specially concurring.
In the ordinary situation it might well be improper to decide the issue of competency of counsel on direct appeal, if there is a likelihood that an appellant could, when given the opportunity in post conviction proceedings, bring up a record supporting claims of inadequate representation. Justice Bakes, concurring in State v. Kraft, 96 Idaho 901, 539 P.2d 254 (1975), cogently set forth the reason why a hearing should ordinarily be required:
The question of competency of counsel is an extremely complex factual determination which, in all but the most unusual cases, requires an evidentiary hearing for determination. See, State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975). The resolution of those factual issues for the first time upon appeal, based upon a trial record in which competency of counsel was not at issue, is at best conjectural. Id. at 906, 539 P.2d at 259.
If, on appeal, counsel prematurely raises the competency of counsel issue, and gains an adverse determination in this Court, he may very well subject himself to like charges of incompetency — keeping in mind the threat of res judicata should the client later seek to have his claim of incompetence of trial counsel heard at a post conviction proceeding. On the other hand, there is an equal threat of later being told that competency of counsel should have been raised on direct appeal whenever appeal counsel is other than trial counsel. In calling for a reservation of the competency issue until a post-conviction hearing, Justice Bakes so far presents the better approach, both for adjudication by this Court and for guidance to counsel faced with the dilemma outlined above.
In this case nothing has been presented to this Court even tending to raise a factual issue as to the competence of trial counsel. For my part, I consider it so improvidently raised, that it would be better to consider it as not having been raised at all. The Court’s opinion is bottomed on a record which leaves no doubt but that trial counsel had, so to speak, an incompetent client, a man who would not take the advice of counsel. The overall flavor of the record is that defendant entertained an extreme and *882compelling fear that the jury would, as he stated, convict him of first degree murder. Mr. Ruth, under the trial court’s extremely careful examination, also stated:
MR. RUTH: ... It was just — I wouldn’t know how to state it. But, if I fight first degree, I’m going to get it, you know. And if I do this, I might have a chance of getting out within five, you know, five or ten years. So, I decided I wouldn’t have a chance against a jury.
MR. RUTH: Your Honor, I just do not believe that a jury would even listen to the defense that I — of what I would get up and say. There was too many statements in my preliminary that would be incriminating right there the fact that I did say — the witnesses said that I said, that I’m going to get a gun and shoot you and right there as far as I’m concerned is incriminating enough for me.
MR. RUTH: But this is not what made me change my mind on second degree. The reason is strictly because the jury, the fact that I get convicted that I’m going to hang, you know, and I don’t think anybody, you know, exactly wants to face something like that.
Highly significant, in my view of the case, in light of the claim of incompetency, is one certain portion of the defense counsel’s remarks as set forth in the Court’s opinion, to-wit: “I told Mr. Ruth that I had planned to file certain preliminary motions prior to the trial based on my knowledge of the law in the State of Idaho.” The opinion does not reflect that the plea bargain which cut off defense counsel’s motions was initiated by defendant who acted in circumvention of his counsel. Undoubtedly one such motion defense counsel intended making was to challenge the lay magistrate’s1 decision to bind over for first degree murder. A successful motion under I.C. § 19-815A would have erased defendant’s fear of going to the gallows, which overwhelmed him to the extent that he obviously was not the one to be making any decisions. Clearly, both the trial court and defense counsel did each his utmost to forestall the defendant in his pursuit of a bargain plea which he might later rue.
. The practice of putting lay magistrates into the awesome responsibility of examining magistrates does not meet with any approval on my part. If prosecutors can now pressure attorney magistrates to bind over as charged, or face up to the threat that the prosecutor can ex parte obtain a complete dismissal of a magistrate’s commitment order, it is logical to assume that a lay magistrate called to duty as an examining magistrate will be even more susceptible to such pressures. See, Stockwell v. State, 573 P.2d 116 (Idaho, filed Dec. 2, 1977), and Rufener v. Shaud, 573 P.2d 142 (Idaho, filed Dec. 2, 1977), rehearing denied.