concurring in result.
I concur in the result reached by the majority. However, I am unable to agree with the rationale upon which the majority predicates the disposition of Issue IV as it relates to the applicability of Henry v. State (1977), Ind.App., 370 N.E.2d 972, and Issues III and VI as they relate to the threatened filing of an habitual offender charge during plea negotiations.
I.
Henry
The majority has misinterpreted Henry. This Court did not intend to limit its application to invalidating guilty pleas made in reliance upon unwritten, prosecutorial promises regarding sentencing. Henry, as it construes IC 1976, 35-5-6-2(a) (Burns Code Ed., 1979 Repl.), applies to all prosecu-torial recommendations which, under IC 35-5-6-2(a), must be submitted to the trial court in writing. In Henry, at 370 N.E.2d 975, this Court stated:
“Reliance, in entering a guilty plea, on a recommendation never made in accordance with 35-5-6-2, is an involuntary guilty plea.”
No limitation was placed on the application of Henry to prosecutorial recommendations regarding sentencing, and the majority has erred in finding one.
The language of IC 35-5-6-2(a) supports this interpretation of Henry. IC 35-5-6-2(a) provides in pertinent part:
“No recommendation may be made by the prosecutor to a court on a felony charge except (1) in writing, and (2) before the defendant enters a plea of guilty.”
The term “recommendation,” as it is used in IC 35-5-6-2(a), is defined by IC 1976, 35-5-6-l(b) (Burns Code Ed., 1979 Repl.), as follows:
“Recommendation” means a proposal by the prosecutor to a court that:
(1) A charge be dismissed; or
(2) A defendant, if he pleads guilty to a charge, receive less than the maximum penalty permitted by law.”
Construing these related statutes in pari materia, it is evident that a prosecutorial recommendation which provides that “a charge be dismissed” must be submitted to the trial court “in writing.” In accord with this construction is Elmore v. State (1978), Ind.App., 375 N.E.2d 660, 663, vacated on other grounds, 269 Ind. 532, 382 N.E.2d 893. The Supreme Court specifically approved and incorporated by reference the Court of Appeals’ resolution of the IC 35-5-6-2(a) issue presented in Elmore. 269 Ind. at 542, 382 N.E.2d at 899.
In the present case, the prosecutor promised to dismiss the theft charge pending against Davis and to refrain from filing an habitual offender charge in exchange for Davis’ promise to plead guilty to forgery. However, the oral plea agreement negotiated by Davis and the prosecutor was not submitted to the trial court in written form as required by IC 35-5-6-2(a). Davis pleaded guilty to forgery in reliance upon prosecutorial recommendations not made in accordance with IC 35-5-6-2(a). Thus, a technical violation of Henry and IC 35-5-6-2(a) occurred.
While the trial court erred in failing to require a written plea agreement to be submitted before accepting Davis’ plea of guilty, the trial court’s noncompliance with Henry and IC 35-5-6-2(a) does not constitute reversible error. The prosecutor fulfilled the promises to dismiss the theft charge and to refrain from filing an habitual offender charge. As was not the case in Henry, however, the trial court accepted Davis’ plea of guilty without deviation from the terms of the oral plea agreement.1 *263Thus, Davis was not prejudiced. Any error in failing to comply with the dictates of Henry and IC 35-5-6-2(a) was harmless.
II.
Habitual Offender Charge
Willie Davis’ guilty plea was a product of his desire to avoid a mandatory life sentence which would have been imposed had the prosecutor successfully pursued sentence enhancement under the habitual offender statute then in effect. The unfortunate aspect of Davis’ decision to plead guilty is that he may not have been eligible for habitual offender treatment. Neither the prosecutor nor Davis’ counsel thought it important enough to determine if any of Davis’ prior convictions could have served as foundational felonies under the habitual offender statute. After reviewing the record, I am unable to conclude as a matter of law that the trial court erred in finding that the prosecutor did not lack probable cause to threaten the filing of an habitual offender charge, nor can I conclude that the trial court erred in finding Davis was not denied the effective assistance of counsel. However, these conclusions are predicated solely on the insufficiency of the record presented by Davis on appeal and not on any substantive evidence which supports the conduct of the prosecutor and defense counsel during plea negotiations.
