                 IN THE SUPREME COURT OF IOWA
                            No. 49 / 05-0146

                           Filed May 25, 2007


WILLIAM HANNAN,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      Further review from a decision by the court of appeals affirming a

district court’s judgment denying the defendant postconviction relief.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED.


      Kent A. Simmons, Davenport, for appellant.



      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant

Attorney General, for appellee.
                                       2

CADY, Justice.

      In this case we must decide whether a defendant’s right to counsel

under our state and federal constitutions was violated and if counsel’s

failure to vindicate those rights resulted in ineffective assistance of counsel.

We agree with the defendant that his right to counsel was violated and that

his counsel rendered ineffective assistance in failing to assert his rights.

      I. Background Facts and Proceedings.

      William Hannan was charged with second-degree sexual abuse in

violation of Iowa Code section 709.3 (1995). The charge followed his arrest

for an incident involving his live-in girlfriend on December 12, 1996. An

assistant public defender was appointed by the district court to represent

Hannan. Within a week, Hannan made a request for substitute counsel

which was eventually granted.

      Hannan then moved to continue his trial to permit substitute counsel

additional time to prepare for the trial. The court continued the trial. As

the new trial date approached, Hannan again moved for substitution of

counsel. He indicated, among other things, he did not have confidence in

his attorney’s ability or motivation, and that he had major differences in

opinion with his attorney on how to handle his case. The district court
granted the motion.       It found Hannan established “good cause for

withdrawal.” The court appointed a third court-appointed attorney.

      Because the trial date was just over a month away, substitute counsel

moved to continue the trial so he could prepare Hannan’s defense. The

court set the matter for a hearing. Before the hearing, Hannan moved for

another substitution of counsel and the matter was set for hearing.

      At the conclusion of the hearing, the following exchange took place:

            THE COURT I’m going to move the case once more. I’m
      going to appoint Denis Faber. If you can’t keep Mr. Faber, you
      represent yourself. It is that simple. If you want to be your
                                     3
      own attorney, come in and tell us so. It is like a doctor. If you
      want a doctor to do surgery on your lungs and he won’t go in
      through your feet, so you want another doctor. It is probable
      you won’t find an attorney to do the things you want to do, so
      odds are you will have to do them yourself from that table,
      representing yourself. This is your last opportunity to have an
      attorney to represent you. You better stick with him. If you
      don’t, if you try to get rid of him or push him where he has to
      get out on ethical grounds, you will be here all by yourself and
      have to be your own lawyer, Mr. Hannan. That’s it.
             (To the Court Reporter) “Order, State versus Hannan.
      Three attorneys have now withdrawn from representation of
      Mr. Hannan. Because Mr. Harmon’s withdrawal is based on
      an ethical ground, the Court grants it.
             The Court has advised Mr. Hannan in court that the
      Court will appoint one more attorney for him and this is the
      last attorney. He must either get along with this attorney and
      not seek to have him do anything the attorney claims will
      violate the code of ethics or he will end up trying this case pro
      se and represent himself.
             It is now ordered that Attorney Denis Faber is appointed
      to represent the Defendant at public expense. . . .”
             Now, you have gotten Denis Faber. He is your attorney.
             ....
             He is it. From now on, you keep him or you represent
      yourself.
             THE DEFENDANT: Well, I’m just trying to defend myself,
      Your Honor.
             THE COURT: I know it and that is how you will do it.
      You will defend yourself if you don’t keep this lawyer.

The trial was continued for another month.

      Five days before this new trial date, Faber filed a motion to continue

the trial to a later date. In his motion, Faber admitted that he was only

appointed over a month earlier and that he had not had time to review the

file or even meet with the defendant. The district court held a hearing on

Faber’s motion, granted the motion, and continued trial to February 1998.

      Prior to trial, Hannan learned that Faber had never tried a criminal

case, and never tried any case before a jury. Because Faber was “concerned

that Defendant’s right to a fair trial is compromised by this circumstance,”

Faber made a motion to appoint co-counsel. Before the motion was ruled

on, Hannan told Faber he no longer wanted his representation and would
                                    4

prefer to represent himself. As a result, Faber filed a motion for leave to

withdraw on December 30, 1997. The district court held a hearing on these

motions in January. At this hearing, the following exchange took place:

