dissenting.
As I suspect is the case with all appellate judges and justices, I sense the public pressure to affirm convictions. However, we have been hired to respect and protect the integrity of the criminal justice system because such is fundamental to the ultimate protection of our democratic form of government and thus we should have the courage to withstand those pressures.
The majority opinion overrules the decision of the Court of Appeals without addressing the issue which was faced squarely by the Court of Appeals — perhaps this court avoids that issue because it cannot adequately deal with it.
The Court of Appeals opinion reads in part as follows:
In the present case, the record indicates that the district judge did not make a finding at any point in the record that Langley acted with full awareness of his rights and the consequences of a waiver. Further the record fails to establish that the district court considered the applicable factors in the statute, such as Langley’s education and the complexity of the crime involved. In addition the record fails to indicate that Langley fully understood the dangers and disadvantages of self-representation. Faretta v. California, supra.
We hold that both the statute and case law taken together require that a trial court address the defendant personally and determine on the record that the demand to waive counsel is competently and intelligently made with an understanding of the nature of the crime and punishment involved. See U.S. v. Dujanovic, 486 F.2d 182 (9th Cir.1973). In determining whether the waiver of right to counsel was intelligently given, the district court must consider the particular facts in each case, as well as the factors enumerated by I.C. § 19-857 concerning the background of the defendant and make appropriate findings on the record.
The appointment of standby counsel does not mitigate the district court’s failure to examine Langley and make findings pursuant to I.C. § 19-857. It is permissible — indeed it is advisable — to appoint standby counsel to be present in the courtroom in the event that the defendant needs and requests assistance. State v. Clayton, [100 Idaho 896, 606 P.2d 1000] supra. In this case, Langley *907did request standby counsel and such counsel was appointed to him. However, waiver of the right to counsel is required despite the presence of court appointed legal advisors for a defendant who wishes to proceed pro se. State v. Barker, 35 Wash.App. 388, 667 P.2d 108 (1983). Moreover, here, when the case came to trial, Langley’s standby counsel was not present. The reasons for his absence are not disclosed in the record although Langley argues that the attorney was then involved in another trial. We suggest that the trial judge should have taken steps to assure that the appointed standby counsel would remain available if Langley was absent from the trial for any reason. This could have been communicated to Langley before the trial began. See, IDAHO TRIAL JUDGES MANUAL § 6.37 (revised September, 1979). Returning to the record in this case, we conclude that it does not demonstrate that Langley’s waiver was made knowingly and intelligently. The conviction must be reversed and remanded for a new trial. (Emphasis in original).
The majority opinion neatly sidesteps the issue which is the foundation for the reversal by the Court of Appeals.
The argument for sustaining the decision of the Court of Appeals is well stated by the staff of the law library at the penitentiary which reads in part as follows at pp. 7-11.
Moreover, Respondent’s presentation of the facts of this case (Respondent’s Brief at p. 11), are inaccurate, incorrect and incredible. Respondent submits: “A defendant’s refusal to accept the assistance of a lawyer is not a question of waiver, but rather the exercise of the choice between two different rights.” Id. at p. 11. However, as the record herein clearly reflects, Appellant did not refuse to accept the assistance of a lawyer. His requests to have advisory counsel present with him were unequivocally clear:
DEFENDANT LANGLEY: I represented myself pro se, Your Honor. I proceeded with the guidance of assist-anee of the public defender as a legal advisor.
DEFENDANT LANGLEY: Well, I intend to proceed pro se with the assistance of legal advisors from the public defender’s office. Mr. Laird Stone has been assigned to me.
DEFENDANT LANGLEY: Excuse me Your Honor. I would like the assistance of an attorney as a legal advisor. Decision pg. 2. (Emphasis added).
The respondent’s arguments upon the question of non-waiver or rather a choice between two rights (Respondent’s Brief at p. 11), are specious. In its Brief presented to the Court of Appeals which consisted of a total of five paragraphs on this subject, the Respondent states:
The appellant demanded the right to represent himself, R. p. 10. The district court ordered a deputy public defender to be present at trial in case Langley should wish to consult with him. (Tr. May 12, 1983, p. 1). Respondent’s Brief on Appeal at p. It. (Emphasis added).
If the district court “ordered” a public defender, to assist this Appellant at his trial upon very serious criminal charges, where was he at the time this trial commenced? Obviously, the appointment of a non-existent attorney was a meaningless exercise of futility.
However, the Ninth Circuit Court in Harris, also rejected the same assertions by the Government therein. In so doing, it stated:
There is the additional factor that an advisory attorney was appointed to assist Harris. It is possible that the advisory attorney fully informed him on these matters. However, nothing in the record so indicates.
Recently, in United States v. Kimmel, 672 F.2d 720, 722 (9th Cir.1982), we noted that the appropriate inquiry is what the defendant understood — not what the court said or what the court understood. In that case, we found the record was insufficient to make the determination and used the procedure of a limited remand to supplement the *908record. The opinion related the facts in that case, as follows:
The district court did not explain on the record the risks of self-representation to Kimmel. In the absence of a specific waiver inquiry, we must conclude “the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.” The record reveals that Kimmel was well-educated and literate. He also had been prosecuted several times before and, in at least one case, had represented himself without the assistance of an attorney. While this background information suggests that Kimmel appreciated the risks of self-representation, we need more details to conclude that he sufficiently understood them. For example, it would be helpful to know whether Kimmel was informed about the risks of self-representation when he represented himself previously. The existing record does not supply these details or other evidence that adequately supports a finding of an intelligent waiver.
