dissenting.
I respectfully dissent. A central point in Phelps' ineffective assistance of appellate counsel claim, under which he is challenging the sufficiency of the evidence supporting his habitual offender determination, is whether the jury received the contents of exhibits twenty-seven, twenty-eight, and twenty-nine, which detailed Phelps' prior convictions. I agree with the majority that the record does not indicate whether the prosecutor read those exhibits to the jury per the trial court's request, but I do not agree that we may presume that the prosecutor did so. I conclude that where the record does not provide that the jury received an exhibit, we must presume that the jury did not. See Fout v. State, 619 N.E.2d 311, 313 (Ind.Ct.App.1998) (presuming that a jury did not see an unre-dacted version of an exhibit); Carey v. State, 180 Ind.App. 516, 518, 389 N.E.2d 357, 358 (Ind.Ct.App.1979) (presuming that an affidavit was never disclosed to the jury where the record did not show that it was). Consequently, in this ease the jury neither saw the exhibits not had their contents read to it. Therefore, it was presented with no evidence upon which to convict Phelps, and his habitual offender conviction is not supported by sufficient evidence. See Smith v. State, 547 N.E.2d 817, 823 (Ind.1989), on reh'g.
Nevertheless, the question remains whether Phelps' counsel on direct appeal rendered ineffective assistance by not raising this claim. The first step is to determine whether his counsel's performance "fell below an objective standard of reasonableness." See id. at 818 (quoting Williams v. State, 508 N.E.2d 1264, 1266 (Ind.1987)). Here, Phelps accuses his appellate counsel of omitting an issue. When assessing these types of ineffectiveness claims, reviewing courts should be particularly deferential to counsel's strategie decision to exelude certain issues in favor of others, unless such a *766decision was unquestionably unreasonable. Bieghler v. State, 690 N.E.2d 188, 194 (Ind.1997), reh'g denied, cert. denied, 525 U.S. 1021, 119 S.Ct. 550, 142 L.Ed.2d 457 (1998). Under this analysis, the reviewing court should be particularly sensitive to the need for separating the wheat from the chaff in appellate advocacy, and should not find deficient performance when counsel's choice of some issues over others was reasonable in light of the facts of the case and the precedent available to counsel when that choice was made. Id.
In this case, Phelps' counsel raised a number of issues on direct appeal, including: 1) whether the trial court abused its discretion when it denied Phelps' trial counsel's motion to withdraw; 2) whether Phelps was denied the effective assistance of trial counsel because his counsel allegedly drew out the only evidence of the severity of the victim's injury; 3) whether Phelps was denied the effective assistance of trial counsel because his counsel failed to object to the State's failure to provide Phelps with an arraignment or initial hearing on the habitual offender charge; and 4) whether the evidence was sufficient to support his conviction for battery. (Appellant's Brief, pp. 3-7) Phelps' challenge to the sufficiency of the evidence supporting his habitual offender adjudication is at least as strong an argument as all of the arguments raised by his counsel, and is stronger than many of those arguments. Furthermore, favorable precedents including Fout and Carey were available and on point to provide guidance and support such an argument. Under these cireumstances, I conclude that the failure of Phelps' counsel to raise this issue on direct appeal was unquestionably unreasonable. See Mason v. Hanks, 97 F.3d 887, 900 (7th Cir.1996).
Turning to the second step of Phelps's ineffective assistance claim, he must show adverse prejudice as a result of the deficient performance. Canaan v. State, 683 N.E.2d 227, 229 (Ind.1997), reh'g denied, cert. denied, 524 U.S. 906, 118 S.Ct. 2064, 141 LEd 2d 141 (1998). To make this showing, he must demonstrate that his counsel's performance was so prejudicial that it deprived him of a fair trial. Id.
Here, if Phelps' counsel had raised the sufficiency issue and this court had applied the reasoning I discuss above, there is a reasonable probability that the result of his appeal would have been different because we would have reversed the jury's habitual offender determination due to insufficient evidence. See Mason, 97 F.3d at 900. Consequently, Phelps was prejudiced by his appellate counsel's failure to raise this issue, and I would reverse the post-conviction court's judgment.3
. The State argues that our supreme court's holdings in Lingler and Weatherford require us to affirm the post-conviction court's judgment because Phelps has merely challenged the State's proof of each element of the offense rather than affirmatively arguing that he is not a habitual offender according to Ind.Code 35-50-2-8. Lingler v. State, 644 N.E.2d 131 (Ind.1994); Weatherford v. State, 619 N.E.2d 915 (Ind.1993), reh'g denied. However, the State is raising this argument for the first time on appeal, and we cannol consider it. See Whitfield v. State, 699 N.E.2d 666, 669 (Ind.