dissenting:
I would affirm the circuit court’s order granting a new sentencing proceeding.
*193For the reasons set forth in my concurring and dissenting opinion in Thomas v. State, 301 Md. 294, 340-352, 483 A.2d 6, 30-36 (1984), cert. denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 153 (1985), I believe that the record in this case demonstrates that Thomas’s trial counsel’s “consent” to the examination by Dr. Spodak in connection with the sentencing proceeding was invalid. To the extent that the post conviction judge found that the defendant’s trial counsel was not misled in giving his consent to the examination, such finding is clearly erroneous in light of the record. Because trial counsel’s consent was invalid, the admission of Dr. Spodak’s testimony at the sentencing hearing violated Thomas’s constitutional right to the assistance of counsel under the Supreme Court’s holding in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981).
Assuming, however, that trial counsel’s consent to the Dr. Spodak examination was not invalid, I agree with Judge Bell that trial counsel’s performance was ineffective and prejudicial. For the reasons delineated in Judge Bell’s dissenting opinion, with which I concur, Thomas was denied the effective assistance of counsel guaranteed by the Sixth Amendment and Article 21 of the Maryland Declaration of Rights.