I join in the majority’s thorough opinion regarding the issue of Matheney’s competence to stand trial. I write separately only because I would reverse the district court on the sentencing issue as well because Matheney’s trial attorney failed to present critical mitigating evidence at the sentencing hearing.
A defendant’s mental disease or defect is relevant both to an insanity defense and to the death penalty determination, but the standards are different in those two contexts. The insanity defense does not apply if a defendant is able to appreciate the wrongfulness of his conduct, even if the defendant is unable to conform his conduct to the requirements of the law. Matheney v. State, 688 N.E.2d 883, 898 (Ind.1997), citing Ind.Code § 35-41-3-6 (West 1986). In contrast, it is a mitigating factor at sentencing .that a defendant was unable to conform his conduct to the requirements of the law. Id., citing Ind.Code § 35-50-2-9(c)(6) (West Supp.1996). Therefore, a jury’s rejection of the insanity defense at trial does not preclude the application of that mitigating factor at sentencing.
Matheney’s counsel chose to argue that mitigating factor at the sentencing hearing, but failed to produce the critical evidence supporting it. Matheney’s counsel argued that, even if Matheney was not able to prove insanity because he could distinguish right from wrong, he nevertheless could establish the presence of the mitigating factor because he was unable to conform his conduct to the requirements of the law. As the majority recognizes, Matheney’s counsel did not make a tactical decision to forego that mitigating factor in favor of others, but affirmatively argued that factor. His counsel failed, however, to introduce any psychiatric testimony establishing that Matheney was unable to conform his conduct to the requirements of the law. At a hearing on Matheney’s petition for post-conviction relief, Dr. Morrison testified that Matheney understood that his conduct was wrongful, but that his actions at the time of the murder were defined by the delusions he experienced, rendering him incapable of conforming his behavior to the requirements of the law. In other words, her testimony would have been consistent with the jury verdict rejecting the insanity defense, but would have established the mitigating factor based on his mental illness. Matheney’s counsel failed to present that testimony— or any testimony — to support the argument that the mitigating factor was met. That failure may be explained by Dr. Morrison’s testimony that defense counsel spent only one hour with her preparing her for the deposition, and no time subsequent to that preparing her to testify at trial. Defense counsel never even described the standards for insanity or the mitigating factors under Indiana law, and *1050never asked her at trial or sentencing the critical questions of whether Matheney could appreciate the wrongfulness of his conduct and conform his conduct to the requirements of the law. That lack of preparation by trial counsel is telling given that Matheney’s defense was insanity, Dr. Morrison was the key psychiatric witness, and the strongest factor mitigating against the death penalty was his mental illness.
Because Matheney’s counsel failed to present Dr. Morrison’s testimony at sentencing, and failed to elicit that critical testimony at trial which then could have been considered by the jury at sentencing, the jury had no basis upon which to accept the defense argument in mitigation. Where the defense counsel argues a mitigating factor but fails to present any evidence whatsoever to establish that factor even though such evidence is readily available, we cannot excuse that conduct as a tactical decision. We cannot assume that the jury’s rejection of the insanity defense would have doomed a defense argument at sentencing based on mental illness,- given that the standards were different and Dr. Morrison’s testimony would have been consistent with the jury’s verdict. See, e.g., Eddmonds v. Peters, 93 F.3d 1307, 1325 (7th Cir.1996) (Flaum, J., and Rovner, J., concurring) (“A determination of sanity [ ] cannot be a sufficient reason to forego inquiry into psychological problems for mitigation purposes.”) citing Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir.1988), and Loyd v. Whitley, 977 F.2d 149, 156-57 (5th Cir.1992).
The failure to present Dr. Morrison’s testimony was prejudicial because it was by far the strongest mitigation evidence Matheney possessed. Dr. Morrison’s testimony would have provided a perspective on Matheney that integrated the evidence of mental disease and defect provided at trial but harmonized with the jury’s rejection of the insanity defense. Absent that testimony, the jury had no reason to distinguish the insanity defense from the mitigating factor. Therefore, the testimony by Dr. Morrison was pivotal to the strongest mitigating factor available to Mathe-ney. His defense counsel chose to argue for that mitigating factor, but never presented the psychiatric testimony that would provide the necessary foundation for it.
