¶1dissenting.
¶2I must dissent from the majority opinion in this cause wherein it provides that the petitioner carried his burden, in a P.C. 1 action, of proving that he had been denied the effective assistance of counsel by showing a single incident in which the attorney exercised his judgment for strategic and tactical reasons. The fact that the trial attorney did not know of the holding in Estelle v. Williams, (1976) 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126, does not necessarily indicate that he was ineffective in his representation of this defendant in the entire cause. It is apparent that neither counsel nor the defendant considered this an important matter in the trial. The attorney claimed he thought it might be better to have the appearance of the defendant be one of “basic, middle-class America,” but he didn’t push the issue in court. He now says he would have objected if he felt the court would have granted it, but he did not want to highlight the matter and call the jury’s attention to the clothing if the court refused to grant the motion.
¶3We must note one thing concerning Estelle v. Williams, supra.The Supreme Court did not reverse the conviction of Harry Williams because counsel failed to object at trial to the fact that defendant was in jail clothing. Neither did the Supreme Court say that it is reversible error per se every time a defendant appears in jail clothing. The majority opinion recognized this when it said, “We do not hold that every time a defendant appears at trial in jail garb and his attorney fails to object that defendant has been denied the effective assistance of counsel.”
¶4Yet, the majority would have us reverse this cause solely on the ground that the attorney did not appear to know that he had grounds to object to the clothing, and to know that his objection would have been sustained. This does not lead us unerringly to the conclusion that, this jury was prejudiced by the fact that defendant appeared in jail clothes and that counsel was ineffective in the representation of defendant in the entire case to the extent that the trial was a mockery of justice. The defendant’s clothing obviously was a matter trial counsel considered relatively insignificant in the total strategy of-the cause as he handled it in that manner and treats it in that manner at the present time.
¶5In this particular P.C. action we are not able to review the evidence in the entire cause nor the conduct of this attorney in the entire cause. Therefore, based on this isolated incident, we cannot find that justice requires a new trial for the defendant. The defendant has the burden to show that he is entitled to relief under his P.C. motion. However, we have no grounds to find that counsel’s representation for all the rest of the trial was anything less than competent, since petitioner shows us nothing else. Furthermore, we must assume, since petitioner has not shown us otherwise, that there was sufficient evidence for the jury to find the defendant guilty beyond a reasonable doubt, rather that it was influenced by the prison garb. On the contrary, the majority implies that, because counsel made this one mistake in his interpretation of the law as it applied to the strategy he would use in this incident, we can therefore assume he was completely without competence and acted in a similar manner in the entire trial. There is absolutely no basis for making such a finding. The trial court should be affirmed in this matter.