concurring in part and dissenting in part. I concur in Justice Douglas’ well-reasoned dissent from the majority’s reversal of appellant’s conviction. However, under the circumstances disclosed I think the trial court’s failure to provide counsel reasonable time and opportunity to prepare and present evidence in mitigation of the imposition of the *99death sentence was a clear denial of due process. The absence of any mitigation evidence under the circumstances of this case suggests that Johnson was deprived of the effective assistance of counsel at a critical stage of the trial proceedings.
The majority opinion states with clarity that the presentation of little or no evidence in mitigation does not in and of itself constitute ineffective assistance of counsel. Justice Douglas resolutely argues that counsel for appellant made a reasoned decision to follow such a course. I find such a conclusion difficult to accept given the time frame of the guilty finding, lack of consultation with appellant, the appellant’s background, and the timing of the mitigation hearing.
I would limit our holding to a finding that the trial court committed reversible error in failing to protect appellant’s constitutional right to a fair trial and effective assistance of counsel. A duty rests on the court to see that an accused’s rights are upheld. Powell v. Alabama (1932), 287 U.S. 45. The Fifth Circuit Court of Appeals addressed this issue directly in United States, ex rel. Reis, v. Wainwright (C.A. 5, 1976), 525 F. 2d 1269, when it stated at 1273:
“* * * [T]he right to effective assistance of counsel is safeguarded both by the due process clause of the Fourteenth Amendment standing alone and by the Sixth Amendment guarantee of effective representation (applied to the states through the Fourteenth Amendment). When defense counsel’s representation is so blatantly incompetent as to render the whole proceeding fundamentally unfair, the due process clause itself is violated. When, however, the aggregate of retained counsel’s alleged errors does not rise (or sink) to the level of fundamental unfairness, in order to support a finding of a Sixth Amendment violation there must be a showing that the state was somehow involved in the ineffective representation:
“ ‘To find state involvement in retained counsel’s conduct which is adjudged to be less than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. * * *’ ”
The constitutional guarantee of effective assistance of counsel is generally taken to mean such assistance that the rights of the accused are properly safeguarded and his defense is competently and zealously presented. Johnson v. Zerbst (1938), 304 U.S. 458. If an attorney’s performance in representing an accused is such as to amount to no representation at all, the accused has clearly been deprived of effective representation. United States v. Williams (C.A. 9, 1972), 455 F. 2d 361, certiorari *100denied (1972), 409 U.S. 857. The court has a duty to insure that the defendant in a criminal proceeding has the effective assistance of counsel. Powell v. Alabama, supra; Ponzi v. Fessenden (1922), 258 U.S. 254.
Although a trial court has very broad discretion in the procedural conduct of a trial and due process requirements may vary with the circumstances, it is essential that defense counsel in a criminal case be afforded a reasonable opportunity to prepare his case. In the instant case the preparation time for the sentencing hearing was obviously inadequate.
The trial judge had a duty to insure that appellant’s rights were protected. I am painfully aware that, after conviction, counsel could make a most dangerous tactical decision and present nothing in mitigation. However, the trial court, when confronted with the peculiar circumstances at bar, had an obligation to give counsel for appellant adequate time to investigate and prepare evidence in mitigation or, at the very least, to make a record of counsel’s reasons for his actions in defending his client. This standard would fulfill the mandate contained in R.C. 2929.03(D)(1). The trial court’s failure to follow this procedure was reversible error.
Thus, I would affirm in part and reverse in part and remand this cause to the trial court for resentencing pursuant to R.C. 2929.06.