(concurring) — I fully agree with the majority that we should deny Cal C. Brown’s personal restraint petition. I write separately because I feel compelled to respond to the dissent’s contention that Brown was unduly prejudiced during the penalty phase of the trial by the trial court’s admission of evidence of Brown’s convictions in California for various crimes that occurred after the murder that led to the imposition of the death penalty here, but prior to the trial for that murder. Although Brown’s counsel objected at trial to the introduction of this evidence, the issue was not raised on direct appeal. The dissent *464concludes, therefore, that his appellate counsel’s failure to seek reversal of the conviction on that basis constituted ineffective counsel and grounds for relief.
When evaluating a claim of ineffective counsel we require a showing that (1) counsel was deficient; and (2) there is a reasonable probability that but for the deficiency the outcome of the proceeding would be different. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). The petitioner bears the burden of proof on both. As indicated by the majority, however, a claim of ineffective counsel fails when there is no merit to the underlying legal issue appellate counsel failed to raise on appeal.
Even, if we assume, as the dissent asserts, that Brown’s counsel was deficient in failing “to fight for its suppression on appeal,” it does not follow that the petition should be granted. Dissent at 465. In my view, the admission of evidence during the penalty phase of the trial regarding the fact of the California convictions could not have had any significant influence on the jury’s decision to impose the penalty of death. I say that because evidence regarding the circumstances that led to Brown’s California convictions was introduced during the guilt phase of the trial.90 Thus, it is a stretch to say that Brown was prejudiced during the penalty phase of the trial by the introduction of evidence that he was convicted of crimes that had already been described to the jury in great detail.
Accordingly, I concur.
Madsen, J., concurs with Alexander, C.J.
Although I signed the dissenting opinion in State v. Brown, 132 Wn.2d 529, 940 P.2d 546 (1997), agreeing with the writer of that opinion that testimony of the California convictions should not have been admitted into evidence, the majority concluded otherwise and that is now the law of the case.