Pyle, J.
The issue of bifurcation in relation to a trial involving a SVF [serious violent felon] charge has been considered by our Court on various occasions. For example, in 2001, we explained that, in a trial where a defendant is charged only with being a SVF in possession of a firearm, bifurcation was “not practical, or even possible” because the defendant’s status as an SVF is an essential element of that SVF offense. Spearman v. State, 744 N.E.2d 545, 548 (Ind. Ct. App. 2001), reh’g denied, trans. denied. We recognized, however, that prejudice may arise when a jury is informed that a defendant has a prior conviction as part of the evidence establishing the status element of a SVF charge, but we noted that “the focus cannot be placed solely on the question of the prejudicial effect of such evidence.” Id. at 549. We explained that, instead, “the focus should be on whether the prejudice arising from evidence of prior crimes outweighs the probative value of such evidence.” Id. Finally, we stated that a trial court could “mitigate the prejudicial effect of evidence of a prior conviction by excluding evidence regarding the underlying facts of the prior felony and limiting prosecutorial references thereto.” Id. at 550.
We note that members of our Court have expressed their concern with the potential for prejudice in a trial involving a sole SVF charge due to the jury hearing about a defendant’s prior conviction and label as a serious violent felon. See Spearman, 744 N.E.2d at 550-55 (Darden, J., concurring in part and dissenting in part) (stating that “[b]ecause the accused is clothed with a presumption of innocence, it is antithetical to our system of jurisprudence to label one accused of a crime as a ‘serious violent felon’ during proceedings to determine guilt”); Imel v. State, 830 N.E.2d 913, 920 (Ind. Ct. App. 2005) (Barnes, J., concurring in result) (stating that, where a jury hears repeated references to the defendant being a serious violent felon, there is a “strong possibility that as we now charge and try these [SVF] cases, the fundamental tenant of our American system of criminal law—innocent until proven guilty—is, in my view, seriously challenged”), trans. denied.
In August 2003 and January 2004, respectively, our Court and the Indiana Supreme Court addressed the bifurcation issue in the situation where a defendant faces a SVF charge and an additional felony charge. In our Court’s opinion in Hines, which was adopted by our Indiana Supreme Court, we held that the trial court had abused its discretion by denying the defendant’s motion to bifurcate his trial where the defendant was charged with a SVF charge and a felony robbery charge because “in the absence of a bifurcated proceeding, [the defendant] did not receive a fair and impartial trial.” Hines, 794 N.E.2d at 474. We explained that the defendant’s status as a serious violent felon was not an essential element of his robbery charge and was not probative of whether the defendant had committed robbery. Id. at 472. The Indiana Supreme Court agreed and held that the trial court had abused its discretion by denying the defendant’s motion to bifurcate his SVF charge from his robbery charge because “the prejudice arising from evidence necessary to sustain the defendant’s [SVF] conviction—evidence of a prior felony conviction—substantially outweighed its probative value for the robbery charge.” Hines, 801 N.E.2d at 635. The Supreme Court reversed Hines’s convictions and remanded for a new trial.
Pace’s jury trial was held in November 2004, which occurred almost one year after our Supreme Court had issued its opinion in Hines. Pace’s trial involved the charge of dealing in amphetamine and the charge of being a SVF in possession of a firearm, in which his status as a SVF was based on his 1992 conviction for dealing in cocaine. Despite being charged with a felony in addition to the SVF charge and the Supreme Court’s holding in Hines, Pace’s trial counsel, Attorney Garcia, did not file a motion to bifurcate the trial on the two charges. Attorney Garcia testified that he did not recall if he was aware of the Hines case at the time he represented Pace at trial but acknowledged that Pace’s prior dealing conviction was irrelevant and had no probative value to his Based on Hines, and under the facts of this case, we conclude that a motion to bifurcate the SVF charge from the dealing charge would have been granted. See Hines, 801 N.E.2d at 635. Here, as in Hines, the prejudice arising from evidence of Pace’s prior dealing conviction substantially outweighed its probative value for the dealing in amphetamine charge. Accordingly, under the specific circumstances here, we conclude that trial counsel’s failure to file a motion to bifurcate constituted deficient performance. See Moore, 872 N.E.2d at 621 (explaining that to prevail on an ineffective assistance of counsel claim based upon counsel’s failure to file a motion on a defendant’s behalf, the defendant must demonstrate that such motions would have been successful). See also Clayton v. State, 673 N.E.2d 783, 786 (Ind. Ct. App. 1996) (citing Gann v. State, 550 N.E.2d 803, 805 (Ind. Ct. App. 1990)) (explaining that where counsel’s failure to act is based on ignorance of the law, the nonfeasance will not be deemed strategy and may constitute ineffective assistance of counsel).
Pace, however, must also demonstrate that he was prejudiced by trial counsel’s performance. In other words, Pace must show that there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different. See to trial counsel’s failure to file a motion to bifurcate the proceeding on the two felony charges. Here, Pace’s convictions for dealing in amphetamine (possession with intent to deliver) and possession of a handgun by a SVF were based on constructive possession of the drugs and gun. Due to counsel’s failure to file a bifurcation motion, the jury heard multiple references to Pace being a serious violent felon and specific reference to his prior conviction as part of the trial on both charges. For example, in the preliminary instructions and during the prosecutor’s opening argument, the jury was told that Pace was a serious violent felon because he had a prior conviction for dealing in cocaine. Furthermore, in addition to the jury hearing that Pace had a prior dealing conviction, it also heard evidence that he had two prior dealing charges for which he was never convicted. As Judge Barnes’ so aptly stated in his concurring opinion from Pace’s direct appeal:
I note here my concern with the ability of a person, much less a juror asked to determine the guilt of a suspected drug dealer, to divorce him or herself from the fact that this defendant, presumably clothed with a presumption of innocence, previously has been convicted of being just what he is now alleged to be – a drug dealer.
Pace v. State, No. 20A03-0504-CR-158, slip op. at 8; see also (App. 207).
Given the prejudicial nature of the evidence regarding his prior dealing in cocaine conviction and dealing charges for which he was not convicted, especially in light of his dealing in amphetamine conviction, we conclude that Pace has met his burden of showing that he was prejudiced by counsel’s failure to file a motion to bifurcate.
ROBB, C.J., and MAY, J., concur.