¶1dissenting.
¶2Our case law prior to the adoption of Rule 29.15 would allow claims of ineffective assistance of counsel to be presented on appeal from the judgment of conviction if these claims could be disposed of on the record on appeal. An illustrative case is State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985), in which the defendant’s appointed counsel, miffed at the denial of a continuance, simply declined to participate further in the trial. We reversed on initial appeal. *159See also State v. Mitchell, 620 S.W.2d 347 (Mo. banc 1981); State v. Koetting, 691 S.W.2d 328 (Mo.App.1985); State v. Settle, 670 S.W.2d 7 (Mo.App.1984).
¶3In most cases, of course, the claims of ineffectiveness cannot be ruled on the record in the initial appeal. Sometimes trial counsel handles the initial appeal and cannot be expected to argue his or her own ineffectiveness; sometimes the claim requires the presentation of additional evidence. So, in the past, we have often forestalled ruling on claims of ineffectiveness by holding that they were not ripe for presentation on initial appeal and could only be asserted on proceedings under former Rule 27.26.
¶4Rule 29.15, and its companion, Rule 24.-035, serve the salutary purpose of encouraging convicted defendants to present their post-conviction claims in a timely manner. Thus the indefinite time limits of Rule 27.-26 are no longer available. We should have no more cases in which a defendant claiming ineffective assistance on initial appeal is told that he must resort to an available postconviction remedy. In substantially all cases, the time for proceeding under Rule 29.15 will be long gone by the time the initial appeal is decided, and so a defendant who foregoes the procedures of that rule takes a risk of waiver.
¶5But I cannot find a word, phrase or line in Rule 29.15 which says that it was intended to limit the scope of the points which could be presented on direct appeal. I certainly did not perceive any such restriction when I voted in favor of the adoption of that rule. The rule does not mention “ineffective assistance of counsel” at any point. The segment of the rule relied on in the principal opinion relates to claims that “the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States....” Surely the principal opinion does not intend to hold that all state or federal constitutional points touching the propriety of the conviction may only be presented through the medium of Rule 29.15. Does the opinion purport to hold that claims such as unlawful search and seizure, double jeopardy, absence of Miranda warnings, and the like, properly preserved on the record, may not be raised on initial appeal but only under Rule 29.15? Surely not! Then how can there be any preclusion of a sixth amendment claim of ineffective assistance of counsel, if the claim can be determined on the face of the record? I cannot agree that the rule supports the conclusion of the principal opinion with “unmistakable clarity” or that the court of appeals opinion is well reasoned. I submit that the Court must give attention to the point raised, to determine whether the record on appeal provides an adequate basis for decision. The answer in the great majority of cases will undoubtedly be “no,” but the Court must nevertheless reach and rule the point.
¶6There is also a problem of changing the rules in the middle of the game. This defendant might well have understood from the prior case law that his point could be presented on direct appeal, so that a 29.15 proceeding was unnecessary. I cannot find that he was warned, after the trial, that the scope of the direct appeal had been narrowed. To deny consideration of a point previously available smacks of denial of due process.
¶7I write at some length because I am not sure that prosecutors, trial judges and some appellate judges fully understand the problem presented by constitutional claims which are not disposed of on the merits. Our convictions are not final. They have been subject to a panoply of postconviction remedies, in both state and federal courts. The best answer to a belated claim of constitutional infirmity is to show that there has been a full and fair determination of the merits in the state system.
¶8Yet we see the following: (1) disposition of postconviction proceedings on the basis of the pleadings or the trial record, without a hearing; (2) restriction of the right to amend pleadings for postconviction relief; (3) appellate disposition on procedural grounds, sanctioning the failure to rule the merits; and (4) barring, under Rule 29.15, of successive motions which meet the limited specifications to such motions under 27.-26. I applaud the effort of Rules 24.035 *160and 29.15 to limit the time for the institution of postconviction claims, but they were not intended to preclude other procedures which, under past practice, were not barred by failure to resort to 27.26. There should be careful study of these rules in operation to see whether some amendment may be necessary.
¶9If the state courts do not provide a forum for the determination of postconviction claims, the federal courts will, in proceedings under 28 U;S.C. Sec. 2254. The basic responsibility is that of the state. I do not want the courts of another sovereignty to make factual or procedural determinations which should be the responsibility of our courts.
¶10The problem in the present case is not want of hearing but rather denial of review of a claim apparently properly presented on appeal. I believe that this Court should rule the claim. It is the kind of claim which could be ruled on the merits, because it is based on the assertion that the defendant’s counsel called a witness who was in possession of some information which was beneficial to the defendant but also of some damaging information, and then allowed that witness and another witness to testify to irrelevant and immaterial damaging matters without making objections. No further record would be required to rule this claim and to decide whether counsel was unconstitutionally ineffective. The decision would require an analysis of the entire record to determine whether the omissions were substantially prejudicial, considering the strength of the prosecution’s case and the magnitude of counsel’s mistake. Because the Court does not make this determination I shall refrain from doing so, leaving the defendant to such other remedies as he and his counsel might devise.
¶11The defendant’s Point II should be ruled on the merits.