concurring in result.
Given the procedural posture of this case, I readily concur in the result reached here. In order to demonstrate ineffective assistance of appellate counsel based on the failure to raise an issue, a defendant must demonstrate that such failure was unquestionably unreasonable in light of the facts of the case and the precedent available to counsel when the decision not to raise an issue was made. Concepcion v. State, 796 N.E.2d 1256, 1259 (Ind.Ct.App. 2003), trans. denied (quoting Stevens v. State, 770 N.E.2d 739, 760 (Ind.2002), cert. denied ). Here, at the time of Imel's direct appeal this court had decided Spear-mam, which as Judge Baker notes held that bifurcation of a trial for a defendant charged solely with being a serious violent felon in possession of a firearm is not *920required. Thus, appellate counsel's decision not to challenge Imel's conviction because of non-bifurcation of his trial and references to him being a serious violent felon was a reasonable decision, in light of the Spearman precedent.
I would be remiss, however, if I did not state that the phrasing of the serious violent felon statute and its attendant difficulties troubles me deeply. I acknowledge and agree that the state of the law in Indiana is as Judge Baker has so carefully and correctly outlined. Spearman is valid precedent that apparently has been approved of by our supreme court in Hines. What bothers me is what I perceive to be the strong possibility that as we now charge and try these sorts of cases, the fundamental tenet of our American system of criminal law-innocent until proven guilty-is, in my view, seriously challenged. In this respect, I agree with many of the points raised by Judge Darden in the dissent he authored in Spearman. See Spearman, 744 N.E.2d at 550-55 (Darden, J., concurring in part and dissenting in part).
The fact is that aggressive and skillful prosecutors, we presume, read our decisions and tailor their strategies to pass legal muster. Trial judges, too, hamstrung by the verbiage of the statute and guided by Spearman and Hines, conduct their trials pursuant to this guidance and authority. I have no sympathy for or empathy with defendants who fall into the serious violent felon category. Many are what the name implies, career eriminals whose conduct merited them going to the Department of Correction for a significant period of time. I also have no qualm with the sound public policy behind prohibiting such defendants from possessing firearms once they have been released from prison. However, a defendant charged with being a serious violent felon in possession of a firearm is still entitled to be presumed innocent of possessing a firearm. By repeatedly referring to the defendant as a serious violent felon, beginning with voir dire and continuing through the trial, arguments of counsel, and jury instructions, it certainly is readily conceivable that a jury may give the State the benefit of the doubt on the question of possession because the defendant is clearly a "bad guy," rather than giving the defendant the benefit of the doubt as is constitutionally required.
I believe that Indiana, through the General Assembly, and perhaps advised by the Criminal Law Study Commission, Indiana Prosecuting Attorney's Council, and the Indiana Public Defender's Council, can and should devise nomenclature and a protocol for trying these types of cases that punishes the guilty but does not employ the drumbeat of the "serious violent felon" label throughout a defendant's trial To paraphrase Justice Potter Stewart, I know unfairness when I see it. The current law regarding the crime of being a serious violent felon in possession of a firearm is not right and, more importantly, it is not fair.