FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

DWIGHT DAVID LITTLE, PRO SE    STEVE CARTER
Michigan City, Indiana    Attorney General of Indiana

             NICOLE M. SCHUSTER
            Deputy Attorney General
            Indianapolis, Indiana

DWIGHT DAVID LITTLE,    )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 45A03-0405-PC-214
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

On October 3, the day after Little’s arrest for the murder of Holmes, the body of Little’s girlfriend, LaShawn Drearr, was found in a storage container in the basement of Little’s father’s house in Chicago, Illinois. She had been shot thirteen times. Chicago police interviewed Little’s father and learned that there was a criminal charge of attempted murder pending against Little in Chicago, stemming from an incident in which Little allegedly fired gunshots at Drearr’s residence. Little’s father informed police that Little was angry with Drearr because she had tipped police off that Little was carrying weapons, thus leading to his arrest, and because she had agreed to testify against Little. Detectives Wojcik and McMurray of the Chicago Police Department and Illinois Assistant State’s Attorney Maria Kuriakos learned that Little was being held in Indiana in the Lake County Jail in connection with the Holmes murder.

The next day, October 4, Kuriakos and Detectives Wojcik and McMurray traveled to the Lake County Jail to question Little about Drearr’s murder. . . . The three met with Little in an interview room at the jail. They identified themselves and informed Little that they were investigating Drearr’s death. Kuriakos advised Little of his Miranda rights and asked if he would be willing to talk with her concerning Drearr’s death. Little agreed. Little claimed that Holmes had shot Drearr to death in the home of Little’s father, while Little was there. Little then stated that Holmes left after disposing of the body. According to Wojcik,

[Little] stated he was at the house for awhile and he was in shock, and he just realized what [Holmes] had done, and at that point he went and he got his .38. He said he drove to Gary, Indiana, to [Holmes’s] residence, saw [Holmes] sitting in a chair, and his exact words were, “I walked up and I shot him.” He said after he shot him he got into a struggle with Terry, and that Terry held him at the residence until the police responded and arrested him.

Id. at 764-65.     
    On October 3, 1994, the State filed an information against Little, charging him with murder, a felony, Ind. Code § 35-42-1-1. On February 16, 1995, Little’s trial counsel, George C. Howard (Howard), who is licensed to practice law in Illinois but not in Indiana, filed an appearance. On April 5, 1995, the trial court ordered Howard to retain local counsel. On August 7, 1995, an attorney who is licensed to practice law in Indiana filed an appearance as local counsel. Howard was then suspended from the practice of law in Illinois from September 29, 1995, until February 28, 1996. On February 23, 1996, while he was suspended, Howard represented Little at a pre-trial hearing. On October 28, 1996, Little’s jury trial was held; Howard acted as Little’s trial counsel without local counsel being present. Immediately following the conclusion of the trial on November 4, 1996, the jury returned a verdict of guilty of murder. Little then appealed to this court, which affirmed his murder conviction in the above-cited opinion.     
    On November 26, 2002, Little filed a Petition for Post-Conviction Relief. On June 26, 2003, Little filed an Amended Petition for Post-Conviction Relief. On August 26, 2003, the post-conviction court held a hearing on Little’s amended petition. Thereafter, on March 11, 2004, the post-conviction court issued Findings of Fact and Conclusions of Law, denying Little’s request for relief.
    Little now appeals. Additional facts will be provided as necessary.

Id. (quoting United States v. Maria-Martinez, 143 F.3d 914, 917 (5th Cir. 1998)). Because the defendant in Cole had been represented by a non-local lawyer, rather than a non-lawyer, the Seventh Circuit declined to apply a per se ineffectiveness rule. See id. The Cole court wrote further,
As a general matter, only a few circumstances give rise to a per se violation of the Sixth Amendment right to counsel: no counsel present at all, or counsel not present at critical stages; complete failure to cross-examine or subject the opposing case to the adversarial process; an actual conflict of interest; and failure to file a requested appeal. The Supreme Court has described these as “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”

Id. (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)).
In the instant case, Little’s trial counsel had been admitted to practice law in Illinois and thus had “a credential from some forum demonstrating the specialized knowledge of a lawyer.” See id. Accordingly, we adopt the reasoning of the Seventh Circuit and find that Howard’s failure to comply with Rule 3 did not amount to a per se violation of Little’s Sixth Amendment right to counsel.
Little also claims, however, that his state constitutional right to effective assistance of counsel was violated by Howard’s lack of authority to practice law in Indiana. In Butler v. State, 668 N.E.2d 266, 267-68 (Ind. Ct. App. 1996), this court found that when a defendant is unaware at the time of trial that his trial counsel is neither licensed to practice law in Indiana nor admitted pro hac vice pursuant to Rule 3, this court will presume that the defendant suffered prejudice and hold as a matter of law that the conduct of counsel in question was ineffective assistance of counsel per se. “The absence of such license or authority [to practice law in Indiana] strips away the presumption of competence, and the defendant need not show prejudice.” Id. at 269. In Butler, however, the State did not dispute the defendant’s contention that he did not know that his trial counsel was not licensed to practice law in Indiana. Id. at 268 n.1. Thus, the Butler court stated:
A different case would be presented if there was evidence of collusion between the defendant and his counsel in which the defendant was aware of his counsel’s unauthorized status and yet proceeded to trial with that knowledge. Such action would be invited error and would, in effect, result in the waiver of a claim of ineffective assistance on those grounds.

