.concurring in result.
Although I agree with the result reached by the majority, I reach that result in a very different way.
First, I do not believe that appellate counsel was ineffective for failing to raise the issue of consecutive sentences in Nuckles’ direct appeal. As stated by the majority, “[A]n ineffective assistance claim cannot be based on counsel’s failure to argue the legal reasoning of cases not yet decided at the time.” Maj. opinion at 214 (quoting Shaffer v. State, 674 N.E.2d 1, 7 (Ind.Ct.App.1996)). The proposition the majority relies upon from Kendrick v. State, 529 N.E.2d 1311 (Ind.1988), is contained in dicta. See id. at 1312 (Pivarnik, J., concurring). For this reason, counsel should not be deemed ineffective for failing to argue that consecutive sentences were improperly imposed. Moreover, if, as the majority concludes, the error was fundamental, the error was not waived, and it is unnecessary to reach the question of effectiveness of counsel.
Second, as the author of State v. Winters, 678 N.E.2d 405 (Ind.Ct.App.1997) cited by the majority, I do not believe that eases holding to the contrary “represent the better view.” Maj. opinion at 216.