Azania v. State , 738 N.E.2d 248 ( 2000 )

BOEHM, J.,

concurs in part and dissents in part as follows.

I concur in the majority’s resolution of all claims except the one identified as the “second”. For the reasons given in my dissenting opinion on Azania’s appeal from the retrial of the penalty phase, Azania v. State, 730 N.E.2d 646, 655 (Ind.2000) I believe he was incorrectly held to have waived consideration of the merits of the issue underlying that claim. Because the underlying claim was held to have been waived, it is now presented in the form of a claim of ineffective assistance of counsel for failure to preserve it. I believe Azania’s counsel should have been held to have properly preserved the underlying claim for appeal. This was because I believe there was room to consider the issue consistent with the stated purposes of the waiver doctrines invoked by the majority. Nevertheless, waiver would have been avoided by adherence to existing precedent at the time of Azania’s trial regarding the need for objection at trial in addition to a pretrial motion. A majority of this court held the issue waived. Unless that waiver is permitted to be raised as a claim of ineffective assistance of counsel, the result is that in this death penalty case this issue, which arose for the first time in retrial of the penalty phase, is never addressed in any form by the courts of this state. I would authorize Azania to preserve it in postconviction proceedings.