(specially concurring).
I do not wish to be obdurate to such an innocent pleasure as sleep, but I stoutly maintain it should be confined to the bedroom and not the courtroom when an attorney is charged with protecting the constitutional rights of his client. It is written: “Sleep, the brother of death.” [Hesiod: *467Theogony (8th Century B.C.)]. William Shakespeare, in Macbeth II. iii, described it as “downy sleep, death’s counterfeit.” So sleep has been characterized as akin to death, at least temporary death, for centuries. It is another world. And it doesn’t belong in the courtroom.
Counsel involved in these plea bargain proceedings in 1982 claims, under oath, at a post-conviction hearing in August 1983, that he must have fallen asleep during the proceedings and that he just let the statement of the plea bargain go in, that he should not have and this was pretty sloppy attorney work on his part. Were I to disregard the findings of the trial court and leap on his words as a verity, I would have little trouble in arriving at a conclusion that Halverson had ineffective assistance of counsel. At this tender moment during a criminal proceeding (plea bargain proceedings), an attorney who is asleep in the courtroom could not possibly render effective assistance of counsel. Thus, should any case be reviewed by this author wherein such a fact is patently clear, I would not hesitate for a moment to reverse the conviction. Reference is made hereby to my special writing in State v. Tiger, 365 N.W.2d 855, 858 (S.D.1985), wherein I applied the facts of that case to Strickland, which is now cited in the majority opinion. It is not professional competency to be asleep during expressions of a plea bargain on the record. This would not be “the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” High Elk v. State, 344 N.W.2d 497, 500 (S.D.1984) (quoting United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976)).
The author of the majority opinion has carefully set forth the various colloquies which are pertinent to not only Attorney Trygstad’s understanding of the plea bargain but also that of Halverson, the defendant.
Well it might be that defense counsel Trygstad testified in a post-conviction hearing that he must have fallen asleep and that he just let the statement of the plea bargain go in; however, the record, at the time of spreading the plea bargain upon it, rebuts Attorney Trygstad’s statements at the post-conviction hearing. When the trial judge made the statement, in open court, in the form of a question, that the sentence “will be up to a maximum of ten years with counsel at the time of sentencing to make their argument and recommendations as to sentencing,” Attorney Trygstad clearly answered “yes.” He was not asleep then. His testimony at the post-conviction hearing is confounding. Therefore, under the state of the record, the “sleep/ineffeetive assistance of counsel” defense, advocated by appellate counsel, is not supported in fact. Defense counsel’s statements at the post-conviction relief hearing are highly questionable.
Findings of Fact and Conclusions of Law denying post-conviction relief were entered on February 3, 1984. As we have held in the past, the burden of establishing a base for post-conviction relief rests upon the Petitioner. This case was grounded on the preexisting post-conviction provisions of SDCL ch. 23A-34. The scope of review of that now-extinct chapter is this:
Our standard of review in post-conviction proceedings is to hold that the findings of fact, conclusions of law, and order of the court hearing the petition are dispositive unless clearly erroneous. (Emphasis supplied.)
Honomichl v. State, 333 N.W.2d 797, 799 (S.D.1983). Halverson, even with the asleep-at-the-switch defense, has failed to meet his burden of proof in establishing that the Findings of Fact and Conclusions of Law are clearly erroneous. Therefore, I concur in the majority opinion.