dissenting.
In Johnson v. State (1974), 262 Ind. 183, 313 N.E.2d 542, the prosecutor filed an answer to Johnson's post-conviction petition, alleging that the asserted post-conviction claims had been waived. A post-conviction hearing followed, and the trial court, ignoring the waiver ground, adjudged Johnson's claims to be without substantive merit. This Court, having observed this state of the record, said:
The State in its answer brief on appeal makes persuasive arguments that each of the grounds for relief, relied upon by appellant in the trial proceedings has been waived. [citations omitted] But here, the trial judge, in his findings and conclusions, ignored the issues and evidence of waiver proffered by the State, and instead found that the appellant had failed in his burden of proof. Since the trial judge did not find a waiver to have occurred, and further since the State did not file crossg-errors on appeal alleging that the trial court erred in failing to make special findings and conclusions on the issue of waiver, we cannot base our decision here upon waiver principle. Langley v. State, [ (1971), 256 Ind. 199, 267 N.E.2d 538].
Johnson, 262 Ind. at 185-86, 313 N.E.2d at 544. The later amendment to TR 59(G) declaring that "the opposing party may raise any grounds as crosg-errors and also may raise any reasons to affirm the judgment directly in the appellate brief" does not supersede this holding. It does instead merely permit the appellee to raise the cross-claim that the trial court erred in failing to make special findings and conclusions on the issue of waiver.
Two bases support this Court's resolve not to render a decision upon waiver principle in cases such as this, namely 1) the omission of findings and conclusions by the trial court on the issue of waiver, and 2) the failure of the appellee to properly present such trial court omission in cross-errors. The lack of findings and conclusions by the trial court on the ground of waiver stands as an independent, sufficient, and proper basis for the appellate court to refuse to make a decision "upon waiver principle," i.e., be the first court to declare a right waived.
Where an appellee does now persuasively argue to the court on appeal in its brief that the trial court erred in failing to make findings and conclusions on an issue raised and litigated at trial, the appropriate remedy is a remand to the trial court to amend the findings and judgment, so that any material issues of fact may be resolved. The remedy is not, and should not be an *1382initial appellate declaration that the issue is resolved for or against the party having the burden of proof. Here, the trial court committed error when failing to instruct the jury at the habitual offender phase of Mickens's initial trial regarding the proper statutory sequence of prior felony convie-tions. Phillips v. State (1989), Ind., 541 N.E.2d 925. There was no objection to the instructions, and the invalidity of such instructions was not raised in the direct appeal or the first post-conviction proceeding. Accordingly, I would remand this case to the trial court with instructions to amend the findings and conclusions to include the issue of waiver, or in the alternative to grant post-conviction relief in the form of a new sentencing hearing.
KRAHULIK, J., concurs.