The majority has reached similar conclusions on both issues. It states that Davis failed to sustain the burden of proving that the prosecutor lacked probable cause and that defense counsel’s representation made the proceedings a “mockery of justice.” While I agree with the majority’s conclusions, I believe the majority’s opinion fails to reflect (1) the cavalier approach taken by the prosecutor in threatening to file an habitual offender charge without determining whether he had probable cause to do so, and (2) defense counsel’s passive acceptance of the prosecutor’s threat without investigating his client’s eligibility for habitual offender treatment. This perfunctory approach to the practice of criminal law cannot be tolerated.
The prosecutorial practice of threatening a criminal defendant with the filing of an habitual offender charge to induce a guilty plea to a substantive offense received the imprimatur of the United States Supreme Court in Bordenkircher v. Hayes (1978), 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604. The Indiana Supreme Court, following the precedent established by the highest court, has recognized the use of a “Bordenkircher threat” as a “legitimate bargaining tool of the State.” Holmes v. State (1980), Ind., 398 N.E.2d 1279, 1280. The Indiana Supreme Court presumably adopted the limitations imposed by the United States Supreme Court on the use of a “Bordenkircher threat.” Justice Stewart, writing for the majority in Bordenkircher, emphasized the facts of the case and sought to limit the Court’s holding to the
“course of conduct engaged in by the prosecutor in this case, which no more than openly presented the defendant with the unpleasant alternatives of foregoing trial or facing charges on which he was plainly subject to prosecution.... ”
434 U.S. at 365, 98 S.Ct. at 669, 54 L.Ed.2d at 612. The Supreme Court adopted a “probable cause” standard for determining whether the prosecutor properly believed the defendant to be eligible for prosecution *264under the threatened charge.2 The import of the Supreme Court’s decision is that without probable cause, the prosecutor’s threat to pursue an unavailable charge renders the defendant’s guilty plea involuntary. Michigan courts have recognized this basic principle. Addressing the same issue raised by Davis in the present case, the Michigan Court of Appeals stated:
“We start our analysis of the question by accepting the proposition that an habitual offender information is a proper subject of bargaining which, in itself, raises no problem of involuntariness of the plea. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). However,
‘Implicit in the proper use of a habitual offender charge as a plea bargaining tool is the legal applicability of the recidivist statutes to the particular defendant. The accused must be in fact a potential subject of habitual offender supplementation if this factor is to play a part in the plea negotiations. If the plea is induced by a promise to forego a recidivist proceeding, when no such proceeding would be warranted, the defendant is per se misinformed as to the benefit of his plea and the bargain is illusory. See, People v. Lawson, 75 Mich.App. 726, 255 N.W.2d 748 (1977), Hammond v. United States, 528 F.2d 15 (CA4, 1975).’
People v. [Roderick] Johnson, 86 Mich. App. 77, 79, 272 N.W.2d 200, 201 (1978).” .
People v. Sanders (1979), 91 Mich.App. 737, 741, 283 N.W.2d 841, 842-43. The limitation on prosecutorial discretion which the Supreme Court intended to impart in Bor-denkircher and which Michigan courts have recognized already was stated more eloquently by a federal appellate court well before Bordenkircher was decided. That court observed:
“We do not attempt to define every instance in which a promise or inducement which effects a guilty plea is permissible or is proscribed. But we have no difficulty in concluding that a threat by a prosecutor to do what the law will not permit, if it motivates a defendant ignorant of the impossibility, renders the plea involuntary. In such a circumstance, the representation takes on the character of a trick or an artifice inducing the plea, even though the prosecutor is also unaware of its forbidden character. In effect, the defendant is deceived into making the plea, and the deception prevents his act from being a true act of volition.”
Lassiter v. Turner (4th Cir. 1970), 423 F.2d 897, 900.
