(dissenting):
I respectfully dissent.
In my opinion, the case should be remanded for a new trial. On its face, the record discloses that at trial defense counsel was unaware of a very fundamental matter in this case — the aiding and abetting statute on which an instruction was given. His comments both in opening statements to the jury as well as to the District Judge later in the proceedings manifest an apparent belief on his part that because the defendant did not “break and enter” the burglarized premises or did not enter at all, he enjoyed a valid defense to the crime of burglary, notwithstanding the aiding and abetting statute and instruction. Such a misconception constitutes prejudicial error, in my opinion, because counsel geared the trying of this matter to that erroneous belief. I fail to see under any reasonable view of the record that this misconception can be deemed to constitute trial strategy by defendant’s trial counsel.
Also, though the issue was not raised, nor is it critical to my dissent, I believe we should, when appropriate, consider clearly abandoning the standard heretofore adopted, at times, by this Court, ineffective assistance claims, which requires that a defendant in a criminal case can succeed only if his attorney’s lack of diligence or competence reduced his trial to a “farce or sham,”1 or, its legal synonym, used by other courts, a “mockery of justice”.2
According to Chief Judge Bazelon of the U.S. Court of Appeals for the D.C. Circuit, this standard “requires such a minimal level of performance from counsel that it is itself a mockery of the Sixth Amendment.” Ba-zelon, The Defective Assistance of Counsel, 42 U.Cin.L.Rev. 1,28 (1973).3 This standard equally offends, I submit, Art. 1, Sec. 12, Constitution of Utah.
STEWART, J., concurs in the views expressed in the dissenting opinion of WILKINS, J.. See, e. g., State v. Pierren, Utah, 583 P.2d 69 (1978), State v. McNicol, Utah, 554 P.2d 203 (1978) (and cases cited therein). I acknowledge this Court in the past, on occasion, has adopted language of “competence of counsel” as well as “farce or sham”.
. See, e. g., Bell v. Alabama, 367 F.2d 243 (5th Cir. 1966); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965); People v. Washington, 41 Ill.2d 16, 241 N.E.2d 425 (1968).
. Also see Finer, Ineffective Assistance of Counsel, 58 Cornell L.Rev. 1077 (1973) and People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979), where the California Supreme Court recently adopted the reasonable competence of counsel standard.