dissent">SULLIVAN, Justice,

dissenting.

I respectfully dissent. The effect of the majority's opinion is to relegate Hernan-dezr's claim to post-conviction proceedings. I do not think that that is the right result.

The majority begins with an excellent analysis with which I largely agree of whether the receipt of the note constituted a "critical stage" of the proceeding requiring the assistance of counsel. Relying on Dullen v. State, 721 N.E.2d 241, 242 (Ind.1999), the majority concludes that "the note, if received, may have been a critical stage for Sixth Amendment purposes." However, in the end the majority holds that the receipt of the note was not a critical stage because Hernandez does not identify any curative measures that he would have taken had he been informed of the note nor does he demonstrate any reasonable possibility that a mistrial or any other action would have resulted.

I think this analysis is incorrect. It essentially requires Hernandez to demonstrate prejudice in order to establish the existence of a critical stage. But unlike a claim of ineffective assistance of counsel in which establishing prejudice is required to demonstrate Sixth Amendment error, prejudice is not required to be shown to establish the existence of a critical stage. Rather, the fact that a defendant has been deprived of counsel at a critical stage constitutes constitutional error and the burden then shifts to the State to prove, if it can, that the error was harmless beyond a reasonable doubt. Rushen v. Spain, 464 U.S. 114, 123, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). The practical consequence of this is that, if receipt of the note was a critical stage, it was the burden of the *854State, not Hernandez, to demonstrate on appeal harmlessness beyond a reasonable doubt, e.g., that a mistrial would not have been granted or other curative measures could have been taken.

Given the content of the note itself and the history of this prosecution (two prior hung juries), I think it clearly was a critical stage. And the State makes no attempt to demonstrate harmlessness.

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