Whether the prosecutor in the present case had probable cause to threaten the filing of an habitual offender charge against Davis is suspect. The record reveals the prosecutor could not articulate any reason that made an habitual offender charge a subject of plea negotiations. When asked if he had investigated Davis’ eligibility for habitual offender treatment, the prosecutor responded, “Thoroughly, no.” The prosecutor stated that he must have had some information in Davis’ file indicating Davis had some prior convictions, but the prosecutor did not elaborate upon his assertion. When asked if he had probable cause to threaten the filing of an habitual offender charge, the prosecutor responded:
“Well, frequently I agree, I don’t know if I can give you a direct answer to your question. Frequently I agree, as a part of plea-bargains, not to file habitual offender charges. At the time I make that agreement I may have in my possession information indicating that the defendant is eligible for habitual offender treatment or I may not have sufficient information in my possession or I may have information in my possession indicating the defendant is not eligible for habitual offender treatment.”
The prosecutor was unable to recall what, if any, information he had used to justify the *265threat of prosecution under the habitual offender statute.3
It is incomprehensible why the prosecutor, when asked what motivated him to make a “Bordenkircher threat,” could not point to two or more convictions in Davis’ criminal record qualifying him for habitual offender treatment. Determining whether a prior conviction could serve as a foundational felony would have been a relatively easy task for an attorney with the expertise •of a prosecutor. Nevertheless, I cannot conclude that the prosecutor’s inability to articulate the grounds which motivated the threat entitles Davis to relief on appeal. At the hearing on his petition for post-conviction relief, Davis bore the burden of proving that his prior convictions could not have served as foundational felonies under the habitual offender statute. Davis failed to sustain this burden of proof. The record does not reveal that any of his prior convictions could not have served as foundational felonies.4 Thus, I must concur in the majority’s conclusion that Davis presented no evidence to support his contention that the prosecutor lacked probable cause in threatening to file an habitual offender charge.
The second prong of Davis’ attack on the voluntariness of his guilty plea involves the conduct of defense counsel during plea negotiations. Davis contends he was deprived of his Sixth Amendment right to the effective assistance of counsel because defense counsel failed to investigate Davis’ eligibility for habitual offender treatment. The *266foundation of his assignment of error is that defense counsel should have challenged the prosecutor’s “Bordenkircher threat” by asserting that none of Davis’ prior convictions could have served as foundational felonies. The majority rejects Davis’ claim because defense counsel’s conduct did not rise to a level which made the proceedings a “mockery of justice.” However, the majority is not complimentary of the representation afforded Davis. It observes that “counsel did not do all of the research that could have been done” and “counsel may not have been as judicious as he could have been in not inquiring further into Davis’ record.” With these observations, I must agree. However, the responsibility with which defense counsel must protect a client’s interests during plea negotiations is in need of further comment.
Defendants in criminal proceedings “are entitled to effective assistance of counsel” acting “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773; see also, Toilett v. Henderson (1973), 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235. If a defendant pleads guilty on advice of counsel, the defendant “is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act.” McMann, supra, 397 U.S. at 774, 90 S.Ct. at 1450, 25 L.Ed.2d at 775. In Indiana, defense counsel’s “serious derelictions” must have reached a level of conduct which rendered the proceeding “a mockery of justice, shocking to the conscience of the reviewing court.”5 Price v. State (1980), Ind., 412 N.E.2d 783, 787.
Davis contends defense counsel’s failure to investigate his prior convictions and failure to challenge the prosecutor’s “Borden-kircher threat” made plea negotiations and the guilty plea proceedings a mockery of justice. In support, Davis cites Smith v. State (1979), Ind., 396 N.E.2d 898, wherein the Supreme Court held the petitioner was deprived of the effective assistance of counsel because defense counsel was incapable of carrying out trial strategy on a fundamental point of constitutional law due to defense counsel’s ignorance of applicable law. The Supreme Court, at 396 N.E.2d 901, stated:
“His trial counsel’s inability to cope with the situation as per plan reflects a lack of adequate preparation regarding the rules of law favorable to defendant.
