¶1dissenting.
¶2I must respectfully dissent from the majority opinion on Issues VI and VII. These issues deal with the effective assistance of counsel at the guilty plea hearing and at the post-conviction relief hearing respectively. I feel that the issue of effective assistance of counsel at the guilty plea hearing cannot adequately be determined unless the cause is remanded for a new post-conviction relief hearing for the following reasons.
¶3A review of the record reveals that throughout the proceedings which culminated in his plea of guilt and the entry of judgment and sentencing thereon, petitioner had retained and was represented by a private attorney, hereinafter referred to as his "trial attorney." Following his sentencing and incarceration at the Pendleton Reformatory, petitioner engaged in legal research which led him to file, pro se, a petition for post-conviction relief. - Simultaneously, he communicated his dissatisfaction to his trial attorney and sent a copy of the post-conviction relief petition to the attorney.
¶4The record contains four letters which the trial attorney sent to petitioner subsequent to his sentencing and his decision to file the post-conviction relief motion. With one exception, the letters were handwritten; in only two instances was the message placed on letterhead. In the letters, the trial attorney expressed his willingness to cooperate with petitioner insofar as the petition was concerned, as well as his understanding of petitioner's need to include the allegation of ineffective representation in the petition.
¶5In the series of communications, the trial attorney justifiably expressed his concern over the possibility that petitioner, while alleging his representation was inadequate, might expect or desire the attorney to litigate that claim in conjunction with other allegations raised in the petition. Ultimately, while pledging his cooperation to petitioner, the trial attorney informed petitioner that neither he nor members of his law firm would be able to litigate the post-conviction relief petition due to the conflict *1301of interest such representation would involve. Petitioner then retained a second attorney, hereinafter referred to as "post-conviction counsel," to represent him throughout the post-conviction relief proceedings.
¶6At the post-conviction relief hearing, post-conviction counsel called petitioner to testify regarding the allegations contained in the petition. Petitioner testified that only five minutes prior to the time when his trial was scheduled to begin, his trial attorney came to lockup and informed him that the state had offered a plea bargain. He testified that his trial attorney advised him that it would be in his best interests to accept the offer. According to petitioner, his attorney then went upstairs to the courtroom. Petitioner testified that he did not see a copy of the plea agreement until thirty minutes later, when he was taken to the courtroom to accept the plea. There, according to petitioner, he acted on the assumption that his attorney knew what was best and answered affirmatively to the questions asked of him, thereby pleading guilty to the crime for which the fifteen-year sentence was ultimately imposed. He testified that due to the lack of consultation with his attorney, together with the effects of medication, he did not understand the plea bargain; he stated that immediately following the entry of the plea, which was taken under advisement by the court, he informed his attorney that he did not agree with it. His attorney did not respond, according to petitioner; he also testified that due to his incarceration, he was unaware whether the attorney had investigated and researched his case and considered alternative approaches to the charges facing him.
¶7In the course of petitioner's testimony, post-conviction counsel sought to introduce the letters which the trial attorney had sent to petitioner. The state objected to the admission of the documents on the basis of hearsay. Post-conviction counsel argued that the letters were admissible under the business records exception to the hearsay rule, and then engaged in the following colloquy with the court:
[MR. WILSON:] "One other thing, Judge. Now, of course, the very best evidence would be the person himself."
COURT: "Precisely."
MR. WILSON: "Mr. Avery."
COURT: "And he could have been subpoenaed although-"
MR. WILSON: "He could have been subpoenaed, Judge."
COURT: "Sure."
MR. WILSON: "But like I say, I think that there is some kinds of times when the second best evidence, and this is the second best because it's his signature, he recognizes it, he received it, I think that under the circumstances the cause, or very nature of these proceedings, that the best evidence would probably be not preferable because we're putting a man on the spot as a professional and I just don't think that's appropriate."
¶8The trial court ultimately sustained the state's objection to the admission of the letters; he ruled that the letters lacked the authentication necessary to qualify them for admission under the business records exception.
¶9In response-and with the court's permission-post-conviction counsel sent word to the trial attorney, whose office was located across the street from the courthouse, to come to the courtroom. When he arrived, he was asked to take the witness stand. There, post-conviction counsel asked him three questions; those questions pertained to his name, his occupation and whether it was his signature which appeared on the letters. The state then cross-examined the trial attorney regarding conversations between the attorney and petitioner which occurred subsequent to the entry of the plea and sentencing. The trial attorney was then excused from the witness stand.
¶10Petitioner maintains he was denied constitutionally adequate representation at the post-conviction hearing by virtue of his post-conviction counsel's decision not to question his trial attorney because it would put him "on the spot as a professional." We have found that under certain circumstances an ignorance of the applicable law *1302or a misperception of the state of the law can result in inadequate assistance of counsel. Smith v. State, (1979) Ind., 396 N.E.2d 898.
¶11Here, notwithstanding the trial attorney's presence at the hearing, post-conviction counsel did not question him about the substantive allegations of inadequate counsel at issue. Instead, post-conviction counsel asked the trial attorney only to authenticate the letters he had written to petitioner. This failure to question the trial attorney would not ipso facto establish that the post-conviction representation was inadequate. That omission might, in any particular instance, be the product of strategy or trial tactics.
¶12Post-conviction counsel, however, expressly stated that he did not consider it appropriate to question the trial attorney because it would put the "man on the spot as a professional." That approach defies the concepts of "independent professional judgment" and "zealous representation" embodied in Canons 5 and 7 of our Code of Professional Responsibility. Likewise, it flies in the face of a well-settled rule of post-conviction relief proceedings; in cases where no effort is made to produce the testimony of trial counsel, either orally or by affidavit, it is a rule of law that the court may presume that the attorney would not have corroborated the petitioner's testimony regarding the allegations of incompetency. Cobbs v. State, (1982) Ind., 484 N.E.2d 883; Lenoir v. State, (1977) 267 Ind. 212, 368 N.E.2d 1356; Vernor v. State, (1975) 166 Ind.App. 363, 336 N.E.2d 415.
¶13Post-conviction counsel's apparent lack of cognizance of this rule and his misplaced deference to the professional status of the trial attorney placed petitioner in a paradoxical position. Although the trial attorney was called as a witness, his only testimony regarding the substantive allegations of inadequate representation occurred during cross-examination by the state. Inasmuch as that evidence only tangentially concerned the merits of the factual allegations, the presumption that the trial attorney would have contravened petitioner's testimony remained in force.
¶14The majority suggests that the failure to question the trial attorney was one of strategy because of statements made by the attorney at the guilty plea hearing. The transcript of that hearing was admitted at the post-conviction hearing. There, the trial attorney had stated that he based his conclusion that petitioner should plead guilty on an investigation which included a deposition of a police officer, discussions with a chemist and petitioner, and an examination of hospital records. These statements, however, were neither made under oath nor were subject to cross-examination; the summary statement of the trial attorney only concerns one basis of petitioner's claim that the representation afforded him was inadequate. The lack of evidence solicited on petitioner's behalf was not the product of strategy or trial tactics; rather, it was the result of post-conviction counsel's expressly-stated misunderstanding of his responsibilities to petitioner. In the circumstances present here, I find that petitioner was denied the effective assistance of counsel at the post-conviction relief hearing. Smith v. State, supra.
¶15For all of these reasons, I believe the judgment of the trial court denying post-conviction relief should be reversed and the cause should be remanded for a new hearing where a proper determination of the issue of effective assistance of counsel at the guilty plea hearing can be made.