FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

SUSAN K. CARPENTER    JEFFREY A. MODISETT
Public Defender of Indiana    Attorney General of Indiana

RICHARD DENNING     THOMAS D. PERKINS
Deputy Public Defender    Deputy Attorney General
Indianapolis, Indiana    Indianapolis, Indiana

WILLIAM WILCOXEN,              )
                                    )
    Appellant-Petitioner,           )
                                    )
        vs.                         )    No. 10A01-9804-PC-160
                                    )
STATE OF INDIANA,                   )
                                    )
    Appellee-Respondent.            )

                                

offense of voluntary manslaughter. He argues that the instruction was erroneous because it stated that sudden heat is an element of the offense.
    . . .
        3. This court concurs with the post conviction counsel that Instruction No. 12 is incorrect. Sudden heat is not an element of the offense of voluntary manslaughter. Palmer v. State (Palmer II), 573 N.E.2d 880 (Ind. 1991), Bane [v. State, 587 N.E.2d 97, 100 (Ind. 1992)]. Rather, sudden heat is a mitigating factor which reduces what would otherwise be murder to voluntary manslaughter. I.C. 35-42-1-3(b).
        4. Our supreme court did hold in Palmer II that failure to object to an instruction stating that sudden heat was an element of voluntary manslaughter constituted ineffective assistance of counsel sufficient to grant post conviction relief. Id. at 880. However, that instruction also incorrectly included lack of malice as an element. Such is not the case in this proceeding.
        5. The jury instruction in the Bane case “at one point suggested to the jury that sudden heat was an element of the crime on [sic] voluntary manslaughter. At another point, it cited the voluntary manslaughter statute and informed the jury that sudden heat was a mitigating factor.[”] Id. at 100-01. The Supreme Court held that the instruction did not constitute fundamental error as it did not deprive Bane of his due process rights. Id. at 101. The Court also stated that an error in the wording of a voluntary manslaughter instruction may be cured by other instructions given simultaneously to the jury. Id. at 101.
    . . .
        9. While the jury was not expressly instructed using the words “mitigator” or “mitigating factor”, it was not misled. Instruction No. 5 specified that voluntary manslaughter was a lesser included offense. Instruction No. 10 discusses what is necessary “in order for a killing to be reduced to voluntary manslaughter”. Instruction No. 11 discussing provocation and sudden heat states, “[A]ll that is required to reduce a homicide from murder to voluntary manslaughter is sufficient provocation to excite in the mind of the Defendant such emotions as anger, rage, sudden resentment, or terror as may be sufficient to obscure the reason of an ordinary person, and to prevent deliberation and premeditation, to exclude malice, and to render the Defendant incapable of cool reflection.” Nor was the jury confused as to the burden of proof. By Instruction No. 1, the jury was advised as to the presumption of innocence, and that he was “not required to present any evidence to prove his innocence or to explain anything.” They were again so advised by the Court's Instruction No. 7. Any error in the wording of Instruction No. 12 was cured by the foregoing and other instructions given simultaneously to the jury. Thus, while Instruction No. 12 was technically erroneous, the instruction does not constitute fundamental error, and

[Wilcoxen's] claims that his trial counsel provided ineffective assistance of counsel are without merit.

P-C.R. R. 74-77. Wilcoxen now appeals the denial of his petition for post-conviction relief.

is generally limited to instances of deprivation of Sixth Amendment right to counsel or to an issue demonstrably unavailable to the petitioner in the prior proceedings. Id. In the instant case, where the error in the voluntary manslaughter instruction was not brought as an issue on direct appeal, we will only reverse based upon the instruction if we find it to be fundamental error.
    The petitioner must establish his grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5). On appeal from the denial of a petition for post- conviction relief, we neither reweigh the evidence nor judge the credibility of the witnesses. Montano, 649 N.E.2d at 1056. To prevail on appeal from the denial of a petition for post- conviction relief, the petitioner must show that the evidence is without conflict and leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court. Spranger v. State, 650 N.E.2d 1117, 1119 (Ind. 1995). It is only where the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion, that the decision will be disturbed as being contrary to law. Id. at 1120.

passion, caused by sufficient provocation upon the part of the one killed, and the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool, and there must have been a causal connection between the provocation, the passion and the fatal act.
        The law does not recognize the use of words alone as sufficient provocation to reduce the offense from murder to manslaughter, the other essential elements of murder being present.
    . . .
        If death, though knowingly and intentionally caused, appears to have been inflicted immediately after provocation deemed by the law adequate to excite sudden and angry passions in the mind of persons ordinarily constituted, and before sufficient time elapses for deliberation and for the passions to cool, then this fact reduces the offense from murder to manslaughter. The killing is still unlawful, however, because a person is bound to curb his passions, and the offense, if all other essential elements exist, is voluntary manslaughter.

App. 1996), trans. denied (standard of review for claim of ineffective assistance of appellate counsel is identical to the standard for trial counsel). First, we require the petitioner to show that, in light of all the circumstances, the identified acts or omissions of counsel were outside the wide range of professionally competent assistance. This showing is made by demonstrating that counsel's performance was unreasonable under prevailing professional norms. Roche v. State, 690 N.E.2d 1115, 1120 (Ind. 1997). Second, we require the petitioner to show adverse prejudice as a result of the deficient performance, that is, that but for counsel's deficient performance, the result of the proceedings would have been different. Taylor v. State, 659 N.E.2d 1054, 1061 (Ind. Ct. App. 1995), trans. denied. We will find prejudice when the conviction or sentence has resulted from a breakdown of the adversarial process that rendered the result unjust or unreliable. Id. It is not necessary to determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Toan v. State, 691 N.E.2d 477, 479 (Ind. Ct. App. 1998).
    There is a strong presumption that counsel rendered effective assistance and made all significant decisions in the exercise of reasonable professional judgment, and the burden falls on the petitioner to overcome that presumption. Lee v. State, 694 N.E.2d 719, 720 (Ind. 1998), cert. denied, 119 S.Ct. 554 (1998). A petitioner must show more than isolated poor strategy, bad tactics, a mistake, carelessness or inexperience; the defense as a whole must be inadequate. Davis v. State, 675 N.E.2d 1097, 1100 (Ind. 1996).

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