dissenting:
The defendant in this case argues that his trial counsel failed to provide proper representation because he did nothing. While we are not triers of fact and cannot predict what effect presentation of the evidence the defendant seeks to introduce at an evidentiary hearing would have had on the jury, I am convinced that this defendant who “challenges a death sentence” has shown that “there is a reasonable probability that, absent the errors, the sentencer *** would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.” (Strickland, v. Washington (1984), 466 U.S. 668, 695, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2069.) This conclusion is based on the trial counsel’s failure to place into evidence the defendant’s psychological problems, his educational shortcomings, his lifestyle and his conduct during incarceration. The pleas of guilty with the encouragement of the defendant’s trial counsel but without any inducement, together with counsel’s very limited efforts during the sentencing hearing when evidence in mitigation was available but not offered, would have required judicial attention, had these matters been argued during the original appeal.
It is unlikely that this defendant can be forever foreclosed from a hearing on whether his trial counsel afforded him adequate representation. Nor should he be foreclosed from such a hearing when his life is at stake. Barred by the conclusions set forth in the majority opinion from contending that his original trial counsel was ineffective, obviously his next line of attack must be that his appellate counsel was ineffective for failing to raise the issue of the ineffectiveness of his predecessor. Determination of this issue will necessitate a collateral inquiry into the quality of the original counsel’s representation at the murder trial. Waiver and res judicata will stretch only so far; in a capital case, they must snap in the face of the contention that a successor counsel was ineffective in failing to argue on appeal the ineffectiveness of his predecessor at trial.
Instead of dismissing this appeal on the ground that the issue it raises could and should have been presented in the earlier appeal and then waiting for another proceeding challenging the performance of his present counsel, I believe that justice requires that the defendant be given a hearing to determine whether he received effective assistance of counsel at his sentencing hearing. Implicit in this conclusion, of course, is the question of whether the defendant received effective assistance of counsel in his previous appeal. Because the answer to this question necessarily hinges on the effectiveness of his original trial counsel, the ultimate inquiry must be into that attorney’s competence. It would be wasteful to treat this problem like an onion that is peeled one layer at a time. Instead, I believe that judicial economy would be best served by cutting directly to the core to determine in an evidentiary hearing whether the defendant’s trial counsel was ineffective. Somewhere along the line before the defendant can be executed, a court will have to decide after an evidentiary hearing whether a trial attorney who did virtually nothing when evidence in mitigation was available, assuming that that is what the evidence will show, was effective in representing a defendant facing a death sentence. I believe that making that determination now is preferable to deferring it to some future proceeding.
At this point it is impossible to forecast the extent to which the defendant’s post-conviction proceeding will turn upon the ineffectiveness of his present counsel because of that attorney’s previous failure to raise the question of the performance of trial counsel or upon the ineffectiveness of trial counsel, in which case present counsel may still be required to explain his failure to raise it at an earlier stage. In either event, it would be illogical and inconsistent with basic concepts of justice to expect the defendant’s present counsel to inquire into or to defend his own effectiveness. For that reason, I would remand this case with directions to the circuit court under our supervisory authority (111. Const. 1970, art. VI, sec. 16) to appoint new counsel to act for the defendant in further proceedings with respect to his claim for post-conviction relief.