

the issue waived, this claim has not been reviewed by any court.

	Based on the totality of the circumstances of this case -- the nature of the single-

witness identification testimony and the failure of any court to review the merits of a

potentially significant aspect of the ineffective assistance claim -- the intervention of this

Court is warranted.  We grant transfer and remand to the post-conviction court for a

review on the merits of petitioner’s ineffective assistance of counsel claim.

All Justices concur.