dissenting.
The trial court accepted Alston's plea of guilty on April 16, 1982, without having given him all of the advisements required by I.C. 35-4.1-1-8 (repealed 1981). Specifically, the court failed to advise him that by a plea of guilty he admitted the truth of all facts alleged in the information and waived his right to a public and speedy trial. Neither did the court advise him that it was not a party to nor bound by any plea agreement that the parties had reached. On August 16, 1983, the court denied Alston's petition for post-conviction relief which failed to allege these omitted advisements. This denial was affirmed upon appeal. Al ston again sought post-conviction relief contending that he was denied effective assistance of counsel at his first post-conviction relief hearing because his counsel failed to raise the issue of the omitted advisements. Denial of relief is the focus of this appeal.
Pursuant to Ind. Rules of Procedure, Post-Conviction Rule 1, § 8, all grounds for relief must be raised in the original petition unless good cause is demonstrated. In Wells v. State (1985) 1st Dist.Ind.App., 482 N.E.2d 786, the defendant was denied post-conviction relief because he failed to present the grounds in his first petition. The court noted that Wells had no excuse for this default:
"Wells does not even attempt to justify this procedural default. Most notably, he does not allege ineffective assistance of appellate counsel in his present petition." Id. at 788.
The suggestion is apparent that had Wells alleged ineffective assistance, such would have been sufficient reason to entertain the subsequent petition.
Alston has alleged ineffective assistance of counsel and therefore has at least facially set forth sufficient reason to consider the omitted advisements. The alleged ineffective assistance of counsel itself could 'not have been earlier raised because the deficient performance occurred at the first post-conviction relief hearing. An allegation of ineffective counsel at a post-conviction proceeding following a guilty plea, as here, is analogous to an allegation of ineffective counsel in a direct appeal as was the situation in Wells, supra, 482 N.E.2d 786.
In the case before us, the attorney who failed to present the guilty plea advisement defect at the first post-conviction proceed*1336ing was the counsel who represented Al ston at the guilty plea stage. The same attorney filed the belated motion to correct errors and the appellate brief which resulted in an affirmance of the denial of post-conviction relief. It tortures the concept of waiver beyond reason to hold Alston responsible for the failure of counsel to allege his own incompetence. In my estimation the allegation and demonstration of ineffective assistance was timely presented when, in the post-conviction petition and proceeding under review, the matter was alleged and demonstrated.
The majority appears to ignore that the crucial allegation in the appeal before us is ineffective assistance of counsel. If the doctrine of waiver were to be applied to every failure to raise an issue at the first possible opportunity, there could be no relief afforded if such failure were, as here, the result of counsel's ineffective representation and the matter were presented at the first opportunity by new counsel.
Post-Conviction Rule 1, § 8 provides:
"All grounds for relief available to a petitioner under this rule must be raised in his original petition. Any ground finally adjudicated on the merits or not so raised and knowingly, voluntarily and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the petitioner has taken to secure relief, may not be the basis for a subsequent petition, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original petition." (Emphasis supplied.)
It clearly contemplates the situation before us. See Patton v. State (1987) 2d Dist.Ind.App., 507 N.E.2d 624, trans. denied. See also Lombardo v. State (1986) Ind., 499 N.E.2d 1075, in which our Supreme Court applied waiver to a second petition for post-conviction relief although counsel in the first post-conviction proceeding had been counsel for the guilty plea. However, the Supreme Court reversed denial of a third post-conviction petition with instructions to grant a change of judge. Such remand certainly contemplated that the new judge might appropriately consider the allegations of ineffective assistance of counsel at the first post-conviction proceeding. If such allegations were waived as a matter of law, as the majority here suggests, the remand to grant the change of judge would have been a meaningless expenditure of judicial resources.
White itself contains support for my view that there is no waiver in this situation. In affirming the trial court's denial of post-conviction relief, our Supreme Court clearly contemplated a subsequent petition which would withstand a claim of waiver:
"If appellant has any other basis upon which to establish that his plea was not voluntary and intelligent, he may file a new petition." 497 N.E.2d at 906.
The majority opinion today effectively erases this language from the Supreme Court's opinion in White. I believe that if such modification of the law is to be made it should be made by the Supreme Court.
The White standard places upon Alston the burden to show that the omission of the advisements prejudiced him. Alston has not alleged that his plea agreement would have been different had he known and understood the omitted advisements. Therefore, the majority is correct insofar as it holds this ground for relief insufficient to set aside the plea of guilty. However, such determination should not end our consideration of this appeal.
