concurring in part and dissenting in part.
While I concur with the majority’s thorough treatment of the application of Campbell and the alibi issue in part I, I strongly dissent to the determination that the trial court committed fundamental error by failing to sua sponte give an instruction defining “prior unrelated felonies.”
Initially, it must be recalled that this was a proceeding for post-conviction relief. Thus, the burden was upon Baxter to establish his entitlement to relief by a preponderance of the evidence. In Weatherford v. State, 619 N.E.2d 915, 918 (Ind.1993) (DeBruler, J. dissenting), our supreme court held that rather than merely challenging the state’s proof, this requires the post-conviction relief applicant to demonstrate that he was not an habitual offender under the laws of this state.
I believe that this line of authority dovetails with the emerging view of our supreme court that the doctrine of fundamental error includes a fact sensitive component that examines whether the defendant at bar was actually denied the fundamental fairness which the doctrine seeks to protect. See, e.g., Goudy v. State, 689 N.E.2d 686 (Ind.1997); Swallows v. State, 674 N.E.2d 1317 (Ind.1996) (holding no fundamental error arose despite trial court’s failure to instruct on the specific intent element of attempted murder where the intent element was not the subject of a serious factual dispute at trial.)4
Baxter has offered no evidence that the felonies relied upon by the state were not in the sequence required by the habitual offender statute. Furthermore, he tendered no instruction defining prior unrelated felonies at his trial and did not raise the failure to instruct on this issue in his direct appeal. He couches his present argument as ineffective assistance of counsel, but the simple fact is that we do not know from the record why counsel did not request the instruction. Counsel is presumed competent, and it is wholly consistent with the record that counsel knew that, in fact, the felonies complied with the statutory mandate and the proof thereof was available at trial. As a tactical matter he may have simply chosen not to make an issue of it. He may even have done so in the hope that the jury might become confused and award an acquittal on the habitual offender status. The post-conviction record fails to establish that counsel’s conduct necessarily fell below an objective standard of reasonableness.
Despite all the foregoing, the majority determines that it was fundamental error for the trial judge not to give the instruction sua sponte. Relying upon Lyons v. State, 600 N.E.2d 560 (Ind.Ct.App.1992) it asserts that “[fjailure to instruct a jury on ‘prior unrelated felony’ is fundamental error unless the evidence shows the proper sequence of convictions-” Lyons held no such thing. It merely held that where the evidence estab*1261lished that the felonies occurred in the proper sequence, no fundamental error occurred. Id. at 567. It does not follow that absent such evidence fundamental error must be found. Indeed, in Weatherford, supra, the appellant’s claim was rejected although the proof admittedly failed to establish the date of commission of one of the prior felonies.
I believe Weatherford provides the overriding principle for post-conviction relief review of habitual offender determinations. The defendant is required to demonstrate that his various convictions did not occur in the required order. Otherwise, he has failed to establish the fact sensitive element necessary to a determination of fundamental unfairness.
Accordingly, I would affirm the trial court.
. For prior decisions finding fundamental error for this instructional failure, see Greer v. State, 643 N.E.2d 324 (Ind.1994) and cases cited therein.