concurring in part and dissenting in part with opinion.
I do not believe that Nuckles was denied the effective assistance of appellate counsel, and I therefore dissent from Section 4b of the majority’s opinion.
The majority concludes that Nuckles was denied the effective assistance of counsel because his appellate attorney failed to challenge the trial court’s imposition of consecutive sentences. The majority indicates that Nuckles’ appellate attorney could have made *217such a challenge by arguing from Kendrick v. State, 529 N.E.2d 1811 (Ind.1988).
In Kendrick, the defendant pled guilty to a charge which was pending against him in Division One of the Marion County Superior Court. As a result of his guilty plea, the defendant received a prison sentence of eight years. After this, the defendant pled guilty to other charges which were pending against him in another division of the court. As a result of this second guilty plea, the defendant received two prison sentences which were ordered to be served consecutive to the eight year sentence he had received pursuant to his first guilty plea. The defendant then filed a petition for post-conviction relief, seeking to withdraw the guilty plea he made in Division One. He claimed that his guilty plea should be withdrawn because the Division One court did not advise him “that as a consequence of the plea he would face the possibility that later sentences in the other division of the Superior Court could be ordered served consecutive to the one he would then be serving.” Id.
The defendant’s petition was denied by the post-conviction court. The supreme court affirmed this denial, holding that:
In the case on appeal, the Division One sentencing court was imposing a single sentence upon a plea of guilty to one of several counts, upon a plea agreement which called for a single sentence. There was therefore no occasion for the exercise of the general authority to order consecutive sentences granted by I.C. § 35-50-1-2(a).
Id. at 1312. The court concluded that:
[The post-conviction court] was correct in concluding as a matter of law that there was no possibility of consecutive sentences arising as a result of appellant’s plea of guilty while other charges pended against him. Consequently the lack of an advisement of such non-existent possibility could not impact the decision to plead- guilty.
Id.
Although the analysis set forth above fully disposes of the issue raised by the defendant, the court provided additional commentary on the interpretation of Indiana Code Section 35-50-l-2(a). The court stated that “[t]he language employed in Section (a) ... is restrictive. The general authority is limited to those occasions when a court is meting out two or more terms of imprisonment.” Id. This statement seems to provide a basis for the court’s subsequent assertion that “there would at a later time in the future, when sentencing upon the [defendant’s] other pending charges, in the absence of some agreement between the defense and prosecution, be no occasion for the exercise of that same authority.” Id.
“In appellate opinions, statements not nec.essary in the determination of the issues presented are obiter dictum. . They are not binding and do not become the.law.” Koske v. Townsend Engineering Co., 551 N.E.2d 437, 443 (Ind.1990). Because the court’s additional commentary on the interpretation of Section (a) was not necessary in the determination of the issue presented by the defendant, it was obiter dictum.
The question, then, is whether ineffective assistance of counsel may be found simply because an appellate attorney fails to raise an issue whose foundation is obiter dictum. I answer this question in the negative. I would hold that, under our standard of review for ineffective assistance claims, an appellate attorney who fails to raise an issue grounded in obiter dictum does not exhibit deficient professional performance.
Even if Kendrick's commentary on the interpretation of Section (a) were not obiter dictum, I would nevertheless be unable to find ineffective assistance here. “Failure to raise an issue on appeal does not, alone, demonstrate incompetent counsel.” Talley v. State, 442 N.E.2d 721, 724 (Ind.Ct.App.1982). I would therefore affirm the judgment of the post-conviction court in all respects.