Alston also contends that his plea of guilty must be set aside and his conviction vacated because he was denied effective assistance of counsel. To evaluate Al ston's claim of ineffective counsel, we must decide whether his counsel's performance was so deficient that he was not functioning as guaranteed by the Constitution, and if so, whether this deficient performance was so prejudicial as to deprive Alston of fundamental fairness. Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; Burse v. State (1987) Ind., 515 N.E.2d 1383. To establish deficiency of his counsel's conduct, Alston must show "counsel's specific acts or omis*1337sions which, viewed from the perspective of counsel at the time of the trial, fell below the standard of reasonable professional assistance." U.S. v. Payne (7th Cir.1984) 741 F.2d 887, 891. To satisfy the second requirement, Alston must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 104 S.Ct. at 2065.
Alston has established deficiency of his counsel's performance. At the first post-conviction relief hearing, Alston's counsel failed to raise the issue of the omitted advisements. At this 1983 hearing, the standard of review was that announced in German wherein omitted advisements were sufficient cause for granting post-conviction relief. Sexton v. State (1983) Ind., 455 N.E.2d 910; Early v. State (1983) Ind., 454 N.E.2d 416; Brown v. State (1982) 4th Dist.Ind.App., 435 N.E.2d 582. From the record, it appears clear that Alston's counsel was aware of the German standard at the time of the hearing, having filed a brief in Early, supra, which argued for relief under the German standard. His failure to argue for such relief for Alston constitutes deficient performance of counsel.
Alston also satisfies the second prong of ineffective assistance. But for his counsel's failure to argue the omitted advise-ments, Alston would have been granted post-conviction relief. The German standard, in effect at the time of Alston's first post-conviction relief hearing, provided that "it is the duty of the trial judge to comply strictly with the terms of Ind.Code § 35-4.1-1-8...." 428 N.E2d at 286. Indiana Code 35-4.1-1-8 prohibited the court from accepting a plea of guilty without first addressing the defendant and
"(b) informing him that by his plea of guilty he is admitting the truth of all facts alleged in the indictment or information or to an offense included thereunder and that upon entry of such plea the court shall proceed with judgment and sentence;
(c) informing him that by his plea of guilty he waives his rights to a public and speedy trial by jury ...;
* La # U La L
(e) informing him that the court is not a party to any agreement which may have been made between the prosecutor and the defense and is not bound thereby")
The record before us clearly shows that the court did not give Alston these advisements before accepting his plea of guilty. Applying the German standard when these same advisements were omitted, Indiana courts have granted post-conviction relief. Seyton, supra, 455 N.E.2d 910 (omission of I.C. 35-4.1-1-3(b); Early, supra, 454 N.E.2d 416 (omission of I.C. 35-4.1-1-3(e)); Brown, supra, 435 N.E.2d 582 (omission of I.C. 35-4.1-1-3(c) and (e). Alston, also, would have been granted post-conviction relief but for his counsel's deficient performance. Alston has shown ineffective assistance of counsel.
It is not unreasonable for the law to place a premium upon finality and to discourage repetitive attempts to obtain judicial relief, However, the law in its current state affords one who has been convicted of crime an opportunity to fully and fairly present reasons why the conviction should be set aside. Even though a defendant may have had prior access to the appellate or post-conviction process, if through no fault of his own the opportunity has been frustrated, the system should not deny meaningful review. Justice may not be reluctantly or grudgingly administered.
I do not have, nor could I have, any quarrel with the observations of the majority concerning the existence of adequate factual basis for acceptance of Alston's guilty plea. Nor do I quarrel with the sentiment expressed by the majority which decries the fact that under Germar, many guilty pleas were set aside because the trial court failed to dot i's or cross t's.
The fact remains however that had counsel in the previous post-conviction proceeding presented the legal issue known by him to exist, the conviction of his client, Alston, would have been set aside. I cannot view this failure as other than an example of ineffective assistance of counsel.
*13381 do not view it as a transgression upon the myriad cases which hold White to have retroactive application. I view it purely and simply as a case in which the defendant had ineffective assistance of counsel and in which that ineffective assistance resulted in demonstrated prejudice. But for the default of the attorney, Alston's guilty plea would have been vacated. That state of facts calls for a reversal.
I would remand with instructions to vacate the conviction, to set aside the guilty plea and for further proceedings upon the charges as originally filed and in contemplation of Ind. Rules of Procedure, Post-Conviction Rule 1, § 10(c)(1).