Smith v. State

I separately concur in the majority opinion only because I believe it is indeed clear "when, if at all, fundamental error is available in a post-conviction proceeding." At 344. Our supreme court's decision in Propes v. State (1990), Ind., 550 N.E.2d 755, unequivocally states that "fundamental error is cognizable in a petition for post-conviction relief even absent preliminary proof of ineffective assistance of counsel." 550 N.E.2d at 759. This statement can only mean that a free-standing claim of fundamental error is reviewable in a post-conviction relief proceeding. Then, the supreme court…