(dissenting).
[¶ 32] I respectfully dissent on Issue II.
[¶ 33] In State v. Thomlinson, 78 S.D. 235, 237, 100 N.W.2d 121, 122 (1960), we recognized that “[i]t is not ... within the province of a court in every case to require an unwilling defendant to be represented by unwanted counsel.” We went on to state that if the defendant is mentally competent and sui jur-is (not under a legal disability) “an accused does have the right to defend himself without the aid and assistance of an attorney.” Id. at 238, 100 N.W.2d at 122-23 (citations omitted). Neither the United States Constitution nor the South Dakota Constitution requires “counsel [to] be forced upon a defendant.” Id. at 237, 100 N.W.2d at 122; see also SDConstArt VI, § 7. We reiterated this proposition in State v. Van Sickle, 411 N.W.2d 665, 666 (S.D.1987) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). “The defendant in a criminal action has both a constitutional right to be represented by counsel and a constitutional right to represent himself, whichever he chooses.” Van Sickle, 411 N.W.2d at 666 (emphasis added) (citations omitted). After two hearings where the request for substitute counsel was denied, Irvine requested to represent himself. Irvine was not allowed his choice, rather the trial court succinctly denied his request.*
[¶ 34] A defendant must voluntarily, knowingly and intelligently refuse the right to counsel. Van Sickle, 411 N.W.2d at 666 (citations omitted). Part of this determination includes the trial court’s determination that the defendant is mentally competent to proceed pro se. Thomlinson, 78 S.D. at 238, 100 N.W.2d at 122-23. In addition, for there to be a knowing and voluntary waiver, a trial court should advise a defendant of the “dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at 582 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)); see also Van Sick*185le, 411 N.W.2d at 666; Thomlinson, 78 S.D. at 287, 100 N.W.2d at 122-23. The trial court did not determine that Irvine was incompetent to represent himself. We have stated that when defendants elect to represent themselves, even after they understand all of the dangers, they should be allowed to do so. Thomlinson, 78 S.D. at 238, 100 N.W.2d at 123. Unfortunately, the trial court did not follow the correct procedure in determining whether Irvine could represent himself so this stage was never reached.
[¶ 35] Forcing an attorney upon an unwilling defendant does not serve any constitutional purpose, in fact, it violates the defendant’s right to defend himself. Faretta, 422 U.S. at 817, 95 S.Ct. at 2532, 45 L.Ed.2d at 572. This right is given to Irvine for it is “he who suffers the consequences if the defense fails.” Id. at 820, 95 S.Ct. at 2533, 45 L.Ed.2d at 573. In fact, the trial court reiterated this by stating “it’s [the representation of counsel that is] only going to affect you.” However, the purpose of counsel is to aid Irvine, “not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.” Id. “An unwanted counsel ‘represents’ the defendant only through tenuous and unacceptable legal fiction.” Id. at 821, 95 S.Ct. at 2534, 45 L.Ed.2d at 573.
[¶ 36] The majority accepts the State’s argument that, since Irvine did not unequivocally ask to proceed pro se, the trial court was not mandated to stop the proceedings and make an inquiry as to Irvine’s request. This assertion seems to be based on the facts in Van Sickle where the defendant made an “unequivocal demand of self-representation.” 411 N.W.2d at 666. At the time of Irvine’s request, the trial court should have first determined whether Irvine was competent and then began the litany of rights and benefits that he would forego by electing to proceed pro se. See Van Sickle, 411 N.W.2d at 668 (Miller, J. concurring specially). Instead, the trial court determined without making a factual basis that Irvine should not proceed pro se, therefore, the trial court never allowed this constitutionally protected option for Irvine. Within one hour after requesting new counsel for a second time, Irvine accepted a plea bargain rather than proceed with the counsel that was forced upon him. This record clearly depicts a situation where an attorney was forced upon a defendant. I would reverse and remand for an appropriate determination of whether Irvine desires to represent himself in the matter, but not for the appointment of substitute counsel.
Irvine: Can I represent myself in this? Court: No.