specially concurring, in which McCLINTOCK, Justice, joins.
I, of course, concur with the majority’s conclusion that it was reversible error to deny the appellant’s motion for continuance. There is no question in my mind that the denial of this motion amounted to a deprivation of appellant’s constitutional right to effective assistance of counsel. In this vein, I would say again what I said in my dissent to the decision in Ash v. State, Wyo., 555 P.2d 221, 232, reh. den. 560 P.2d 369:
“. . [N]o/awyer can adequately prepare his client’s defense in the time allotted to the defense attorney here in a way which would assure a defendant effective assistance of counsel. . . [Emphasis in original text]
I cannot agree, however, with the court’s attempt to distinguish the facts in this case from the facts in Ash v. State, supra, thereby justifying the conclusions reached in the Ash decision. For me, both situations indicate a deprivation of a defendant’s right to effective assistance of counsel. See, Ash v. State, supra, 560 P.2d 369 (McClintock, Justice, dissenting, in which Rose, Justice, joins).
Furthermore, I am troubled by the absence of ascertainable standards which can be utilized for purposes of guidance in future cases. As I view the majority opinion, it embraces a case-by-case approach, in which the defendant’s due-process rights are determined by a standard which asks whether the case — in which counsel is not appointed until shortly before trial — was “well tried and sharply contested.” The majority finds that the test was not satisfied in this case because, (1) appellant’s cross-examination of state witnesses was not very fruitful due to the lack of time to conduct interviews; (2) appellant’s counsel did not have time to view the scene of the alleged crime; and (3) appellant’s counsel’s position on the admissibility of a statement was confusing. Absent from the majority opinion is any discussion of the Ash v. State, supra, requirement that there be a “clear showing of manifest injustice” by virtue of the denial of a continuance. Also absent is any reference to the Ash v. State, supra, definition of “ineffective counsel” which embraced concepts of mockery, sham, and farce. It seems, then, to me that these two majority opinions leave us groping for standards by which we may judge and test a defendant’s assertion that he has been denied his constitutional right to effective assistance of counsel.
In an effort to furnish useable standards which recognize the defendant’s right to *1063effective assistance of counsel and to a fair trial, I am compelled to align myself with an approach which would relieve the defendant of the burden of proving a constitutional violation under circumstances like those present here. Ash v. State, supra, 560 P.2d at 370-372. See, United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197; Garland v. Cox, 4 Cir., 472 F.2d 875; and Martin v. Commonwealth of Virginia, 4 Cir., 365 F.2d 549. When counsel is not appointed until shortly before trial, the constitutional violation should be presumed, and the state required to prove beyond a reasonable doubt that the violation was harmless. See United States v. DeCoster, No. 72-1283, slip op. at 24-25 (D.C.Cir. Oct. 19, 1976) known as DeCoster II. While this standard has been criticized (Moore v. United States, 3 Cir., 432 F.2d 730), I view it as absolutely necessary in situations where it is virtually impossible to know how the defendant was affected by the belated appointment of counsel. The majority points to three areas which were possibly affected, but — -in reality — it must be conceded that no one knows whether there were actual effects. This is why there is a need for a presumption of a violation — with inherent prejudice flowing therefrom. Admittedly, it would be difficult for the state to negate this presumption — but, the concern must remain focused upon the avoidance of penalizing the defendant in those circumstances where there has been a failure to provide him with the opportunity to prepare, with the inevitable consequential denial of effective assistance of counsel.
Absent from my discussion of what I view to be the proper standards is any reference to who is at fault for bringing on the circumstances which result in a lack of adequate time to prepare for trial. For me, to indulge in a fault-seeking search followed by an indictment of a judge, counsel or defendant, is an exercise in irrelevancy. We should only be concerned with whether the defendant’s right to a fair trial has been denied, not with how the denial came to pass. There may or may not be conduct in this case which warrants referral to the Grievance Committee — I don’t know — but that is not the point! And, I will not join in a search for the magical number which could be considered to be the minimum number of days before trial which is required in order that there be adequate opportunity for preparation. That, indeed, may depend on the circumstances of individual cases.
My concern, then, is not with the result reached herein, but with the pattern it provides for the future. The great American jurist, Roscoe Pound, wrote of the problem which bothers me in this way:
“. . . The necessity of weighing not merely the grounds of its decision, but the exact words in which those grounds are expressed, with reference to their possible use in other cases and thus of foreseeing within limits their potential analogical applications, is perhaps the gravest of the burdens involved in the crowded dockets of modern American appellate courts. If it were not for the need of scrupulously careful formulation of their decisions with reference to other cases in the future, our appellate courts could despatch the business that comes before them with less than half of the effort which our system of precedents requires. As it is, one or both of the aspects of the court’s function must suffer. Either consideration of the merits of the actual controversy must yield to the need of detailed formulation of a precedent that will not embarrass future decision, or careful formulation must give way to the demand for study of the merits of the case in hand.” Pound, The Formative Era of American Law, at 120 (1938).
We must — if we can — attempt to fulfill both of these functions in cases which warrant such treatment. The present ease calls for this kind of attention!! The protection of a defendant’s right to a fair trial demands it!!!