(dissenting). I dissent from the portion of the majority opinion that concludes that Newton waived his Sixth Amendment right to counsel and approves of the circuit court's actions in this regard. There is no indication in the record that Newton knowingly and voluntarily relinquished his right to counsel. Similarly, there is no evidence that Newton was warned that if he persisted in a mode of conduct that the court considered obstructive and dilatory, he would be deemed to have waived counsel and would be required to continue with proceedings pro se. Therefore, I conclude that Newton's conviction must be reversed because it was obtained without the assistance of counsel and without a valid waiver of the right to counsel.
The right to counsel is a clear and critical component of both the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution.1 This court has recognized that the right to be represented by counsel in a criminal trial is so important that nonwaiver is presumed. Pickens v. State, 96 Wis. 2d 549, 555, 292 N.W.2d 601 (1980). Waiver cannot be assumed from a silent record, rather *760the record must show that the defendant intelligently and knowingly rejected the offer of assistance of counsel. State v. Baker, 169 Wis. 2d 49, 76-77, 485 N.W.2d 237 (1992). Where the record does not evidence a valid waiver, a conviction of an unrepresented defendant cannot stand. See Baker, 169 Wis. 2d at 78, 55-56 (where record did not show, and State did not meet burden of proving, a knowing, voluntary and intelligent waiver, defendant's conviction was constitutionally infirm because obtained without counsel); Keller v. State, 75 Wis. 2d 502, 509, 511-12, 249 N.W.2d 773 (1977) (order reversed where record was insufficient to determine "whether the constitutional rights of the defendant to counsel were fully considered by the trial court"). Further, a valid (i.e. knowing and intelligent) waiver is "an essential prerequisite to a defendant's proceeding alone..." Pickens, 96 Wis. 2d at 555.
The record contains no affirmative evidence of waiver. In fact, the defendant repeatedly stated that he opposed his attorney's motion to withdraw and in granting Attorney Haller's motion the court noted that it did so over Newton's objection. The circuit court concluded that Newton had "constructively waived" his right to the assistance of counsel.2 Although the majority concludes that the defendant waived his right to *761counsel, it concedes that Newton was "unwilling to voluntarily waive his right to counsel." Majority op. at 752. The majority finds the solution to this apparent conundrum in a court of appeals decision, State v. Woods, 144 Wis. 2d 710, 715-16, 424 N.W.2d 730 (Ct. App. 1988) which proposes that, in unusual circumstances such as when a defendant is disruptive or manipulative, a court may "find that the defendant's voluntary and deliberate choice to proceed pro se has occurred by operation of law." Majority op. at 753. According to the majority, Newton's behavior was manipulative, disruptive and "based solely upon a desire to delay," and thus the circuit court was justified in finding that he had forfeited his right to counsel. Majority op. at 754.
However, there are several key differences between Woods' and Newton's cases, most importantly — the circuit court "properly forewarned" Woods of the potential consequences of his behavior and, at the critical stage of trial, provided the defendant with the safety net of standby counsel. Woods, 144 Wis. 2d at 715. In Woods, the defendant's fourth appointed attorney filed a motion to withdraw on the basis that Woods refused to follow the attorney's advice on trial strategy. In granting the motion, the court warned Woods that he could not pick and choose his attorney and informed him that his trial would be conducted with newly appointed counsel on a given date or that Woods would be required to appear pro se. The court ultimately granted another adjournment and on the rescheduled trial date Woods indicated that he did not want his fifth public defender to represent him. Woods was then permitted to represent himself and the court granted the public defender's motion to withdraw but required him to act as standby counsel during trial. Id. at 712-14.
*762There are clearly differences between a voluntary waiver of counsel (based on a defendant's desire to exercise the right of self representation), and a "constructive waiver" or forfeiture of the right to the assistance of counsel (which operates as a matter of law when a court determines that a defendant is manipulating or obstructing the judicial process). The latter, forfeiture, is seldom invoked and generally involves cases in which non-indigent defendants have been informed of their right to retain counsel, given ample time to do so, and yet appear at trial unrepresented,3 or when a defendant attempts an eleventh hour substitution of counsel.4 This court has, however, found this to be a drastic solution and cautioned trial courts that, "[w]hen considering actions and conduct which purport to constitute a waiver of this fundamental right, all relevant inquiries into the nature and intent of those actions and conduct must be pursued prior to imposing upon the defendant the consequences of waiver." Keller, 75 Wis. 2d at 509.
