*146Dissenting Opinion
DeBruler, J.The trial court here, possibly frustrated by a series of post-conviction petitions from a defendant who received what appears to be a very fair sentence, made an immediate order denying the defendant’s third petition for post-conviction relief, on the grounds of former adjudication. It was certainly not this Court’s intention at the time this rule was adopted to place the burden upon the trial judge to (1) give a complete construction to pro se petitions upon their filing, and then, (2) formulate a defense to that petition, and then (3) submit the case to himself for a final adjudication. Such a burden on the trial judge would be intolerable and wrong. We have provided the necessary legal machinery to rationally litigate these post-conviction cases and to relieve the trial judge of the responsibility of assuming the role of an advocate.
We have provided the structure to be invoked by the trial court upon receipt of a petition for post-conviction relief. If the petition is denominated a petition for writ of habeas corpus or common law writ, the trial court should make a preliminary decision as to whether it should be treated as a petition under the Court’s Post-Conviction Remedies Rule, and, if it is to be so treated, then that should be ordered and the case should be transferred to the court of conviction. Ind. R. P.C. 1, § 1(c). Once in the court of proper jurisdiction, the case is to be treated as an adversary proceeding. The Public Defender, in the event of indigency of the petitioner, will be counsel for petitioner, and the Prosecuting Attorney will defend against the petition. Ind. R. P.C. 1, § 9. The Prosecuting Attorney in this case should have provided the trial court with the proper defenses to the petition, be those defenses waiver, prior adjudication, or on the merits. Langley v. State, (1971) 256 Ind. 199, 267 N.E.2d 538. It was not intended that the trial court assume the burdens which it did in this case. The trial judge should require that the *147petitioner, Public Defender, and Prosecuting Attorney fulfill their obligations in post-conviction proceedings, in order that the case reach the trial court for final consideration with fully developed and supported legal positions.
It is of course recognized in § 4 (e) of Ind. R. P.C. 1, that a trial judge might immediately deny a petition for post-conviction relief without invoking the full adversary system. However, such cases are extremely rare. Where, as here, former adjudication or waiver is the probable defense, such a denial would not be appropriate, since the determination of such defenses would rest upon matter not likely to be in the petition for relief and would require a comparison between the issues raised in the petition and issues formerly adjudicated in prior proceedings. Presenting the defense of prior adjudication or waiver is a job for the Prosecuting Attorney.
Turning next to the merits of this appeal, it is to be noted first that the defendant, in his third post-conviction petition, which was denominated a petition for habeas corpus, raises a legal argument, namely, that the statute defining second degree murder, Ind. Code § 35-1-54-1, being Burns § 10-3404, is “patently unconstitutional, in that its multiple penalty provisions violate the equal protection clause of the Fourteenth Amendment to the United States Constitution.” The petition itself recognizes that this is a new legal argument, not previously raised. In his pro se petition, the defendant states that the issues presented in his petition were not previously known to him. In the memorandum attached to the petition, he argues that the authority granted by the trial court to choose between sentences of fifteen to twenty-five years and life imprsionment, for the same offense, is too arbitrary and too broad to be rationally supported by any need to make the penalty fit the individual rather than the crime.
The majority concludes that the trial court is under no duty to consider the merits of a third post-conviction petition, since the arguments in it could have been raised in a former post-conviction proceeding. Where, as here, the error raised *148is constitutional in dimension, this is tantamount to a holding by this Court that the defendant knowingly, voluntarily and intelligently waived the right to raise this equal protection issue during prior post-conviction proceedings. The waiver issue has not been pleaded or litigated. The burden is on the prosecution to raise and prove the defense of waiver or prior adjudication. We should not presume a waiver on the state of this record.
This third petition was precipitated by a denial of defendant’s federal habeas corpus petition, based upon his failure to exhaust State post-conviction remedies. We should remand to the trial court for further proceedings to encompass the issue of waiver and, in the event the State fails to show waiver or prior adjudication, the merits of petitioner’s claim. Adherence to the procedures of the rule will lighten the burden of the trial judge and, at the same time, serve to leave the door open for that occasional meritorius post-conviction claim.
Note. — Reported at 325 N.E.2d 180.