*446DISSENTING OPINION
Hoffman, C.J.Appellant Michael Roy Branan (Branan) petitioned the trial court herein for post-conviction relief after having been convicted of being an accessory before and after the fact to a theft. After a hearing, his petition was denied. On appeal, Branan alleges that the trial court erred in not voiding his guilty plea to the above charges where the same counsel represented both Branan and the State at different stages of the criminal proceedings which resulted in his conviction.
The evidence most favorable to the appellee State of Indiana contained in the record of the post-conviction proceeding in the trial court shows that Branan was charged by affidavit with being an accessory before and after the fact to a robbery in Mishawaka, Indiana. Because Branan stated he could not afford an attorney but desired one, William Whitman, then a St. Joseph County Public Defender, was appointed as Branan’s counsel. Mr. Whitman discussed the case with Branan and represented him at a hearing where he waived arraignment and entered a plea of not guilty to both charges. Shortly thereafter Branan retained private counsel who represented him for the balance of the criminal proceedings.
Upon the advice of his private counsel, Branan withdrew his pleas of not guilty and pleaded guilty to the lesser offenses of accessory before and after the fact to a theft. These pleas were accepted by the trial court and, at a later hearing, Branan was sentenced by the trial court.
At the sentencing hearing, the State was represented by the same William Whitman who had originally been appointed as a Public Defender to represent Branan. Mr. Whitman’s participation in this hearing was limited to a single statement that the State had no recommendation as to sentencing.
Due process of law and the precepts of professional ethics forbid the participation of an attorney in the prosecution of a defendant whom he has previously represented in the same *447or a closely related matter. See: Canons 5 and 6, Indiana Code of Professional Responsibility, and Disciplinary Rule 5-105, promulgated by the Indiana Supreme Court; Wilson v. The State (1861), 16 Ind. 392. This is because this situation presents a conflict of interest unknown to the defendant at the time he confidentially disclosed information to the attorney, and may result in an unfair advantage to the prosecution through the attorney’s knowledge of such information.
However, regardless of the propriety of this attorney’s conduct under the Code of Ethics, the only question germane to the case at bar is whether the events described hereinabove resulted in prejudice to the defendant’s right to due process of law. It must be remembered that the case at bar is an appeal from a trial court’s determination that Branan is not entitled to relief on his post-conviction petition. Furthermore, the burden is upon a petitioner such as Branan to establish his grounds for relief by a preponderance of the evidence in the trial court. Ind. Rules of Procedure, Rule P.C. 1, § 5; Harrison v. State (1973), 155 Ind. App. 231, 292 N.E.2d 612, 35 Ind. Dec. 165; Dixon v. State (1972), 154 Ind. App. 603, 290 N.E.2d 731, 34 Ind. Dec. 399.
In the case at bar there was simply no evidence of prejudice to the defendant by reason of Mr. Whitman’s acts presented at the hearing on Branan’s petition. Indeed, the evidence presented at that hearing overwhelmingly supports the determination of the trial court herein. Mr. Whitman testified that he never divulged to any fellow prosecutor any information obtained by reason of his attorney-client relationship with Branan. Moreover, Mr. Whitman never actively participated in the prosecution of Branan. Rather, he only appeared at Branan’s sentencing and informed the trial court that the general policy of the St. Joseph County Prosecutor’s office is to not recommend sentences to criminal trial courts. There could be no prejudice to Branan’s rights upon these facts.
*448While the majority opinion declined to decide the above issue raised by the appellant, it proceeds to decide an issue not raised by Branan’s petition, not argued before the trial court, and not presented to this court in his brief. The majority opinion does so under the guise of a review of fundamental error.
However, the majority’s review of such error results from a misapplication of the rules of law surrounding such review on appeal. The following statement and citation in the majority opinion give rise to this misapplication:
“We will not ignore such a transgression of a defendant’s fundamental rights. Kleinrichert v. State (1973), 260 Ind. 537, 297 N.E.2d 822.”
The rules concerning appellate review of allegations of fundamental error are properly stated in Ervin v. State (1973), 158 Ind. App. 594, 303 N.E.2d 835, at 838, 39 Ind. Dec. 660:
“Issues inherently revealed by the record in a criminal case may be considered on appeal even when not raised below, ***, [Citations omitted.] However, the court may consider such issues only ‘when *** they are clearly and adequately presented in appellant’s brief with supporting bill of exceptions.’ Wilson v. State, supra, at 78 of 222 Ind., at 854 of 51 N.E.2d. However, not every case where a defendant’s attorney carelessly or ignorantly fails to preserve error for appeal calls for review. A substantial infringement of a defendant’s [constitutional rights] *** must be shown to invoke the plain error principle.” (Emphasis supplied.)
The case cited in the quotation from the majority opinion hereinabove set forth does not hold that a court of review may scrutinize the record in a criminal case for possible fundamental errors not advanced by a defendant-appellant. Indeed, Kleinriehert indicates, as do the other cases dealing with this subject, that the issue deemed to be fundamental error was presented to the court in the appellant’s brief:
“Normally, this Court will not consider an issue which is first raised on appeal, but a court of review cannot ignore a fundamental error which is apparent on the face of the *449record, such as an incorrect sentence.” (Emphasis supplied.) 297 N.E.2d 826.
Based on the foregoing, it is apparent that the majority opinion unnecessarily decides an uncontroverted issue, and declines to decide the issue which was argued by the parties, and which may be readily resolved upon the record now before the court.
The decision of the trial court should be affirmed.
Note. — Reported at 316 N.E.2d 406.