Both this court and the United States Supreme Court have frequently stressed the special obligations of judicial responsibility that a circuit court faces when dealing with an unrepresented defendant.
'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or *763liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand.
State ex rel. Burnett v. Burke, 22 Wis. 2d 486, 492, 126 N.W.2d 91 (1964) (quoting von Moltke v. Gillies, 332 U.S. 708, 723 (1948)) (quoting Johnson v. Zerbst, 304 U.S. 458, 465 (1938)); see also Keller, 75 Wis. 2d at 507.
While this court has recognized the frustration engendered by difficult defendants and repeated delays, we have also noted that in confronting such situations a circuit court must keep in mind the obligation it has to the defendant. Keller, 75 Wis. 2d at 506-07.5 When a court accepts a voluntary waiver of the right to the assistance of counsel, the record must reflect that the court has made the accused aware of the difficulties and disadvantages of self-representation, and that the defendant understands the seriousness of the charges he or she faces and the potential penalties that may be imposed upon a finding of guilt. See Pickens, 96 Wis. 2d at 563.
*764Imposition of forfeiture of this important right requires no less. Similar to the procedures suggested for use by a circuit judge in accepting a waiver of the right to counsel (see Wis JI — Criminal SM — 30), a circuit court contemplating forfeiture must make sure that a defendant understands the implications of his or her actions. The record should reflect: (1) explicit warnings that, if the defendant persists in 'X" [specific conduct], the court will find that the right to counsel has been forfeited and will require the defendant to proceed to trial pro se; (2) a colloquy indicating that the defendant has been made aware of the difficulties and dangers inherent in self-representation; (3) a clear ruling when the court deems the right to counsel to have been forfeited; (4) factual findings to support the court's ruling; and (5) appointment of standby counsel.6
A circuit court should only resort to forfeiture in extraordinary circumstances. And even then, the "serious and weighty responsibility" imposed on the circuit court through its "protecting duty" strongly suggests that standby counsel should be appointed. Standby counsel serves not only to safeguard a defendant's constitutionally protected rights but also to advance the *765court's objectives of judicial efficiency by assisting the accused in overcoming routine procedural and evidentiary obstacles. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984). For example, standby counsel can assist with problems in introducing evidence, preserve appellate issues by entering timely objections, and help customize jury instructions.
In Contempt in State v. Lehman, 137 Wis. 2d 65, 403 N.W.2d 438 (1987), this court held that the circuit court had the inherent authority to appoint private standby counsel at the county's expense when the Public Defender's office declined to furnish further counsel. There, after being provided with five public defenders who were either fired or withdrew, the defendant requested to appear pro se. The circuit court questioned Lehman to make sure his waiver was knowing and intelligent, and granted his request with the caveat that "it would be in the court's interest" to have standby counsel ready to assist so that the "matter could go smoothly." Lehman, 137 Wis. 2d at 71.
In Lehman, we stated that, "[t]he question of whether an indigent defendant who elects to proceed pro se and who thereby waives his constitutional right to assistance of counsel nevertheless has a constitutional right to 'standby' counsel, if requested, is not presented," and therefore we declined to reach that issue. Lehman, 137 Wis. 2d at 76. That question remains open, as does the question of whether constitutional guarantees are violated by a judge's unilateral decision to deny standby counsel to a defendant who, like Newton, has not expressly waived the right to counsel.