Kimmel, 672 F.2d at 722 (citation omitted). In Kimmel, the existence of other court records could have revealed that the defendant understood the risks of self-representation. Indeed, in that case, the defendant had experience with self-representation. This could conceiveably justify an application of the Cooley exception.
In this case, we have no such facts and there is no prospect of finding other records of proceedings that could appropriately be used to supplement the record. An after-the-fact inquiry of Harris as to what he knew or understood, or an inquiry as to what he was advised by his counsel, would reverse the very procedure that should be followed. Thus, a limited remand is not appropriate in this case, and we therefore reverse and remand for a new trial. Harris, supra at pp. 325-326 [683 F.2d 322] (Emphasis added).
Respondent’s contentions that Appellant Langley was “an experienced criminal” [.Respondent’s Brief at p. 71 ], were not before the Court of Appeals, nor are they properly before this Court. The record does not contained [sic] any such facts. Respondent’s Petition presently before this Court is nothing more, nor less, than a clever procedural gambit or manipulation of the Appellate Rules based upon tithe presentation of erroneous semantics that are designed to metamorphose the facts upon which the Court of Appeals correctly decided this case. The Decision of the Court of Appeals is sustainable upon a virtual plethora of authority, all of which appears to be directly on point to the proper issue: See e.g.: Bement v. State, 91 Idaho 388 [422 P.2d 55] (1966); Cohen v. State, [97 Nev. 166] 625 P.2d 1170 (Nev.1981); State v. Chavis, [31 Wash.App. 784] 644 P.2d 1202 (Wash.1982); People v. Lucero, [200 Colo. 335] 615 P.2d [660] (Colo.1980); State v. Fayle, [134 Ariz. 565] 658 P.2d 218 (Ariz.1982); and last but not least, United States v. Dujanovic, 486 F.2d 182 (9th Cir.1973). Further support is garnered from the federal appellate court of which Idaho is a part: See e.g.: United States v. Saadya, 750 F.2d 1419 (9th Cir.1985); United States v. Harris, supra; United States v. Crowhurst, 596 F.2d 389 (9th Cir.1979); United States v. Aponte, 591 F.2d 1247 (9th Cir.1978); and, United States v. Gillings, 568 F.2d 1307 (9th Cir.1977).
This Court’s decision in State v. McCabe, 101 Idaho 727, 620 P.2d 300 (1980), is not inconsistent with the Court of Appeal’s Decision herein. Therein, as is aptly pointed out by Respondent [Respondent’s Brief at p. 13~\.
The record clearly demonstrated] that the trial judge advised McCabe of the dangers of attempting to represent himself and present his defense in a criminal trial. When McCabe indicated he was adamant in his decision, the trial court attempted to persuade McCabe to allow counsel to sit with him and advise him during the course of the trial. That suggestion was also rejected by McCabe. Id. at p. 729 (Emphasis added).
*909Here however, the record clearly reveals that the trial court did not “repeatedly and meticulously” attempt to dissuade Appellant Langley from self-representation, and instead of rejecting court-appointed counsel assistance, Appellant specifically requested that it be provided to him. Where this counsel was on the day of his trial is not disclosed by the record before this Court. See, Affidavit of Laird Stone, filed contemporaneously herewith.
It is respectfully submitted that Respondent’s application to this Court and its accompanying request to overturn a conscientious and comprehensive discussion by Idaho’s Court of Appeals of the error committed by the trial court herein, should appropriately be DENIED. The Appellate Court’s Decision should in all respects be AFFIRMED, and Respondent’s Petition dismissed as improvidently granted. (Emphasis in original).
If the majority can search this record and find a factual and legal basis which overcomes the rationale of the Court of Appeals decision and the issues raised in Langley’s brief, I would certainly come on board and affirm the conviction. If we are unable to do that, I would suggest we show a little more concern for the integrity of the judicial process.
Additionally, this Court granted Langley leave to file a supplemental brief and issue on appeal, which issue he presents as follows:
ISSUE ON APPEAL
Whether the appellate delay experienced by incarcerated criminal appeallants [sic] in the State of Idaho is a violation of the due process of law and equal protection of the law and therefore contrary to the Fifth and Fourteenth Amendments of the United States Constitution and Article 1, Sections 2 and 13 of the Constitution of the State of Idaho.
Langley’s supplemental brief computes (correctly or incorrectly) that there have been 53.4 months of delay in processing the appeal not chargeable to him. He makes the argument that the legislature has invaded the province of the judicial branch of government in providing a statute which prohibits bail pending an appeal whenever a sentence in excess of five years has been imposed. Again, the majority handles this issue on appeal by pretending it has not been raised.
BISTLINE, J., concurs.