Dissenting.
In determining that petitioner failed to show that trial counsel was ineffective due to his consumption of alcohol or that any prejudice resulted from counsel’s actual performance at trial, the majority, in my opinion, overlooks one critical point: The merits of the numerous specific allegations contained in petitioner’s complaint to the State Bar relating to his former counsel's “constant state of intoxication” and his resulting effectiveness or ineffectiveness have never been properly considered or determined. Yet, seemingly, it is the “existence” of these non-existent findings which forms the basis for the majority’s decision. Because of this, I would reverse for an evidentiary hearing on the merits of petitioner’s claim relating to his counsel’s alleged intoxication and its effect upon his representation at trial. The specifics will be discussed in more detail.
The State Bar findings referred to by the majority were issued on May 19, 1982, and dealt only with complaints then pending. Petitioner’s complaint to the State Bar of Arizona was mailed on September 23,1982, and was, itself, pending when, on November 1, 1982, petitioner’s former counsel entered into an Agreement For Discipline By Consent. Since the Agreement specifically provided that “if the terms of the agreement are accepted ... then the D’Ambrosio matter currently pending before the State Bar of Arizona may be administratively closed,” no subsequent findings were made and the merits of petitioner’s specific claims were never considered, let alone determined, by the State Bar.
Petitioner then attempted to argue his former counsel’s , ineffectiveness at trial on direct appeal to this court. After noting the existence of the bar proceedings, we stated in an unpublished memorandum decision:
Apparently, some of [the stipulated] findings [of the State Bar of Arizona] *70relate to the trial of the instant case. However, none of those findings are part of the record on appeal. Moreover, the state bar findings are confidential. We will not consider matters which are not part of the record in determining the effectiveness of counsel. If counsel for appellant made statements concerning the trial of this case in the state bar proceedings, the matter should be developed in a petition for post-conviction relief filed pursuant to Rule 32. Should such a petition be filed, the provisions of Rule 32.2 regarding preclusion shall not be applicable.
(Emphasis added.)
Since the bar proceedings were concluded (by way of the Agreement For Discipline By Consent) prior to a determination of the merits of petitioner’s complaint, no “findings” arising from such proceedings exist in relation to petitioner’s claim. As such, the “findings” referred to in this court’s disposition of petitioner’s direct appeal did not and do not exist and, once again, the merits of petitioner’s claim of ineffectiveness resulting from counsel’s “alleged continuous state of intoxication” and its effect on trial counsel’s performance below were never considered.
Nevertheless, in accordance with this court’s directions after issuance of our memorandum decision, the record reflects that petitioner filed a Petition for Post-Conviction Relief pursuant to Rule 32, Arizona Rules of Criminal Procedure, in which he again raised and presented the issue relating to the ineffective assistance of his trial counsel, including that which resulted from or was associated with counsel’s alleged state of intoxication during trial. In considering the petition, however, the trial court, after restating the various allegations, simply concluded:
An examination of the issues raised in Petitioner’s complaint filed with the State Bar of Arizona demonstrates that each issue could have been raised on the appeal filed herin [sic] and in default thereof, Petitioner is precluded from relief under Rule 32.2 of the Rules of Criminal Procedure.
As the majority points out, however, this resolution totally ignores the fact that petitioner did raise the issues on direct appeal but was specifically precluded due to this court’s mistaken impression that “findings” had been or would be made in the State Bar proceedings regarding petitioner’s allegations against his counsel. In fact, it was because of what I perceive to be a misconception that this court specifically immunized petitioner from the preclusive effect of Rule 32.2 and directed him to develop the allegations in a Rule 32 petition. Thus, for a third time, petitioner raised the issue only to see it once again effectively sidestepped by the court without making any determination as to its merits.
Finally, petitioner filed a Motion for Rehearing, again presenting and restating his claim of ineffectiveness. The motion was summarily denied, which brings us to the Petition for Review currently before this court.
While the trial court may dismiss a petition for post-conviction relief where it determines from the pleadings and record that all of petitioner’s claims are frivolous and that it would not be beneficial to continue the proceedings {see Rules 32.7 and 32.6(c), Arizona Rules of Criminal Procedure), if the court finds a “colorable claim,” it is required by Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), to make a full factual determination before deciding the petition on its merits. To be “colorable,” a claim must have the appearance of validity. State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976); State v. Gunter, 132 Ariz. 64, 643 P.2d 1034 (App. 1982). That is, if petitioner’s contentions are taken as true, do they successfully show ineffectiveness of counsel thereby warranting review? See State v. Suarez, 23 Ariz.App. 45, 530 P.2d 402 (1975). See Rule 32.8; Comment to Rule 32.6. See also State v. Carriger, 132 Ariz. 301, 645 P.2d 816 (1982). If in doubt, a hearing should be held to allow the petitioner to raise all relevant issues, to resolve the matters finally, and to make a record for review. Id. at 305, 645 P.2d at 820.
*71The state argues and the majority agrees that petitioner has failed to cite specific instances of ineffectiveness caused by his counsel’s intoxicated condition. This conclusion is based upon a lack of findings relating to petitioner’s State Bar complaint. Yet, as the record reveals, no such findings were ever made since petitioner was not afforded the opportunity to present the merits of his complaint in the State Bar proceedings as a result of his former counsel’s Agreement For Discipline By Consent. Thus, the majority’s resolution is based upon the May 19, 1982, State Bar findings which were made before petitioner even filed his complaint. Nor do I believe that petitioner should be penalized by his former counsel’s decision to admit to the previous pending charges and consent to discipline which, under the agreement, had the effect of precluding determination of petitioner’s own pending allegations of misconduct and ineffectiveness.
The petitioner’s complaint before the state bar was specific and in depth, describing numerous instances of ineffectiveness which may be related to counsel’s alleged state of intoxication during trial. Additionally, petitioner submitted an affidavit of his trial counsel’s former secretary which attested to, among other things, counsel’s “severe drinking problem” during petitioner’s extensive trial. Taking these contentions as true in the context of whether a “colorable claim” has been presented, I firmly conclude that a colorable claim has been established entitling petitioner to an evidentiary hearing on his heretofore undetermined claims.
Accordingly, I respectfully dissent.
NOTE: The Honorable RUDOLPH J. GERBER, Maricopa County Superior Court Judge, was authorized to participate by the Chief Justice of the Arizona Supreme Court, pursuant to Arizona Const. Art. VI, § 3.