The opinion
SHEPARD, Justice,
concurring in result.
I join the majority's decision because I regard the situation here as distinguishable from that in Miller v. State (1981), 275 Ind. 454 , 417 N.E.2d 389 . In Miller, the case went to the jury on the basis of four prior felonies, two of which did not meet the statutory criteria of Ind. Code § 35-50-2-8 (Burns 1979 Repl). This Court held that such was reversible, saying, "A general verdict can not stand when the case was tried and submitted on two theories, one bona fide and the other not." 275 Ind. at 460 , 417 N.E.2d at 848 . In a direct appeal such as Miller, the appellant is seeking relief based upon the failure of the trial judge to follow the code. When the failure is shown, an appellant is entitled to relief unless the State can prove beyond a reasonable doubt that the error was harmless.
As the petitioner in a post-conviction proceeding, Eldridge comes to the court in a different posture. He bears the burden of establishing by a preponderance of the evidence that the contentions of his petition are true. Lipps v. State (1981), Ind., 428 N.E.2d 237 . Here, the contention is that the sentence is erroneous. For all that appears, even without his 1965 conviction, Eldridge is a man who was convicted, sentenced, and imprisoned twice for felonies before he committed the instant burglary. He failed to establish otherwise in the trial court and is not entitled to relief here un *14 less it is plain that the conclusion of the post-conviction court was erroneous.