‘And mere perfunctory action by an attorney assuming to represent one accused of crime which falls short of presenting the evidence favorable to him and invoking the rules of law intended to prevent conviction for an offense of which the accused is innocent or the imposition of a penalty more severe than is deserved, should not be tolerated.’ Hillman v. State, (1954), 234 Ind. 27, 33-4, 123 N.E.2d 180, 182; Wilson v. State, (1943), 222 Ind. 63, 81, 51 N.E.2d 848, 855; Castro v. State (1925), 196 Ind. 385 [147 N.E. 321].
“Although decided under a standard of ‘reasonably competent’ representation, we note with approval the following language of the United States Court of Appeals, District of Columbia Circuit:
‘This court does not sit to second guess strategic and tactical choices made by *267trial counsel. However, when counsel’s choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.’ United States v. DeCoster (1973), 159 U.S.App.D.C. 326, 330, 487 F.2d 1197, 1201.’ ”
The principle of law enunciated in Smith was reiterated by the Court in Huggins v. State (1980), Ind., 403 N.E.2d 332, 334:
“[W]hen it can be shown that trial counsel failed to act because he was admittedly ignorant of the existing law, then a defendant has been denied the effective assistance of counsel.... ”
I would consider it a fundamental duty of defense counsel to investigate his client’s eligibility for habitual offender treatment when the prosecutor has threatened to file an habitual offender charge during plea negotiations. This conclusion is predicated on the Supreme Court’s holding in Smith that ineffective assistance of counsel occurs when defense counsel fails to invoke “the rules of law intended to prevent ... the imposition of a penalty more severe than is deserved .... ” Smith, supra, 396 N.E.2d at 901. When a defendant is ineligible for habitual offender treatment, defense counsel should vigorously assert that fact if the prosecutor threatens to file an habitual offender charge. To take such a stand, defense counsel must have conducted a full investigation of the defendant’s history of criminal activity. A review of the record in the present case indicates defense counsel failed to perform this fundamental duty for his client.
At the hearing on Davis’ petition for post-conviction relief, defense counsel testified that he did not know during plea negotiations whether any of Davis’ prior convictions were felonies. He did not research the Illinois statutes under which Davis received his convictions.6 Defense counsel did not explain the requirements of an habitual offender charge to Davis, though he did tell Davis that an habitual offender charge could be filed against him if he did not plead guilty to forgery. Defense counsel advised Davis to contact someone in Illinois to procure evidence showing his prior convictions could not serve as foundational felonies. From this evidence, it is difficult to believe defense counsel vigorously investigated the factual basis for the prosecutor’s threat to file an habitual offender charge against. Davis.
While defense counsel’s conduct failed to afford Davis adequate legal representation, I cannot conclude Davis is entitled to relief on appeal. Defense counsel’s failure to investigate does not constitute reversible error unless Davis establishes prejudice from defense counsel’s act or omission.7 The Indiana Supreme Court has stated that a reviewing court must “determine if and how a defense attorney’s ‘inadequacies’ have harmed the defendant at trial.” Smith, supra, 396 N.E.2d at 900. Without harm or prejudice, reversible error cannot be found. In a case nearly identical to the present case, a federal appellate court reached a similar conclusion and stated:
*268“Sand’s attorney advised him the prior convictions could be used for enhancement. If full investigation would have supported the advice that the enhancement allegations could be sustained, petitioner acted on correct advice and could show no prejudice from his attorney’s failure to investigate. Failure to inform a defendant who pleads guilty of an arguable defense, which is later proven invalid, does not constitute ineffective assistance of counsel ... The writ of ha-beas corpus should not be granted solely because an attorney’s correct advice was due to luck rather than to skill.” (Citations omitted)
Sand v. Estelle (5th Cir. 1977), 551 F.2d 49, 51, cert. denied, (1978), 434 U.S. 1076, 98 S.Ct. 1267, 55 L.Ed.2d 783. In the present case, Davis has failed to demonstrate that his prior convictions could not have served as foundational felonies for an habitual offender charge. The evidence Davis should have included in the record to show the prosecutor lacked probable cause to make a “Bordenkircher threat” should have been presented in the record to show that his prior convictions could not have served as foundational felonies. This, Davis has failed to do. Thus, Davis is not entitled to relief on appeal.8
