dissenting in part. I disagree with that part of the majority opinion which finds the petitionér’s allegation of ineffective assistance of counsel to be without merit. The majority seems to combine the two-pronged test on effective assistance of counsel into a single one. It appears that the opinion has the effect of saying we need only consider the second prong of the Strickland test. I do not agree with the approach taken. It is necessary to resolve the issues in the first step before reaching the second. Both must be dealt with in this case.
The allegations in appellant’s petition, if true, would, in my opinion, render counsel’s assistance ineffective. Therefore, the trial court should have held a hearing to make findings of fact. It should be remembered that the petitioner was charged with capital murder, a serious charge. The defense counsel was appointed in September, 1982. The guilty plea was entered in January, 1983. According to the allegations the appointed defense counsel made only one motion, a motion for discovery. For more than four months counsel never made investigative efforts of any kind. Additionally, the petitioner claims that counsel: (1) failed to interview any witnesses, (2) relied entirely on the prosecutor’s file, (3) did not make an inquiry concerning statements made by any witnesses, (4) failed to examine photographs or other evidence, and (5) failed to contact specific witnesses whose names and addresses had been furnished to him by the appellant. In sum and substance the allegation of the Rule 37 petition was that after counsel was appointed, he did nothing at all by way of defense, except file one motion for discovery, until the time he pled the appellant guilty.
A hearing may have resulted in a finding that part or all of the allegations were false. However, without a hearing we cannot determine the issue of effective assistance of counsel. It would have been a relatively easy matter to hold an evidentiary hearing on this limited issue.
The Sixth Amendment established the right of counsel in order to protect the fundamental rights to a fair trial. Powell v. Alabama, 287 U.S. 45 (1932). The right has been interpreted to mean a right to “effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759 (1970). Strickland holds that counsel has a duty to make a reasonable investigation or to make a reasonable decision that particular investigations are unnecessary.
Entitlement to counsel is not qualified or conditioned upon guilt or innocence. The United States Supreme Court recently stated: “The constitutional rights of criminal defendants are granted to the innocent and guilty alike.” See Kimmelman v. Morrison, 106 S.Ct. 2571 (1986). Even the guilty are entitled to a fair trial before punishment. Failure to make a timely motion may render counsel ineffective. See Kimmelman v. Morrison, supra. A motion to suppress, a motion in limine and several other motions are typical in capital murder cases. None of these motions was filed in this case, according to the allegations of the petition. From the petition one could conclude that the defense counsel merely accepted the appointment, made one motion and entered a guilty plea. That is not enough unless it can be shown that there was a valid reason for such inactivity. Without a hearing the attorney has no chance to vindicate himself if he is falsely accused.
It is impossible for me to understand how a defense in a capital murder case would not require investigation, interviews, tests, motions and other actions by the defense counsel. Certainly doing nothing is worth little more than not having counsel at all. To be effective counsel must do more than present another body to the court. A pet rock could do almost as much. An attorney cannot give informed advice without making some sort of investigation.
If a hearing on the petition had been granted, the trial court would have been in a better position to make a more sound determination of the allegations of the petition. A hearing would also have enabled us to make a more informed decision. Had the facts in the petition been determined to be true, then I believe this Court would most likely reach a different result under the second prong of the Strickland test. Under the circumstances of this case, if the allegations of the Rule 37 petition were found to be true, I am of the opinion that the voluntary plea probably would not have been entered. Therefore, the second prong of Strickland is met.
I would remand to the trial court for a determination of the facts concerning the efforts of defense counsel in this case.