(dissenting).
Because I am unable to agree with the determination made by the majority in division II of this opinion and by reason of the result flowing therefrom I dissent.
In division I, with which I agree, the question considered is whether a defendant’s attorney may, without defendant’s consent, appeal defendant’s conviction where defendant’s sanity and competency to stand trial were at issue in a competency trial and where his sanity was at issue in the trial on the merits of the charges filed against him.
The majority, after quoting EC 7-12, Code of Professional Responsibility, conclude, “We believe the facts shown in the instant case amount to a disability of a client and lack of a legal representative under EC 7-12 which rendered it imperative for defendant’s counsel to make the appeal decision for defendant.”
In my view, the issue presented for review in division II of the opinion is whether section 783.2, The Code, 1973, denies a defendant due process of law and related rights in violation of Article I, sections 9 and 10, of the Iowa Constitution because it places the burden on the defendant to prove by a preponderance of the evidence his insanity and incompetency to stand trial.
There is thus presented the following factual situation: (1) the majority in division I decide defendant’s mental disability which *321renders him incapable of making a considered decision on his own behalf makes it imperative for defendant’s counsel to make the decision whether to appeal for defendant and (2) at the same time the majority decide in division II that placing the burden on such a defendant to prove his own incompetency to stand trial does not deny defendant due process.
In other words, the majority conclude defendant is in fact unable to cooperate with counsel and decide in a rational manner whether to appeal and in the next breath hold section 783.2, The Code, 1973, does not offend defendant’s right to due process.
In my opinion it would be a strange rule, indeed, to impose upon him the burden of proving his own incompetence, for the very disability which he would be seeking to prove renders him incapable, either logically or legally, of sustaining the burden of proof. In support see People v. Bender, 20 Ill.2d 45, 169 N.E.2d 328, 332. Nevertheless, this is the very thing the majority did in division II.
Counsel contends section 783.2 is unconstitutional because it places upon defendant the burden of proving his insanity and incompetency to stand trial and thus deprives him of due process.
Article I, section 9, of the Iowa Constitution, relied on by counsel provides:
“The right of trial by jury shall remain inviolate; but the General Assembly may authorize trial by a jury of a less number than twelve men in inferior courts; but no person shall be deprived of life, liberty, or property, without due process of law.”
In section 10 of this Article it is stated:
“In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.”
Counsel bases the foregoing contention on our holding in State v. Thomas, 219 N.W.2d 3, 5 (Iowa 1974), where the court stated:
“Upon careful reconsideration of the merits of this question, we conclude [on the basis of common law] that the burden should be on the State to prove the defendant’s sanity beyond a reasonable doubt, for the reasons stated by the United States Supreme Court in Davis v. United States [160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499], supra. We think the State must not only establish the elements of the crime but, when the defendant’s capacity to commit the crime at all is drawn into question and substantial evidence appears in the record raising a fact issue under the M’Naghten test, the State must also establish the defendant’s sanity. * * *." (Emphasis in original).
It is well settled in this state by the foregoing pronouncement in Thomas that whenever substantial evidence is introduced raising a fact issue under the M’Naghten test as to the accused’s capacity to commit the act charged as a crime the burden devolves upon the state to prove beyond a reasonable doubt that at the time of the commission of the act the accused was sane.
On the other hand, whenever there is a record tending to raise a reasonable doubt at any stage in a criminal prosecution as to the accused’s sanity so as to necessitate a jury trial on that question, section 783.2 places the burden on defendant of establishing by a preponderance of the evidence a bona fide doubt as to his mental capacity to understand the nature of the charge against him and to cooperate with his counsel and conduct his defense in a rational and reasonable manner.
There appears no logical reason why the burden of proof should shift to the defendant in a pretrial sanity hearing.
Sections 783.1 and 783.2 provide for a trial on the question whether the accused is insane at the time of the hearing. The sanity hearing which is thus prescribed is no empty formality, but is designed to p»*322serve the constitutional right of a defendant not to be placed on trial while he is insane.
A person charged with crime may not be tried while he is insane and if an insane person is placed on trial it is a violation of due process of law.
In support of this principle see State v. Hamilton, 247 Iowa 768, 772-773, 76 N.W.2d 184, 186, where the court said:
“ * * * It is the universal rule, as old as the common law, that an accused cannot be tried while insane, for the obvious reason that his insanity may render him incapable of making a rational defense. Section 783.-1, Code of 1954, I.C.A., which has been in our codes since 1850, Sections 3260 and 3261, in substantially the same words, merely makes the common law the statutory law of this State and sets out under what conditions the question of a defendant’s then sanity may become an issue' for a jury.” (Emphasis in original).
