concurring.
I separately concur in the majority opinion only because I believe it is indeed clear "when, if at all, fundamental error is available in a post-conviction proceeding." At 344. Our supreme court's decision in Propes v. State (1990), Ind., 550 N.E.2d 755, unequivocally states that "fundamental error is cognizable in a petition for post-conviction relief even absent preliminary proof of ineffective assistance of counsel." 550 N.E.2d at 759. This statement can only mean that a free-standing claim of fundamental error is reviewable in a post-conviction relief proceeding. Then, the supreme court decision in Hendriz v. State (1990), Ind., 557 N.E.2d 1012, holds that a free-standing claim of fundamental error is never waived. Hendriz is an appeal of an adverse decision in a post-conviction relief proceeding. The petitioner in Hendrix had previously had a direct appeal of his conviction, an appeal of a subsequently filed post-conviction relief proceeding and an appeal of a habeas corpus proceeding. Nevertheless, the supreme court, in considering Hendrix' claim his trial counsel was ineffective, in its opinion addressing Hendrix' third post-conviction relief type proceeding, reviewed Hendrix' asserted errors in the quality of his representation by his first post-conviction relief counsel. The court concluded there was "nothing in the record ... to indicate inadequate performance of appellant's first post-conviction relief counsel." At --. Thus, based upon Propes and Hendrix I must conclude a free-standing claim of fundamental error is reviewable at any time in any proceeding.
Also, I separately concur because I disagree with the majority addressing any of Smith's non-fundamental error sentencing claims. However, because the majority finds the asserted errors without merit, I concur in their disposition.