. The majority’s observations in footnote 9 have little relevance to the trial court’s lack of control over the prosecutor’s discretion in dismissing pending charges in the context of a guilty plea based on a plea agreement. While the trial court may not control the prosecutor’s decision to dismiss a pending charge under IC 1976, 35-3.1-1-13 (Bums Code Ed., 1979 *263Repl.), the trial court exercises the ultimate in discretion in accepting or rejecting a guilty plea tendered as part of a plea agreement. Judge Hoffman, quoting from Note, “Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas,” 112 U.Pa.L.Rev. 865, 893 (1964), once observed:
“ ‘Plea arrangements should ordinarily be affirmed by the courts and the guilty plea accepted. But the judiciary, whenever a plea bargain has been made, bears an obligation to evaluate the circumstances of the case and determine the propriety of the particular bargain to prevent flagrant abuses of discretion by prosecutors.’ ”
Stacks v. State (1978), Ind.App., 372 N.E.2d 1201, 1207. If the trial court views the prosecutor’s attempt to dismiss a pending charge as a flagrant abuse of discretion, the trial court may reject the tendered guilty plea, thus forcing renegotiation of the guilty plea or trial on those counts the prosecutor desires to pursue.
. The Code of Professional Responsibility, DR 7-103(A), and the American Bar Association in its Standards for Criminal Justice Relating to the Prosecution Function, § 3-3.9(a) (2d ed. 1979), have also adopted a probable cause standard for prosecutors to follow in deciding whether to institute criminal charges.
. The prosecutor alluded to a robbery conviction from Illinois which he thought could have served as a foundational felony. However, the reasonableness of the prosecutor’s reliance on the robbery convictions must be questioned in light of the provisions of the applicable habitual offender statute, 1C 1971, 35-8-8-1 (repealed 1977). IC 35-8-8-1 provided that a prior felony conviction could be used to enhance a defendant’s sentence only if the defendant was “imprisoned in some penal institution” for the felony. The prosecutor’s records revealed that Davis was not imprisoned for the robbery conviction.
. I reach this conclusion with reluctance. I am not convinced by the majority’s holding that the deficiency in the record is attributable solely to Davis. During the PCR hearing, Davis denied that any of his prior convictions, all of which were from Illinois, could serve as foundational felonies. The prosecutor objected to Davis’ testimony on the grounds that Davis was not qualified to state an opinion on the Illinois statutes under which he received his convictions. The PCR court informed the parties that the “law of Illinois speaks for itself,” and the court thereafter took judicial notice of the Illinois statutes in question. This was clearly within the court’s authority. IC 1976, 34-3-2-1 and 34-3-2-2 (Burns Code Ed.); Holland v. Hargar (1980), Ind., 409 N.E.2d 604, 608. By taking judicial notice of the Illinois statutes, the court brought to its knowledge the existence and the provisions of the statutes without requiring Davis to submit formal proof of the statutes. Glover v. Ottinger (1980), Ind. App., 400 N.E.2d 1212, 1214; Revlett v. Louisville & N. R. Co. (1943), 114 Ind.App. 187, 193, 51 N.E.2d 95, 98; IX Wigmore, Evidence § 2567(a), at 535 (3d ed. 1940). Yet, in its “Memorandum Opinion,” the court concluded “[tjhe burden of proving that the [Illinois convictions] were misdemeanor convictions would be upon defendant who has offered no proof of the same.”
It seems incongruous that the court rejected Davis’ claim on the basis of his failure to prove those facts of which the court took judicial notice. However, Davis has not challenged the court’s conclusion on appeal, nor has he submitted evidence of the judicially noticed statutes. The only evidence in the record which relates to Davis’ prior convictions is an illegible FBI “rap sheet” and a summary of Davis’ prior convictions in the pre-sentence report. The summary in the pre-sentence report is far from conclusive in establishing whether any of Davis’ prior convictions could have served as foundational felonies. Thus, this court is prevented from making an independent evaluation of the prior convictions to determine if at least two of them could have provided the prosecutor with probable cause to make a “Borden-kircher threat.”
