Court of Appeals of Indiana | Memorandum Decision 49A04-1602-PC-395 | December 15, 2017 Page 1 of 9

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.

APPELLANT, PRO SE

Jason Eichelberger

Carlisle, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jason Eichelberger,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Defendant. 

December 15, 2017

Court of Appeals Case No.

49A04-1602-PC-395

Appeal from the Marion Superior 

Court

The Honorable Kurt M. Eisgruber, 

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 postconviction 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 directappeal 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 postconviction 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.