Id. at 269 n.4.     

Little now contends that he did not know that Howard was not licensed to practice in Indiana. But at the post-conviction hearing, Howard testified that he informed Little the “first time [he] met him” that he was not licensed to practice in Indiana. (Transcript p. 51). As stated in the post-conviction court’s conclusions,
Standing alone, the court might not be so quick to believe Mr. Howard’s testimony over [Little’s]. However, the court’s orders indicate that the matter was discussed at numerous hearings. . . . and [Little] was present at those hearings. Therefore, the court does believe [Little] knew that his attorney was not licensed in Indiana.

(Appellant’s App. p. 69). Because the post-conviction court is the sole judge of the weight of the evidence and the credibility of witnesses, we concur with its assessment of these facts. See Fisher, 810 N.E.2d at 879.
We find that for Little to have proceeded to trial with knowledge of Howard’s unauthorized status was invited error; therefore, Little cannot now assert ineffective assistance of counsel on the ground that Howard was not authorized to practice law in Indiana. See Butler at 269 n.4. In sum, we find that Howard was not ineffective per se, and we also find that Little waived the claim that he received ineffective assistance of counsel in violation of article I, § 13, because Little proceeded to trial with knowledge that Howard had failed to comply with Rule 3 and was, therefore, unauthorized to practice law in Indiana. See footnote

Under Indiana law, “a person who knowingly or intentionally aids, induces, or causes another person to commit an offense commits that offense, even if the other person 1) has not been prosecuted for the offense; 2) has not been convicted of the offense; or 3) has been acquitted of the offense.”

To aid under the law is to knowingly aid, support, help or assist in the commission of a crime. Mere presence at the scene of the crime and knowledge that a crime is being committed are not sufficient to allow an inference of participation. It is being present at the time and place and knowingly doing some act to render aid to the actual perpetrator of the crime.

The presence of a person at the scene of the commission of a crime and companionship with another person engaged in the commission of the crime and a course of conduct before and after the offense are circumstances which may be considered in determining whether such person aided and abetted the commission of such crime.

(Record of Proceedings p. 97).
The jury instruction at issue in this case is essentially identical to the jury instruction analyzed in Walker. See Walker, 779 N.E.2d at 1159-60. In Walker, we reversed the defendant’s convictions after finding that the accomplice liability jury instruction created a mandatory presumption violating the defendant’s due process rights under the Fourteenth Amendment to the United States Constitution. See id. at 1160. Subsequent to the Walker decision, however, our supreme court specifically disapproved of that case’s holding in McCorker v. State, 797 N.E.2d 257, 264-65 (Ind. 2003), finding that the jury instruction at issue in Walker did not erroneously shift the burden of proof from the State on an essential element of the charged offense. See footnote Thus, the jury instruction of which Little complains was and still is a correct statement of the law, albeit one “inartfully worded in several respects.” McCorker, 797 N.E.2d at 259.
In addition to being overruled by McCorker, Walker was also decided approximately six years subsequent to the submission of the questioned instruction in Little’s case (and four years after his direct appeal was decided). It is well settled that an attorney cannot be found ineffective for failing to anticipate changes in the law. See Gann v. State, 550 N.E.2d 73, 75 (Ind. 1990) (“We cannot say that the original trial counsel was incompetent because he did not make an objection to an instruction which had not yet been held to be reversible error.”); McChristion v. State, 511 N.E.2d 297, 301-02 (Ind. 1987) (“An attorney is not required to prophesy future court rulings and act in accordance with them.”). The cases Little cites in his reply brief in support of his argument that there was other case law in existence establishing the problematic nature of this jury instruction are easily distinguishable insofar as they all deal with jury instructions giving rise to unconstitutional “mandatory presumptions.” See, e.g., Francis v. Franklin, 471 U.S. 307 (1985); Sandstrom v. Montana, 442 U.S. 510 (1979); Reid v. State, 529 N.E.2d 1309 (Ind. Ct. App. 1998).
To succeed on a claim that counsel was ineffective for failure to make an objection, the defendant must demonstrate that if such objection had been made, the trial court would have had no choice but to sustain it. Sanchez v. State, 675 N.E.2d 306 (Ind. 1996). Here, because the instruction as given was a correct statement of the law, an objection would not have been sustained. See id. at 311. Thus, Little does not demonstrate that trial counsel was ineffective in failing to object to the jury instruction on accomplice liability.

All clients being represented by the attorney in pending matters have been notified . . . of the nature and duration of the suspension, and all pending matters of clients requiring the attorney’s services during the period of suspension have been placed in the hands and care of an attorney admitted to practice before the Supreme Court of Indiana with the consent of the client.
. . .

Admiss.Disc.R.23(26).