concur in results.
I concur in the Court’s opinion on each of the allegations of error, especially as we continue to apply the doctrine of res judica-ta and waiver to the repetitive appeals in cases of this type. However, I cannot agree to the Court’s adoption of ABA Criminal Justice Mental Health Standards in disregard of Oklahoma Statutes on the issue of competency during appeal.
This Court should first review the Oklahoma Statutes to determine if a procedure exists to address this issue at the present stage of the proceedings. The Determination of Competency-Procedure is codified at 22 O.S.1981, § 1175.1 et seq. The scope of the procedure is determined by referring to the definition of “criminal proceeding” in Section 1175.1(3):
3. “Criminal proceeding” means every stage of a criminal prosecution after arrest and before judgment, including, but not limited to, interrogation, line up, preliminary hearing, motion dockets, discovery, pretrial hearings and trial; (emphasis added)
Therefore, the determination of present competency is not available under our statutes for persons who have been convicted and have appeals of that conviction pending. This statutory procedure, while it conforms to the provisions of Standard 7-5.4 cited by the Court, is the independent State basis upon which this issue should be decided. In addition, the provisions of 22 O.S. 1981, §§ 1005-1008, provide the procedure for determining sanity of a defendant under judgment of death prior to execution. However, that is not the issue presented to this Court and any comment on its application is premature. The Court should also refrain from compounding the problems in practice and application of the law by attempting to merge the concept of present competency with that of sanity.
As the Court correctly relates, neither this Court, nor the United States Supreme Court, has ruled that a defendant must possess a certain level of competence during the course of a direct appeal or subsequent post-conviction proceedings. The issue of present competency during the appeals process has only been addressed in *1279the post-conviction stage when a question arises about the petitioner’s mental fitness to withdraw an application for post-conviction relief. See, e.g. Hammett v. Texas, 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086 (1980). No caselaw indicates that a convicted person must possess an ability-to-assist level of competency throughout the appeals process, as suggested by the Court’s cite to the ABA Criminal Justice Mental Health Standards. Only one recent state court decision has dealt with this unique issue. See People v. Owens, 139 I11.2d 351, 151 Ill.Dec. 522, 564 N.E.2d 1184 (1990). However, the resolution of that case was made solely on the application of Illinois statutes, without reference to the ABA Standards. The applicable statutes in Oklahoma are distinctly different. In addition, the 8th Circuit Court of Appeals has considered the ABA Standards and rejected them in determining the level of competency that must exist to execute a defendant. See Rector v. Clark, 923 F.2d 570, 572 (8th Cir.1991), cert. denied, — U.S. -, 111 S.Ct. 2872, 115 L.Ed.2d 1038.
This Order seeks to adopt the procedure set forth in ABA Criminal Justice Mental Health Standard 7-5.4. In this case, the Appellant raises no claim that mental incompetence affected the direct appeal from his conviction. Therefore, he should not be able to raise it now.
Appellant only raises a speculative claim that incompetence might impair his ability to assist his attorneys. He offers some evidence showing that he may be mentally incompetent, but he provides no facts suggesting this ineompetency has adversely affected his ability to obtain post-conviction relief. This Court should not seek to establish a new procedure which is in conflict with existing statutes and the cited authority upon which the Court basis its ruling.
I do not deny the power of this Court to adopt procedures to address viable claims when presented in the proper posture for decision. However, I question both the propriety and basis for the adoption of ABA Standards which are in conflict with Oklahoma Statutory provisions. These procedures do not expedite the resolution of cases before the Court. Instead, they only serve to further compound the quagmire of repetitious appeals to this Court.