Dissenting Opinion
I.
DeBruler, J.One will not find in the Bill of Rights any recognition that the “interests of judicial economy” permit this or any other court to ignore the fundamental rights of litigants. Appellant has the constitutional right, when appearing before this Court, to be heard by counsel. Article 1, § 13, Indiana Constitution. The Sixth Amendment to the United States Constitution guarantees the same right to this appellant. This Court has subjected a claim of insufficiency of the evidence and a claim of ineffective appellate representation, erected by it on behalf of appellant, to litigation and judicial decision, without the appellant having been afforded an opportunity to present legal briefs on the issues or to be heard in any manner. To entertain the merits of a claim in this manner, is a palpable violation of due process of law.
II.
Following the affirmance of his conviction on direct appeal by this Court, the appellant filed this, his first post-conviction petition. The trial court dismissed the petition upon motion *627of the State without a hearing. In its motion to dismiss, the State contended that the sufficiency issue had been fully and finally adjudicated at the trial resulting in conviction and that that judgment was affirmed on direct appeal, and therefore the petition did not state a claim upon which relief could be granted. PC. 1, §4(e) and (f).1 The motion to correct errors filed after the jury trial, as well as the opinion of this Court on the direct appeal, were in the record before the trial judge at the post-conviction proceeding which resulted in this dismissal. The documents disclose without question that the motion to correct errors contained an allegation that the evidence was insufficient to support the verdict of the jury, and that the merits of this issue were not considered by this Court in the original appeal. The State concedes this in its brief. Upon specific consideration of these documents, the trial court tersely dismissed the petition.
Appellant’s allegation that the evidence adduced at the trial was insufficient to warrant the jury’s verdict was not considered by this Court in appellant’s direct appeal for the reason that no argument in support of this allegation in the motion to correct errors was included in appellant’s brief. AP. Rule 8.3. Appellant contends in his motion to correct errors addressed to the order of dismissal as well as in his brief in this appeal that the trial court should grant a hearing upon his post-conviction petition in accordance with our holding in McKinley v. State (1969), 253 Ind. 187, 252 N.E.2d 420. In McKinley, the appellant argued on appeal for the first time that the State had absolutely failed to prove an essential element of the crime of which he stood convicted. *628We held that since he had failed to present this contention to the trial court in his motion for new trial, this Court could not consider the merits of it on appeal, and relegated the appellant to a post-conviction petition under PC. 1, which would serve as an avenue to an appellate review of the insufficiency allegation in the event the trial court denied post-conviction relief.
One factor serves to distinguish the case at bar from McKinley, supra. In McKinley the appellant did not include the allegation that the evidence was insufficient in his motion for new trial. Here, the appellant did include the allegation in his motion to correct errors, and the trial court considered and denied the motion to correct errors, and in so doing determined that in his judgment the evidence had been sufficient to convict.
However, this difference in the two cases should not serve to place appellant in a less advantageous position to achieve appellate review of his omitted allegation. Appellant should have an avenue open to avoid the waiver imposed by AP. Rule 8.3(A),2 just as McKinley had an avenue open to avoid the waiver imposed by Rule 1-14(B). (New TR. 59[G])3 *629This avenue is-provided by PC. 1. I would reverse the judgment of the trial court dismissing appellant’s post-conviction petition and remand the case for the conduct of an evidentiary hearing.
Since the trial court has already ruled upon the merits of appellant’s insufficiency allegation, that issue would not be before the trial court again on remand. The issue would be whether or not the appellant should be bound by the waiver imposed by AP. Rule 8.3. This issue would properly be resolved in the trial court by consideration of: (1) the nature of right asserted in the allegation of error; (2) the effectiveness of appellate counsel; and (3) whether there exists some substantial basis or circumstances which would satisfactorily mitigate or explain petitioner’s failure to include the omitted argument in his brief. Kidwell v. State (1973), 260 Ind. 303, 295 N.E.2d 362; Langley v. State (1971), 256 Ind. 199, 267 N.E.2d 538. If the post-conviction petition should be granted upon a determination of no-binding waiver, the appellant should be granted the right to pursue his appellate review in the appropriate appellate tribunal. PC. 1, § 6. For the foregoing reason, I dissent.
Note.—Reported at 321 N.E.2d 842.
. “(e) If the pleadings conclusively show that petitioner is entitled to no relief, the court may deny the petition without further proceedings.
“(f) The court may grant a motion by either party for summary disposition of the petition when it appears from the pleadings, depositions, answers to interrogatories, admissions, stipulations of fact, and any affidavits submitted, that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The court may ask for oral argument on the legal issue raised. If an issue of material fact is raised, then the court shall hold an evidentiary hearing as soon as reasonably possible.”
. “(A) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated: * * *
“ (7) An Argument. Each error assigned in the motion to correct errors that appellant intends to raise on appeal shall be set forth specifically and followed by the argument applicable thereto. If substantially the same question is raised by two or more errors alleged in the motion to correct errors, they may be grouped and supported by one argument. The argument shall contain the contentions of the appellant with respect to the issues presented, the reasons in support of the contentions along with citations to the authorities, statutes, and parts of the record relied upon, and a clear showing of how the issues and contentions in support thereof relate to the particular facts of the case under review.
“. . . Any error alleged in the motion to correct errors not treated as herein directed shall be deemed waived.” (Emphasis added.)
. • “(G) Motion to correct error a condition to appeal. In all cases in which a motion to correct errors is the appropriate procedure preliminary to an appeal, such motion shall separately specify as grounds therefor each error relied upon however and whenever arising up to the time of filing such motion. Issues which could be raised upon a motion to correct errors may be considered upon appeal only when included in the motion to correct errors filed with the trial court.” (Emphasis added.)