Concurring Opinion
Staton, P.J.I concur in the majority opinion’s treatment of the issue on sufficiency of the evidence. For the reasons stated below, I concur in result only on the issue of inadmissible evidence. The precise question raised by Bennett on appeal is whether he was denied the effective representation of counsel as guaranteed by the Sixth Amendment to the United States Constitution. In support of this argument, he contends that he was denied the effective assistance of counsel because his trial counsel failed to challenge the admission of certain evidence on the ground that the evidence was the fruit of an arrest made without probable cause. The issue concerning incompetent counsel is raised for the first time in appellant Bennett’s brief to this Court.1
First of all, I would point out that the well established rule of appellate review, that failure to object at trial on the grounds argued on appeal constitutes a waiver of the issue,2 is not relevant to this appeal. The issue of inadmissible evidence is only raised in conjunction with the issue of incompetent counsel. Consideration of whether the evidence was so blatantly inadmissible as to demonstrate incompetent representation by counsel is the real issue on appeal.
Secondly, the Supreme Court of Indiana has clearly established that the issue of competency of trial counsel may be raised for the first time on appeal as fundamental error. Wilson v. State (1943), 222 Ind. 63, 51 N.E.2d 848. In Wilson, supra, 222 Ind. at 78, 51 N.E.2d at 854, the Supreme Court of Indiana stated the following concerning appellant’s *685argument that he was deprived fundamental constitutional rights because of inadequate representation by trial counsel:
“. . . The easy course would have been to examine the motion for new trial and, having found that the errors relied upon are not mentioned therein, to have affirmed the judgment. For such a decision there are many precedents. But in a case involving an appellant’s life or liberty we may not ignore prejudicial errors affecting his constitutional rights when, as here, they are clearly and adequately presented in appellant’s brief with supporting bill of exceptions. The procedural rules that would prevent their consideration must give way to the fundamental principles of due process. . . .”
The majority opinion implies that the law in Indiana is not settled on the question of whether an assertion of incompetent counsel may be raised for the first time on appeal as fundamental error. I disagree. However, I do agree with the majority opinion’s conclusion that Bennett’s trial representation was not inadequate. Therefore, I concur in result.
Note. — Reported at 845 N.E.2d 254.
. Bennett’s trial counsel, who prepared the motion to correct errors, is not the same counsel who prepared the brief on appeal.
. See Jones v. State (1973), 260 Ind. 463, 296 N.E.2d 407: Garner v. State (1975), 163 Ind. App. 573, 325 N.E.2d 511.