(dissenting).
I regret that I must dissent in this matter.
A brief review of the facts is necessary. After defendant’s adjudication of guilt, an appeal was perfected. On 12 April 1974 the petitioner then moved in this court that the public defender’s office, who represented petitioner at trial, be removed because of an alleged conflict. We remanded the question to the Presiding Judge of Pima County for a factual determination as to whether a conflict of interest did exist between appellant and the public defender’s office. After hearing a new counsel was appointed. Thereafter the defendant moved to suspend the appeal in this court for the purpose of filing a petition for post-conviction relief pursuant to Rule 32. This motion was granted on 2 July 1974.
The petition, as amended, alleged a denial of a constitutional right to be represented by competent counsel, specifically alleging:
“1. Petitioner’s counsel did not adequately inform petitioner of the consequences of his plea and the nature of the plea in regard to the possible range of sentence.
“2. Petitioner’s counsel did not assist petitioner in presenting evidence to the Court which could materially affect the sentencing of petitioner.
“3. Petitioner’s attorney in the trial court stated that petitioner would be given a polygraph to determine the relative roles of petitioner and the co-defendant in the homicide. This was of primary materiality to the sentencing; the co-defendant had a gun. Petitioner was never given the polygraph test. Said polygraph was essential to substantiate petitioner in showing that his acts were occasioned by the co-defendant’s threatened use of the pistol.
“4. Petitioner’s counsel did not make clear to him the distinctions between second degree murder and manslaughter.”
Although there was a response to the original petition, the county attorney filed no pleadings in response to the amended petition and allegations 3 and 4 were not answered. No hearing was held on this petition or these allegations and the petition was summarily denied.
Rule 32.8(a) states:
“a. Plenary Hearing. The petitioner shall be entitled to a hearing to determine issues of material fact, with the right to be present and to subpoena witnesses in his behalf. * * * A verbatim record of the hearing shall be made.” (Emphasis supplied)
This gives the petitioner a right to be heard on this petition, a record made for this court and the federal court, and by Rule 32.8(d) the court is then required to make a finding of fact.
The purpose of post-conviction relief rules 'and statutes such as Rule 32 of the Rules of Criminal Procedure 1973 is to provide not only a procedure whereby a defendant may be heard and receive relief as demanded by state and federal law, but also to provide a record whereby the appellate courts of this state or the federal courts may determine whether the facts do or do not support petitioner’s claim for relief. Our Court of Appeals has stated:
“In our opinion Rule 32 has as its aim the establishment of proceedings to determine the facts underlying a defend*11ant’s claim for relief when such facts are not otherwise available. The comments to Rule 32.2 make this clear when they discuss the availability of federal review of state criminal proceedings:
‘The federal courts will indulge in only limited review of state court rulings on claims of deprivation of federally protected constitutional rights when those claims have been resolved on the merits after an adequate fact-finding inquiry.’ (Emphasis added).
“When Rule 32.2 is viewed with this aim in mind, we are of the opinion that the preclusion of post-conviction relief under this rule on the ground that the matter is still raisable on direct appeal applies only to those matters in which a sufficient factual basis exists in the record for the appellate court to resolve the matter.” State v. Bell, 23 Ariz.App. 169, 531 P.2d 545, 547 (1975).
Although post-conviction statutes and rules vary from state to state, the general rule is:
“Our post-conviction statute requires that a petition invoking its provisions contain factual allegations which make a substantial showing that in the criminal trial there was a deprivation of constitutional rights, (citation omitted) Mere conclusional allegations are wholly inadequate. (citation omitted) Before a post-conviction petitioner is entitled to an evidentiary hearing, he must, in his petition plead factual allegations which, if true, show that constitutional rights were violated, (citation omitted) If he does not, his petition may be dismissed without a hearing, (citations omitted) And in deciding whether he is entitled to an evidentiary hearing, the trial court may look at and examine the record and transcript in order to determine the sufficiency of the post-conviction petition, (citations omitted).” People v. Barkan, 30 Ill.App.3d 305, 332 N.E.2d 527, 530 (1975). (Footnote omitted)
But courts have also been careful to allow a hearing where there is a showing that the petitioner is entitled to an inquiry by the trial court on the statements made in his petition:
“We disagree with the trial court’s finding that appellant’s post-conviction petition is nonmeritorious. Our concern on review is whether the appellant has alleged sufficient facts, borne out by the record and transcript of the conviction hearing, to require an evidentiary hearing on appellant’s post-conviction petition in accordance with section 122-6. To determine this, we must look to the allegations contained in the post-conviction petition, construed liberally in favor of the appellant, and as set forth in light of the record and transcript of the conviction proceeding now before us. The function of pleadings under the Post-Conviction Hearing Act is to determine whether the petitioner is entitled to a hearing; it is not the intention or purpose of the Post-Conviction Hearing Act that constitutional claims be adjudicated on the pleadings, (citation omitted).” People v. Wise, 26 Ill.App.3d 158, 160, 331 N.E.2d 302, 304 (1975).
And the Pennsylvania court has pointed out that a factual determination is even more important where we are concerned with adequate representation of counsel:
“Section 1180-9 of the Act provides that ‘If a petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner.’ (citations omitted) Our Court has interpreted § 1180-9 as requiring that ‘petitioners under the Act be given every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.’ (citation omitted) *12Further, when the issue involved is the effectiveness of counsel, a hearing must ordinarily he held to resolve the question. (citation omitted)” Commonwealth v. Johnson, 231 Pa.Super. 30, 33, 331 A.2d 750, 751 (1974).
I believe that any doubt whether to hold a hearing pursuant to Rule 32.8(a) or to summarily dispose of the matter pursuant to Rule 32.6(c) should be resolved in favor of a hearing in order that an early record can be made.
In the instant case, the allegations made by the petitioner indicate colorable claims and he should have been allowed a hearing upon his allegations.
Although I am not persuaded that petitioner will necessarily prevail on the merits, I am satisfied that he has set forth sufficient allegations to entitle him to a hearing and to findings of fact by the trial court based upon the record as well as any evidence adduced at a hearing on the petition.