{dissenting). Where the issue is whether the accused waived his constitutional right to counsel, the burden is necessarily on the people, who assert that his conviction should be affirmed, to show that he duly waived his right to counsel. A defendant no more has a burden to object to the inadequacy of the judge’s inquiry at a proceeding at which it is asserted that he waived his right to counsel, than he has a burden, at arraignment or at trial, to object to a failure to inform him of his right to, or to provide him with, counsel.1
While the constitution may not require that a defendant who has waived his right to counsel be again informed of his right to counsel before sentencing, the court rule adopted by this Court imposes such a requirement.2 The purpose of the rule is to *143again provide the defendant with an opportunity to request counsel even though he waived counsel at trial. The court rule recognizes that a defendant who, having represented himself at a trial that resulted in his conviction, might be more amenable to accepting counsel at the sentencing phase.
A defendant who is not learned in the law is not likely to know that the judge, who is educated in the law, has failed to comply with the court rule in that he failed to inform the defendant once again of his right to the assistance of counsel. The court rule requiring that such information be again provided is designed to educate the defendant that, although he waived his right to counsel for the trial, he may ask for the assistance of counsel at the sentencing, and that, if he does so, such assistance will be provided.
Because the obligation to provide the information is imposed on the judge, and, without knowing that such an obligation is imposed on the judge, the unrepresented defendant would have no basis for objecting to the failure to provide such information, it is amazing that the majority imposes on the defendant the burden of showing that he was prejudiced by the failure to provide such information.
The majority, although it states that People v Grant, 445 Mich 535; 520 NW2d 123 (1994), provides the standard for determining whether the judge’s failure *144to comply with the court rule requires reversal, avoids applying the standard, holding that Lane did not allege on appeal that the judge’s error in failing to inquire whether he wished to have counsel prejudiced him in any way.
Because this is the first case announcing that a defendant who has a right to counsel has the burden of showing that he was prejudiced by the failure to provide counsel, the Court should provide an opportunity for further briefing on the question whether the defendant was prejudiced. I am confident that it has never occurred to anyone before today that the defendant must, on appeal, recite the many ways in which the absence of counsel may have prejudiced him in order to preserve the issue for appeal.
i
I agree that the absence of counsel, even if it were not duly waived, does not require a new trial in every case. On the issue whether Lane was an habitual offender, the jury would assuredly have convicted him even if Clarence Darrow were to return to defend him.
But at the sentencing phase, it is apparent that counsel may very well have been of assistance to Lane, and that the failure to comply with the court rule and to advise him of his right to counsel may have affected the sentence imposed.
The transcript of the sentencing hearing shows, I agree with the majority, that Lane was confused and ill-prepared. The judge erroneously sentenced Lane to three consecutive terms for his convictions of assault and of being an habitual offender, MCL 769.13; MSA *14528.1085, later corrected by the Court of Appeals. We should remand for resentencing.
n
The majority states that the “procedure for reviewing unpreserved, nonconstitutional plain error is set forth in People v Grant, 445 Mich 535; 520 NW2d 123 (1994).”3
In Grant, the “defendant failed to preserve the error for appellate review.” Id., p 537. Defendant Grant was represented by counsel when this failure to preserve error for appellate review occurred. In the instant case, Lane was not represented by counsel when the Anderson4/court rule5 required colloquy *146between the trial judge and Lane did not occur. If there was, as I would hold, error in failing to comply with Anderson and the court rule, it was neither Lane nor the prosecutor who introduced the error, but rather the judge who failed to comply with his obligations under Anderson and the court rule.
Imposing on a defendant who is not represented by counsel the burden of preserving for appellate review the judge’s failure to comply with Anderson and the court rule concerning the inquiry that must precede a waiver of the right to counsel, and, upon the failure of the judge to do so, to declare that on appellate review the defendant has the burden, because he failed to preserve the issue, of showing that what occurred could have been decisive of the outcome is to ensure that in almost every case the judge’s failure to do his duty will be protected from scrutiny at the appellate level.
In Grant, supra, p 553, the' Court said that the “defendant failed to establish the form of prejudice necessary to preserve an issue that was not raised before the trial court.” Where the question is whether the defendant waived his right to counsel at a hearing whereat he was not represented by counsel, any failure or lapse in the record is often of constitutional dimensions, and, to the extent it only concerns compliance with the court rule, still requires the record to *147show that the defendant voluntarily and knowingly waived his right to counsel.
