dissenting.
In State v. Verna, 9 Or App 620, 626, 498 P2d 793 (1972), we stated:
“Because the election to defend pro se necessarily involves a waiver of the right to counsel, it is incumbent upon the court to determine, by recorded colloquy, that the election or waiver is intelligent and competent. Carnley v. Cochran, 369 US 506, 82 S Ct 884, 8 L Ed 2d 70 (1962); Johnson v. Zerbst, 304 US 458, 465, 58 S Ct 1019, 82 L Ed 1461, 1466, 146 ALR 357 (1938); State v. Coliman, 9 Or App 476, 497 P2d 1233 (1972). At minimum, the court *233should determine whether defendant understands the nature of the charge, the elements of the offense and the punishments which may be exacted. Further informing him of some of the pitfalls of defending himself, the possible advantage that an attorney would provide, and the responsibility he incurs by undertaking his own defense will also serve to insure defendant’s decision is made intelligently.”
Verna does not “require the trial court to conduct a catechism with defendant, analogous to Miranda warnings, in the absence of which a conviction must be reversed,” State v. Barnett, 41 Or App 797, 803, 598 P2d 1301, rev den 287 Or 641 (1979), but “[i]n any event, the record must clearly demonstrate that the decision to waive counsel was the product of an intelligent and understanding choice.” State v. Rocha, 48 Or App 1017, 1023, 618 P2d 475 (1980). A defendant “should be made aware 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 v. California, 422 US 806, 835, 95 S Ct 2525, 45 L Ed 2d 562 (1975), quoting Adams v. United States ex rel McCann, 317 US 269, 279, 63 S Ct 236, 87 L Ed 268, 143 ALR 435 (1942).
The majority opinion limits Verna by holding that it does not apply in the case of a defendant who can afford to retain legal counsel. I am unable to discern any basis for such a distinction. Verna’s requirement that an intelligent waiver be demonstrated by a recorded colloquy recognizes the importance of a criminal defendant’s decision to defend himself without an attorney. The decision to proceed pro se is no less critical when the defendant can afford to hire a lawyer. It may in fact be a more difficult decision for a non-indigent defendant, because he must decide whether to commit personal assets to pay for his legal defense or attempt to defend himself, but an indigent defendant need not consider the expense, outside of a possible future order of restitution. Thus, a showing on the record that the defendant has been made aware of the dangers of proceeding pro se is no less important here than in the case of an indigent defendant.
Using the same balancing test used by the majority, I would reach a different result. “[AJbsent a knowing *234and intelligent waiver, no person may be imprisoned * * * unless he was represented by counsel at his trial.” Arger-singer v. Hamlin, 407 US 25, 37, 92 S Ct 1006, 32 L Ed 2d 530 (1972). (Emphasis supplied; footnote omitted.) In Johnson v. Zerbst, 304 US 458, 58 S Ct 1019, 82 L Ed 1461, 146 ALR 357 (1938), the court stated:
“ ‘[C]ourts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and * * * ‘do not presume acquiescence in the loss of fundamental rights.’ * * * The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” 304 US at 464 (Footnotes omitted).
It is possible to find a knowing and voluntary waiver of the right to counsel from a record that, at least superficially, discloses nothing but a steadfast and persistent demand for representation; a defendant might obstinately refuse to cooperate with and then discharge one lawyer after the next, all the while expressing a desire to be represented, and still be held to have knowingly waived the right to counsel. An accused cannot be allowed to control and disrupt the course of the prosecution against him in that way. See, e.g., State v. Barnett, supra. But this is not such a case. The trial court ruled that defendant’s refusal to pay his first attorney was out of conscious choice and not necessity. That is not the equivalent of a discharge without cause. Although defendant may have chosen not to pay his attorney, he did not acquiesce in the attorney’s withdrawal. More importantly, the court had the power to withhold permission for the attorney to withdraw on the eve of trial. By refusing to do so, the court forced defendant into the difficult position of either finding an attorney who was willing to undertake the defense of two Class A felonies with only 15 days for preparation, or representing himself.
The court essentially advised defendant only that he should retain an attorney by the time of trial, “or else.” It did not advise him of the disadvantages of going to trial without one. Nothing in the record indicates that defendant’s efforts during this two-week period to secure another lawyer were less than wholehearted. When defendant *235found an attorney who was willing to represent him, but only if a postponement were granted, the request for delay was refused. Although significant considerations weighed against further delay, defendant’s need for postponement was in part court-created. The denial of the motion for postponement may not have in itself denied defendant his right to counsel,1 IIbut it is a factor to be considered.
The majority relies on Ungar v. Sarafite, 376 US 575, 84 S Ct 841, 11 L Ed 2d 921 (1964), and State v. Page, 18 Or App 109, 523 P2d 1291, rev den (1974). Ungar was a contempt proceeding arising from a single statement made by a witness in the presence of the court. (The contempt probably could have been punished summarily at the end of the hearing.) The witness found to be in contempt, after appearing with counsel, was granted two continuances to allow other counsel to appear with him. When the second lawyer appeared, he requested another continuance because he was in the midst of a trial. The motion was denied and the witness, Ungar, who was himself a lawyer and was familiar with the court’s practices regarding continuances, defended himself. On those facts, Ungar is readily distinguishable from this case.
In Page, the defendant fired his retained attorney the day before trial. His motion for a postponement on the day of trial was denied, he went to trial without a lawyer, and this court affirmed his conviction. However, the trial court gave the defendant the option of reengaging his fired attorney, who was prepared for trial, and gave him time to do so, but he declined to do so. Unlike the instant case, the defendant in Page made a wholly voluntary decision to waive counsel.
Here, defendant may have played a part in bringing about the difficult situation in which he found himself but certainly was offered no way out once he was there. Although defendant was charged with two Class A felonies *236and faced the possibility of a severe penalty, the court was less than solicitous of his continuously expressed desire for representation by counsel. The record in this case is completely bare of any warning to the defendant of the dangers of proceeding pro se or of the determination by the court required by State v. Verna, supra, that the defendant understood the nature of the charges against him, the elements of the offenses and the punishment he faced. It cannot be said that defendant’s right to counsel was “diligently protected,” as was the case in State v. Pflieger, 15 Or App 383, 386, 515 P2d 1348 (1973), rev den (1974), relied on by the majority.
Considering all the circumstances, I would not find that defendant made a knowing and intelligent waiver of his right to counsel and would therefore reverse and remand for a new trial. Therefore, I dissent.
“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. * * * Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality.” Ungar v. Sarafite, 376 US 575, 589, 84 S Ct 841, 11 L Ed 2d 921 (1964).