with whom ROBERTS, Justice, joins, dissenting.
The denial of a continuance to facilitate the trial preparation of newly appointed counsel is unquestionably a matter within the sound discretion of the trial court. *654State v. Stinson, 424 A.2d 327, 332 (Me. 1981). In my opinion, however, the presiding justice’s ruling of waiver and the untimely bifurcated appointment of counsel which preceded the denial of a continuance to this defendant constituted the apparent injustice which permits a finding of abuse of discretion on review. Id. Furthermore, the circumstances surrounding the denial raise a presumption of ineffective assistance of counsel which precludes the need to examine the record for the demonstration of counsel’s actual inadequate trial performance which the court finds lacking. United States v. Cronic, — U.S. -, -, 104 S.Ct. 2039, 2048, 80 L.Ed.2d 657, 670 (1984). I must therefore respectfully dissent.
Once the Superior Court has ordered a defendant to retain substitute counsel within a time certain, I would place upon the court a burden of inquiry to confirm whether its order has been obeyed. Michael Pease twice appeared in Superior Court unaccompanied by counsel between the time the court permitted his original counsel to withdraw and the day his trial commenced. Each occasion was months after the court had ordered the defendant to retain counsel within ten days. A glance at the docket would have revealed to the court that no new attorney had entered an appearance on behalf of Michael Pease.
Upon learning of the defendant’s indigence and lack of counsel on the morning of trial, the court appointed two separate attorneys to represent Mr. Pease. Both counsel moved for continuances as is the duty of counsel inadequately prepared to defend a criminal defendant. State v. Stinson, 424 A.2d 327, 331 (Me.1981). The trial court denied the continuances, preserving the objection and stating that “Mr. Pease is not entitled to counsel and not entitled to a continuance.” The first attorney participated in jury selection, made a general opening statement and cross-examined the State’s first witness. The court entrusted the remainder of Mr. Pease’s defense to a second attorney, who took over the next day.
The ruling of the trial court that the defendant, by his failure to obtain counsel, had waived his right to counsel, was error. The right to counsel is a fundamental constitutional guarantee, and as such, its waiver must be an “intentional relinquishment or abandonment of a known right.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). The declaration of waiver by the presiding justice directly contravenes the principle that courts “do not presume acquiescence in the loss of fundamental rights.” Id.
There is no indication that the defendant requested continuances for manipulative purposes of interfering with the “fair, efficient and effective administration of justice.” State v. Ayers, 464 A.2d 963, 966 (Me.1983). Judicial economy is a legitimate concern, but the court must balance scheduling difficulties with the constitutional rights of the accused. The trial court’s eleventh hour appointment of two unassociated attorneys to represent the defendant and its concomitant denial of a continuance to allow counsel the opportunity to prepare a defense was “a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940).
These circumstances combined to make it so doubtful that any attorney could render effective assistance of counsel that ineffectiveness can be presumed. United States v. Cronic, — U.S. -, -, 104 S.Ct. 2039, 2047-2048, 80 L.Ed.2d 657, 669 (1984). For denial of his sixth amendment right to counsel, Michael Pease is entitled to a new trial.