Moreover, although Drs. Batacan and Berkson did not appear to agree with Dr. Morrison’s analysis, defense counsel had many avenues available to either discredit or reconcile their opinions. For instance, Dr. Batacan testified that in order for a condition to constitute a “mental disease or defect” by the legal definition, it must include hallucinations. In fact, he stated that even if a person experienced delusions, depression, or other symptoms, “in the absence of hallucination, there is no mental disease.” Tr. at 1539-40. Because there was no evidence that Matheney experienced hallucinations, Dr. Batacan concluded that he did not possess a mental disease or defect. Even Dr. Berkson agreed that Dr. Batacan’s interpretation of mental disease or defect was wrong. Given Dr. Batacan’s fundamental, and rather stunning, misunderstanding of the term “mental disease or defect,” his opinion was incorrect as a matter of law, and thus entitled to no consideration.
Dr. Berkson’s testimony did not suffer from a similar fundamental error, but it was not without its limits. In both his written report and his trial testimony, Dr. Berkson concluded that Matheney “did not suffer from a mental disease or defect that would render him incapable of distinguishing right from wrong.” That precluded the insanity defense, but was perfectly consistent with Dr. Morrison’s opinion. In fact, at the post-conviction deposition, Dr. Berkson stated that his opinion was not *1051inconsistent with Dr. Morrison’s. Dr. Berkson further attested at that deposition that Matheney suffered from a mental disease — paranoid personality — which affected Matheney’s behavior but not his ability to appreciate the wrongfulness of the offense, and thus did not rise to the level of legal insanity. Dr. Berkson’s statements at the post-conviction deposition make clear that if defense counsel had more thoroughly explored his opinion, they could have elicited testimony that would have been helpful at sentencing and that would have been consistent with Dr. Morrison’s opinion. In fact, Dr. Berkson in his written report prior to trial left open the possibility of altering his opinion if provided additional evidence by defense counsel. In that report and at the post-conviction deposition, Dr. Berkson stated that he had called Matheney’s attorneys seeking further information, but had no contact with those attorneys after that time and never received further information from them. Therefore, Dr. Berkson’s opinion, properly developed by defense counsel, would have been consistent with Dr. Morrison’s opinion, and would have significantly impacted the determination by the judge and the jury of whether Matheney suffered from a mental disease or defect. Accordingly, even in light of the opinions of Drs. Bata-can and Berkson, Dr. Morrison’s opinion could have been strong evidence of the mitigating factor.
The existence of a mental disease or defect that rendered him incapable of conforming his conduct to the law would have been a significant mitigating factor, and there is a reasonable probability that it would have altered the jury’s recommendation — particularly because the aggravating factors were not strong here. The two aggravating factors were that the offense was committed (1) by lying in wait and (2) during the course of a burglary. Although the majority devotes much time to discussing the brutality of the crime, a point I do not question and with which I am in agreement, it is not one of the aggravating factors that are available to the jury, and therefore cannot be a part of this analysis. We are limited to considering the two identified aggravating factors.
The lying-in-wait factor was based upon evidence that he approached the home from the rear, and that the timeline established by the prosecution allowed for a conclusion that he waited behind the house before entering. That evidence was weak at best, and a dissenting justice of the Indiana Supreme Court declared that there was no basis to find that factor. Matheney v. State, 583 N.E.2d 1202, 1210 (Ind.1992) (DeBruler, J. dissenting). The burglary factor was premised on Mathe-ney’s actions in breaking through the door and entering the home in search of his wife. Burglary requires a forcible entry with the intent to commit a felony, but there was no intent to commit a separate felony here such as robbery or rape, which would elevate the murder to another level by adding an additional intended felony. Instead, the intent for the burglary was the intent to commit the murder, the same intent necessarily found for the murder charge itself. Therefore, the aggravating factor of the burglary is present here, but is not as compelling in this case as in others, because it did not encompass an intent to commit a separate felony. See id. at 1210 (DeBruler, J. dissenting) (“where the intent of the burglary is the intent to kill, the weight of the aggravator is greatly diminished, for the mind has formed but a single felonious intent.”) Thus, the jury would have been required to balance the evidence that in committing the murder he may have waited in the yard for a short time and then forcibly entered the home, against evidence that his mental illness rendered him incapable of conforming his conduct to the requirements of the law. On those facts, I believe *1052that there is a reasonable probability— that is, one sufficient to undermine confidence in the outcome — that but for the failure to present that mitigating evidence, the result would have been different. See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1513-14, 146 L.Ed.2d 389 (2000). I would therefore conclude that Matheney received ineffective assistance of counsel at sentencing, and would reverse and remand on that issue as well.