Michigan appellate courts, when confronted with a challenge to the making of a “Borden-kircher threat,” have remanded the case for an evidentiary hearing at which it could be determined whether any of the defendant’s prior convictions could serve as foundational felonies. People v. Sanders (1979), 91 Mich.App. 737, 283 N.W.2d 841; People v. Johnson (1978), 86 Mich.App. 77, 272 N.W.2d 200. This Court should not pursue the remedy followed in Michigan. Davis challenged the prosecutor’s threat in his petition for post-conviction relief. As such, the burden of proving his contentions was imposed on Davis, the petitioner. McGuire v. State (1980), Ind., 414 N.E.2d 294. Davis should not be afforded a second opportunity to prove those facts which should have been proven originally at the PCR hearing.
. The mockery of justice standard has been rejected in numerous jurisdictions. See authority cited in Cooper v. Fitzharris (9th Cir. 1978 (en banc), 586 F.2d 1325, 1328-29, nn. 3 & 5, cert. denied, (1979), 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793; Note, “Effective Assistance of Counsel: A Constitutional Right in Transition,” 10 Val.L.Rev. 509, 525-37 (1976). The Seventh Circuit is one of these jurisdictions which has rejected the mockery of justice standard and replaced it with the reasonably competent and effective representation standard. United States ex rel. Williams v. Twom-ey (7th Cir. 1975), 510 F.2d 634, 641. Nevertheless, the Indiana Supreme Court remains firm in its commitment to the mockery of justice standard. Baker v. State (1980), Ind., 403 N.E.2d 1069, 1070, cert. denied, - U.S. -, 101 S.Ct. 232, 66 L.Ed.2d 106. However, recent cases indicate the Supreme Court, while adhering to the mockery of justice standard, has modified that standard by the “adequate legal representation” standard of Thomas v. State (1969), 251 Ind. 546, 242 N.E.2d 919. See, Crisp v. State (1979), Ind., 394 N.E.2d 115, 119.
. The majority observes that defense counsel contacted Mr. Turner, who defense counsel thought was an attorney licensed to practice in Illinois, about securing information on Davis’ criminal record. However, Turner failed to respond. Defense counsel terminated his investigation of the matter after he received no response from Turner.
. Whether prejudice need be shown to support an allegation of ineffective assistance of counsel has been the subject of recent judicial debate. See, United States v. Decoster (D.C. Cir. 1979) (en banc), 624 F.2d 196; Cooper v. Fitzharris (9th Cir. 1978) (en banc), 586 F.2d 1325, cert. denied, (1979), 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793. Decoster and Cooper provide an exhaustive analysis of the issue. The majority in both cases concluded that prejudice must be shown to warrant relief from ineffective assistance of counsel. The majority view should be followed in Indiana at this time.
An ancillary issue raised in Decoster and Cooper is to whom should the burden of proving prejudice or the lack thereof be allocated. While dissenting opinions in both cases present persuasive arguments for the burden of proof being imposed on the state, Indiana courts have consistently held the burden of proof is imposed on the petitioner in post-conviction relief cases. McGuire v. State (1980), Ind., 414 N.E.2d 294. Thus, the burden of proving prejudice must be borne by the petitioner in the present case.
. It should be noted that the appellate brief of Davis, who is pursuing this appeal pro se, appears to have been prepared by a fellow inmate. In Webb v. State (1980), Ind., 412 N.E.2d 790, the Supreme Court prohibited a pro se appellant from filing an appellate brief prepared by a “jailhouse lawyer.” The Court stated:
“We hold that at the appellate stage, the appeal papers of a pro se defendant must clearly be the work-product of the defendant. Any manifestation that appellate briefs and other papers are the product of “jailhouse lawyers” will result in dismissal of the appeal. In this way, we preserve the right of self-representation while guarding against the unauthorized practice of law.”
412 N.E.2d at 792. The Supreme Court did not state that Webb would be applied retroactively to appeals filed before its handdown date.