dissenting.
State and federal due process demand proof of guilt beyond a reasonable doubt, and the Indiana General Assembly adds that proof of habitual offender status must likewise satisfy the same highest of all evidentia-ry standards. Ind.Code Ann. § 85-50-2-8 (Burns.Supp.1982). The claim of insufficient proof of habitual offender status cannot be procedurally defaulted at trial Ind.Trial Rule 50(A)(5). However, under new state law, and contrary to the view held by the author of this opinion, it may, unlike the claim of insufficient proof of guilt, be procedurally defaulted on appeal. Weatherford v. State (1993), Ind., 619 N.E.2d 915 (DeBruler, J., dissenting). Such a procedural default on appeal does not now result in a bar in post-conviction proceedings, but does result in a heightened burden. Id. The question of whether such a procedural default demonstrates ineffective counsel at the habitual offender sentencing stage is a federal one governed by the Sixth Amendment, and not by its impact upon this court's default rule erected by the Weatherford case. I agree with Judge Najam writing for the First District in this case, Lingler v. State (1994), Ind.App., 640 N.E.2d 392, that the failure of appellate counsel to challenge the state's proof of habitual offender status, meets the criteria for ineffective assistance, i.e. (1) deficient performance and (2) prejudice. Lockhart v. Fretwell, 506 U.S. -, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). If the single claim of insufficient proof of habitual offender status had been made on appeal, reversal of the habitual offender determination would have been ordered.