Concurring Opinion
Hunter, J.I concur only in the result of this case for the following reasons:
This is another in a long series of cases which points up the absolute and pressing necessity for a revision of this Court’.s post-conviction remedy rules. This matter is now dealt with by Rules 2-40 and 2-40A of the Rules of the Supreme Court of Indiana.
It is my firm belief that, among other necessary modifications, provision must be made in these rules for an evidentiary record to be made during these post-conviction proceedings in the trial court to better enable this Court to review any allegation of abuse of discretion that may be made. Such an allegation is made in the present case but how are we to determine it properly when we have no record before us revealing what took place below? We must resort to presumptions in favor of the trial court with no other basis than some childlike faith in the inherent wisdom of that court. In the absence of a record in these post-conviction proceedings, the burden of proof that is upon the petitioner in the court below becomes an almost irrebuttable presumption on petition for. writ of certiorari. For how can we say the court below committed an abuse of discretion if we have nothing before us from which we can determine the basis of the discretionary action complained of?
Until some change in the rule is wrought, a petition for writ of certiorari on the grounds alleged in this case will continue to be a useless exercise in futility for both the petitioner and this Court.
Jackson, J., concurs.Note. — Reported in 236 N. E. 2d 45.