dissenting.
I respectfully dissent. Appellant has been convicted of heinous offenses but this does not deprive him of equal protection of the laws. He has an IQ of 70, and has been characterized as mildly retarded. Two psychiatrists have examined him and filed reports. Though they found him competent to stand trial they placed his intelligence in the borderline category, and felt that he was approaching schizophrenia.
Dr. Schremly reported that though he was “probably competent to stand trial at this time ... it is this examiner’s judgment that at best this would be a marginal ability and testing for competency to stand trial is not intended to be predictive in nature nor is there attached a temporal stability, that is, the patient could change for better or worse in a short period of time.”
Appellant’s counsel informed the court that she had been unable to communicate with him throughout the proceedings and she did not believe that he knew what was going on. Even the Commonwealth Attorney did not believe appellant competent to be sentenced and requested another evaluation, which was denied.
It appears that the sentencing procedure was quite brief, consuming only forty seconds. Even during this brief period the court had difficulty communicating with appellant, but nevertheless accepted his waiver of jury trial. The waiver was not in writing, was not approved by the court, and did not have the consent of the Commonwealth, as is required by RCr 9.26(1).
The majority has characterized the failure to conduct another competency proceeding as the principle issue. I disagree. RCr 9.26(1) is purely a practice and procedural rule of this Court. The people of this Commonwealth on January 1, 1976 by its judicial amendment, and specifically § 116, gave this Court the power to enact that rule. That being the case, it is binding upon all of us. We cannot ignore the laws and expect the public to obey them. This is especially true of the law enacted by this Court.
*49The Commonwealth argues that the defendant clearly waived his right to jury trial. In view of the circumstances I seriously doubt their assertion, but be that as it may, the rules specifically require that the waiver be in writing and concurred in by all three parties — the accused, the court and the Commonwealth. None of these features are present here.
Furthermore, under the circumstances and particularly in view of the request of the Commonwealth Attorney, I think the court erred in failing to conduct another competency hearing prior to trial.
For these reasons, I would reverse and remand for a new trial.