The majority characterizes the dissent as implying "that the discretionary decision of the trial court to appoint standby counsel is somehow associated with a *766defendant's Sixth Amendment right to counsel." Majority op. at 755-57, n.17. This court has previously stated that the discretionary decision of the circuit court whether to approve or deny a defendant's request to proceed pro se is tied to the "trial-centered" Sixth Amendment which serves to guarantee an accused's right to an effective defense and, overall, to assure a "fair trial." Hamiel v. State, 92 Wis. 2d 656, 672, 285 N.W.2d 639 (1979). Similarly, the Sixth Amendment's purpose of ensuring a fair trial is certainly associated with a court's decision of whether a defendant shall be forced to stand alone in court contrary to his expressed request for the assistance of counsel. When a court finds it necessary to take the drastic step of imposing forfeiture of the right to counsel upon a recalcitrant defendant, the court must take steps to insure that it has done all that it can to preserve the defendant's right to a fair trial under the Sixth Amendment. A court takes a major step towards ensuring a fair trial and fulfilling its "protecting duty" by appointing standby counsel.
Here, the record reveals:
—no warnings that a continued course of conduct would be considered forfeiture and that Newton would then have to proceed pro se;
—no statement by the court of its conclusion that Newton had forfeited the right to counsel;
—no waiver inquiry or effort to inform Newton of the difficulties of self-representation;
—the defendant continued to insist he wanted counsel;
—the court denied standby counsel, even though the motion to appoint standby counsel was filed by the State;
—Newton was clearly prejudiced by his self-representation to the extent that the court corn-*767mented from the bench that Newton's defense witnesses were hurting him ("pounding additional nails into his coffin") and that he was incriminating himself by virtue of the questions he asked.7
I believe that a violation of Newton's Sixth Amendment rights occurred when he was: required to appear pro se at his trial without prior warning that continued disagreement with counsel would be considered forfeiture, not informed of the difficulties of self-representation, and denied the assistance of standby counsel. Because I conclude that Newton's conviction should be reversed and the case remanded for retrial, I respectfully dissent from that portion of the majority's opinion.
I am authorized to state that Justice SHIRLEY S. ABRAHAMSON and Justice WILLIAM A. BABLITCH join in this opinion.
Contrary to the trial court's assertion that the Sixth Amendment right to an attorney is "an inferred right,” both the federal and state constitutions contain express guarantees of this fundamental right.
In denying Newton's post-conviction motion which was based on a claim of lack of waiver, the circuit court stated:
While the record is clear that he never said, I don't want an attorney, the record is also clear he did everything possible to make it impossible for an attorney to represent him. Now, whether you want to call that a waiver, that would be the technical term, I'll ' leave that up to the Court of Appeals. I would call it a waiver. Certainly the voluntary relinquishment of a known right, Mr. Newton knew what was going to happen.
See, e.g., Commonwealth v. Wentz, 421 A.2d 796 (Pa. 1980); United States v. Gates, 557 F.2d 1086 (5th Cir. 1977), cert. denied, 434 U.S. 1017 (1978).
See, e.g., Mulkovich v. State, 73 Wis. 2d 464, 243 N.W.2d 198 (1976); Phifer v. State, 64 Wis. 2d 24, 218 N.W.2d 354 (1974). See also Wayne R. LaFave and Jerold H. Israel, Criminal Procedure, Vol. 2 11.3(c) (1984).
See also American Bar Association Standards for Criminal Justice § 6-3.6 Commentary (1986 Supplement):
Whatever the motive behind a defendant's wish to appear pro se, a judge cannot disregard the long-term interest of the accused in having guilt or lack of guilt fairly determined. Except in the most unusual circumstances, a trial in which one side is unrepresented by counsel is a farcical effort to ascertain guilt.... [I]t is ultimately the judge's responsibility to see that the merits of a controversy are resolved fairly and justly.
Standard 6-3.7 of the American Bar Association Standards for Criminal Justice states: "When a defendant has been permitted to proceed without the assistance of counsel, the trial judge should consider the appointment of standby counsel to assist the defendant when called upon and to call the judge's attention to matters favorable to the accused upon which the judge should rule on his or her motion." The Commentary to Standard 6-3.7 goes even further by suggesting that, "in all but the simplest trials, and even in those if availability of counsel permits, the court should ordinarily appoint standby counsel to assist the accused..."
To mention only a few of the mistakes that Newton made in front of the jury: he admitted to other acts which had been severed on the basis of prejudice, he revealed that he was currently in jail, he elicited testimony from his own witness that he had provided money to purchase cocaine and that another witness had purchased cocaine from him.