dissenting.
I respectfully dissent to the majority opinion's remanding of this case to the trial court for resentencing.
The majority takes the position that trial counsel was ineffective because at the sentencing hearing he made no effort to bring forth "mitigating circumstances." - The only hint of a possibility of mitigating circumstances in this case we find in the statement of the post-conviction court wherein it observed that "there were a number of witnesses who might have testified during the penalty phase of the trial concerning petitioner's upbringing, his family, his education, his artistic talent, and other life activities." These general statements alone hardly are sufficient to support a finding that trial counsel was ineffective for failing to dwell on these so-called mitigating circumstances.
Given the gravity of this crime and the overwhelming evidence against appellant, it hardly could be perceived that had evidence been presented that he had served in the Peace Corps and taught Sunday school that his sentence should be mitigated.
A fabric of reversible error which the majority opinion seeks to weave reminds one of the story we heard in childhood of the king and his fine clothing. Like the king in the story, the majority opinion marches naked into the trial court for a rehearing. I cannot justify impinging the trial court with a fourth rehandling of this case.
The trial court should be affirmed.