In Brewer v Williams, 430 US 387, 404; 97 S Ct 1232; 51 L Ed 2d 424 (1977), the United States Supreme Court said:
The District Court and the Court of Appeals were also correct in their understanding of the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law — that it was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v Zerbst, 304 US [458] 464 [58 S Ct 1019; 82 L Ed 1461; 146 ALR 357 (1938)]. That standard has been reiterated in many cases. We have said that the right to counsel does not depend upon a request by the defendant, Carnley v Cochran, 369 US 506, 513 [82 S Ct 884; 8 L Ed 2d 70 (1962)]; cf. Miranda v Arizona [384 US 436, 471; 86 S Ct 1602; 16 L Ed 2d 694 (1966) ], and that courts indulge in every reasonable presumption against waiver, e.g., Brookhart v Janis [384 US 1, 4; 86 S Ct 1245; 16 L Ed 2d 314 (1966)]; Glasser v United States, 315 US 60, 70 [62 S Ct 457; 86 L Ed 680 (1942)]. This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. Schneckloth v Bustamonte, 412 US 218, 238-240 [93 S Ct 2041; 36 L Ed 2d 854 (1973)]; United States v Wade [388 US 218, 237; 87 S Ct 1926; 18 L Ed 2d 1149 (1967)].
The obligation to create a record showing waiver of the right to counsel is imposed on the judge, not on the defendant. It is extraordinary that the majority would impose the burden of objecting to the inadequacy of the record on the unrepresented defendant either by requiring contemporaneous objection or by holding that the burden is on the defendant on appellate review to show that he was prejudiced.
*148I would remand for resentencing, at which time defendant shall be represented by counsel if he so desires.
Cavanagh, J., concurred with Levin, J.Brewer v Williams, 430 US 387, 404; 97 S Ct 1232; 51 L Ed 2d 424 (1977), quoted in part II.
The rule in effect at the time this case was tried provided:
Advice at Subsequent Proceedings. Even though a defendant has waived the assistance of a lawyer, the record of each subsequent proceeding (e.g., preliminary examination, arraignment, proceedings leading to possible revocation of youthful trainee status, hearings, trial or sentencing) must affirmatively show that the court advised the defendant of the right to a lawyer’s assistance (at public expense if the defendant is indigent) and that the defendant waived that right. Before the court begins such proceedings,
(1) the defendant must reaffirm that a lawyer’s assistance is not wanted; or
*143(2) if the defendant requests a lawyer and is financially unable to retain one, the court must appoint one; or
(3) if the defendant wants to retain a lawyer and has the financial ability to do so, the court must allow the defendant a reasonable opportunity to retain one. [MCR 6.005(E) (emphasis added). The rule was amended October 23, 1995, effective January 1, 1996.]
Ante, p 140.
First, the request must be unequivocal. . . .
Second, once the defendant has unequivocally declared his desire to proceed pro se the trial court must determine whether defendant is asserting his right knowingly, intelligently and voluntarily. Faretta [v California, 422 US 806, 885; 95 S Ct 2525; 45 L Ed 2d 562 (1975)]; [People v Holcomb, 395 Mich 326, 337; 235 NW2d 343 (1975)]. The trial court must make the pro se defendant 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. Id. Defendant’s competence is a pertinent consideration in making this determination. Westbrook v Arizona, 384 US 150; 86 S Ct 1320; 16 L Ed 2d 429 (1966). But his competence does not refer to legal skills, “[f]or his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself.” Faretta, supra.
The third and final requirement is that the trial judge determine that the defendant’s acting as his own counsel will not disrupt, unduly inconvenience and burden the court and the administration of the court’s business. [People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976).]
If the court determines that the defendant is financially unable to retain a lawyer, it must promptly appoint a lawyer and promptly notify the lawyer of the appointment. The court may not permit the defendant to make an initial waiver of the right to be represented by a lawyer without first
*146(1) advising the defendant of the charge, the maximum possible prison sentence for the offense, any mandatory minimum sentence required by law, and the risk involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if the defendant is indigent, the opportunity to consult with an appointed lawyer. [MCR 6.005(D).]