(dissenting)—Appellant claims he is entitled to a new trial because his trial counsel was incompetent in not advancing the defense theory of entrapment. Heretofore, the question of lawyer incompetence has been considered either by a review of the entire record on appeal, State v. Robinson, 75 Wn.2d 230, 450 P.2d 180 (1969); State v. Piche, 71 Wn.2d 583, 430 P.2d 522 (1967), or in a habeas corpus proceeding. Buckingham v. Cranor, 45 Wn.2d 116, 273 P.2d 494 (1954). See State v. Humburgs, 3 Wn. App. 31, 472 P.2d 416 (1970). In the present case, the entire record cannot be reviewed because the argument of counsel, which might very well show his brilliance rather than incompetence, is missing. Habeas corpus, of course, is an original proceeding not available to appellant within the framework of this appeal.
The majority proposes that the claim of appellant, made for the first time on appeal, that his counsel erred in not pressing a particular defense, is to be resolved by the trial court at a factual hearing called for that purpose. There is a strong presumption that counsel was competent, State v. Piche, supra; and, I am sure, an even stronger presumption that the trial court was not only competent, but did its very best to insure appellant a fair trial. It seems to me that it is inappropriate now to ask the same judge to hear testimony and rule upon the performance of counsel as well as upon his own conduct of the trial.
Moreover, the implications of such a procedure are ominous. In every criminal appeal in which the appellant advances the claim of ineffective counsel for whatever reason, the case will be sent back for a factual hearing unless disposition of the claim can be resolved from the record. *293Thus, one more device will be added to the already formidable number currently employed to postpone the day of final determination of a criminal cause. I have been unable to find a precedent for remand of the case for a similar reason in this state or in any other jurisdiction, nor has any such citation been offered by the majority.
Under current practices, a person charged with crime is protected from incompetent counsel by an integrated bar, experienced trial judges, a complete review of the entire record by an appellate court, and in an extraordinary case a full factual hearing in a habeas corpus proceeding. I think that is adequate. The order of remand should not issue.
Petition for rehearing denied October 21,1971.
Appealed to Supreme Court November 1,1971.