concurring. The trial court’s findings can be summed up simply: Petitioner’s defense counsel did not know her client could be present “in chambers” during voir dire and consequently did not make arrangements for him to be present in person. Ordinarily, counsel’s procedural choices are binding on defendant, and when counsel’s representation is “ineffective” because of ignorance of criminal procedure, the only relief post conviction is a claim for ineffective assistance of counsel. That claim was not made in this case, and we should affirm on that basis.
Had defense counsel made a “strategic choice” to absent her client from “in chambers” voir dire, In re Cardinal would have governed. 162 Vt. 418, 422, 649 A.2d 227, 230 (1994) (court may not second-guess attorney’s strategic choices). Here, the defendant-client was not out of touch with his defense counsel, and the trial court had no reason to know they were not effectively communicating.
Because the Court is not presented with a claim of ineffective assistance of counsel, an issue about the standard of review becomes apparent. No objection to defendant not being present “in chambers” was made at the criminal trial, and even if it had been, no issue on appeal was raised. Ordinarily, the issue addressed today would have been unpreserved and not subject to collateral attack.
The Court frames the standard of review in post-conviction relief as involving “fundamental” error resulting in “prejudice” against petitioner. A fundamental error goes to the fairness of the proceedings and results in “a complete miscar*630riage of justice” or disregards “the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428 (1962). The standard “fundamental error,” when the error is unpreserved at trial and could have been raised on appeal only as plain error, needs some explanation. Relief in terms of fundamental error must be based on a measure at least as great as “plain error.” Otherwise, defendants could bypass unpreserved issues on appeal and have an easier time of it under a more relaxed standard of review in post-conviction relief. The standard in this case, I submit, is that the error must be “plain,” that is, it should have been obvious to the court when made, and prejudicial, that is, so serious as to dictate the outcome of the trial.
I agree that the error complained of was not so serious as to be “fundamental,” largely because defendant was not particularly prejudiced by it. I would simply say, however, that the error complained of was not “obvious,” because the criminal trial court had no way of knowing that defendant’s absence was due to his lawyer’s ignorance of a procedure governing defendant’s presence “in chambers.”
Justice Dooley joins in this concurrence.