It is, therefore, of great importance that a hearing under section 783.2 should be free from prejudicial error and that the hearing proceed in accordance with proper rules of evidence and that the jury be properly instructed as to the law. People v. Bender, 20 Ill.2d at 48-49, 169 N.E.2d at 330; People v. Garlick, 46 Ill.App.3d 216, 4 Ill.Dec. 746, 748-749, 360 N.E.2d 1121, 1123-1124; People v. McCullum, 66 Ill.2d 306, 5 Ill.Dec. 836, 839-840, 362 N.E.2d 307, 310-311.
In attempting to prove present incompetency, the defendant may be suffering from the very disability he must prove. Because of that, his inability to prove his incompe-teney will increase in direct proportion to his actual incompetency.
The majority say that “in considering the due process challenge we see no appreciable difference between a statute treating mental illness at the time of the alleged offense and the instant statute, which treats mental illness as it relates to ability to stand trial.”
In my opinion, a real difference exists between the insanity defense and the issue of competency to stand trial. Presumably the defendant relying on an insanity defense is competent at trial time. He is capable of assisting his lawyer produce evidence to establish the defense. The proof relates to a past event rather than a present circumstance. In contrast, as stated, in attempting to prove present incompetency, the accused may be suffering from the very disability he must prove.
As a result of the majority’s failure to see any appreciable difference between the insanity defense and the issue of competency to stand trial we have a decision wherein the court concludes in division I defendant is in fact unable to cooperate with counsel and decide in a rational manner whether to appeal and yet in division II the court places the burden on defendant of establishing by a preponderance of the evidence a bona fide doubt as to his mental capacity to understand the nature of the charge against him and to cooperate with his counsel and conduct his defense in a rational and reasonable manner.
This indeed presents a sad state of affairs where the issue of due process is involved, particularly in light of the fact the legislature did not see fit to retain section 783.2 of the 1973 Code in the Iowa Criminal Code, effective January 1, 1978.
I am aware that in order to show a deprivation of due process by placing the burden of proof on defendant in a hearing to determine his competency to stand trial it is necessary that the placing and carrying of such a burden present a problem of constitutional magnitude.
Since the concept of fitness to stand trial is grounded on the notion that it is fundamental to an adversary system of justice, Drope v. Missouri, 420 U.S. 162, 171-172, 95 S.Ct. 896, 903-904, 43 L.Ed.2d 103, 113, it is my view fundamental fairness dictates that where a defendant has raised a bona fide doubt as to his fitness to stand trial, the state, as a matter of due process, should bear the burden of persuasion on the question of defendant’s fitness to stand trial.
In the present case defendant attacks the statute both on its face and as applied. I think it is unconstitutional in both aspects. *323This defendant’s disorder manifests itself in a desire to be incarcerated. The peculiar facts of the case, his background and the psychiatric testimony show this. We are so persuaded of the difficulty of the issue that we permit his lawyer to pursue this appeal without his consent. Under this record it appears he was not only incapable of assisting in his defense, according to the evidence his lawyer obtained from others, but he actively opposed the effort to show his incompetency. In these circumstances his lawyer had both hands tied behind his back. He not only had a client he believed to be incompetent, but the principal manifestation of incompetency was the client’s active opposition and refusal to cooperate in meeting his statutory burden to prove his incompetency. This certainly warrants our holding the statute is unconstitutional as applied here.
I would hold that where the record discloses a defendant has appeared in any stage of a criminal prosecution and a reasonable doubt has arisen as to his sanity so as to necessitate a trial on that question, the state shall have the burden of persuasion, that is proof beyond a reasonable doubt, on the issue of an accused’s mental capacity to stand trial.
The majority rely on Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 and Rivera v. Delaware, 429 U.S. 877, 97 S.Ct. 226, 50 L.Ed.2d 160. Both cases concern a situation where the accused’s insanity is urged as a defense to defendant’s criminal responsibility. Neither deals with the problem presented in the case presently before us and I am not persuaded that the logic of Leland requires the result reached by the majority here. In any event, we are not proscribed from imposing higher standards when deciding issues under our state constitution than required by the federal constitution.
RAWLINGS and McCORMICK, JJ., join in this dissent.