             THE COURT: The motion [for leave to withdraw] provides
      that the Defendant advised Mr. Faber that he, the Defendant,
      no longer wishes Mr. Faber to represent him and would prefer
      to represent himself. Is that true, Mr. Hannan?
             THE DEFENDANT: Yes, sir.
             THE COURT: And that’s yet your feeling today?
             THE DEFENDANT: Yeah, I don’t have the money to
      afford the 6, 7, $8000 the attorneys want.
             THE COURT: This is your fourth attorney.
             THE DEFENDANT: Right.
             THE COURT: And we had a long discussion, and my last
      order said that four was all we had for you, that was all we’d
      give you, that would prove to us satisfactorily there isn’t any
      attorney here that is going to be able to do what you want them
      to do.
             THE DEFENDANT: I’m not happy with court-appointed
      attorneys.
             THE COURT: Huh?
             THE DEFENDANT:           I’m not satisfied with court-
      appointed attorneys.
             THE COURT: So you’re either going to hire one or
      represent yourself?
             THE DEFENDANT: That’s correct.
             THE COURT: Okay. That being the case, Mr. Faber, I’m
      going to grant your motion for leave to withdraw as counsel in
      the case.

After this exchange the court explained to Faber that it was going to
reappoint him to “sit at counsel table during the trial.” The court then

further explained what it expected of Faber as stand-by counsel.

      Hannan then asked several questions of the court concerning his self-

representation. He inquired about filing documents, jury selection, lesser

included offenses, motions and witnesses, expenses, plea bargaining, and

the possible verdicts that could be rendered. In response, the court also

gave Hannan a brief overview of the trial procedures.

      Following the hearing, the court sustained the motion to withdraw

and overruled the motion to appoint co-counsel. The order made it clear
                                      5

that Hannan was proceeding pro se, and that Faber was “to serve strictly as

a resource to the Defendant in terms of answering Defendant’s questions.”

      Trial commenced with Hannan representing himself.           Faber was

present as stand-by counsel. At Hannan’s request, Faber conducted jury

selection and freely participated in arguing Hannan’s pretrial motions.

Hannan gave the opening and closing statements, and examined all

witnesses.

      The jury found Hannan guilty of second-degree sexual abuse. He was

sentenced to serve a term of imprisonment not to exceed twenty-five years.

Pursuant to section 902.12, Hannan was required to serve at least eighty-

five percent of his sentence.

      Hannan filed a pro se motion for new trial and a pro se motion in

arrest of judgment. Both motions were based on a typographical error in

the verdict form and evidence excluded at trial. These motions were denied,

and Hannan appealed. The same claims in support of the posttrial motions

were raised as error on appeal.

      Faber continued to represent Hannan on appeal.            The court of

appeals affirmed the judgment and sentence. It held the district court did

not abuse its discretion in excluding certain items of evidence, and the error
in the verdict form did not prejudice the defendant.

      Hannan filed a pro se application for postconviction relief (PCR). One

of the reasons advanced in his application was an “Improper waiver of right

to counsel,” in which Hannan stated there was “no record of where the

defendant had knowingly, intelligently, and voluntarily waived his rights, to

proceed pro se.”    The PCR court appointed an attorney to represent

Hannan. The attorney filed an amended application in April of 2003. The

amended application did not assert an improper waiver of counsel due to

procedural errors, although it did assert claims of ineffective assistance of
                                      6

trial and appellate counsel. The claims of ineffective assistance of counsel,

however, did not assert counsel was ineffective for failing to argue that an

improper waiver of counsel occurred. The PCR court eventually denied

Hannan relief, finding he had not shown how Faber had failed in performing

an essential duty.

      Hannan appealed the decision of the PCR court and retained Kent

Simmons to represent him. Simmons included the improper waiver of

counsel as a ground for his ineffective-assistance-of-counsel claim, and

moved for a limited remand to develop the issue. We denied the motion, but

granted his request to expand the record on appeal to include the original

trial proceedings. The court of appeals affirmed the decision of the PCR

court without a decision under Iowa Rule of Appellate Procedure 6.24(1), (4).

Hannan then petitioned this court for rehearing. We granted Hannan’s

petition for further review.

      II. Issues.

      “On further review, we can review any or all of the issues raised on

appeal or limit our review to just those issues brought to our attention by

the application for further review.” Anderson v. State, 692 N.W.2d 360, 363

(Iowa 2005). In his application for further review, Hannan argues his trial,
appellate, and postconviction counsel were ineffective in failing to challenge

the adequacy of the defendant’s waiver of counsel. He also argues his trial,

appellate, and postconviction counsel were ineffective in failing to challenge

the denial of his request to reinstate counsel. Finally, Hannan argues his

trial, appellate, and postconviction counsel were ineffective in failing to

challenge the ineffective assistance of the defendant’s stand-by counsel at

his original criminal trial. We choose to address Hannan’s first argument.
                                              7

       III. Standard of Review and Applicable Law.

       We review claims of ineffective assistance of counsel de novo. State v.

Williams, 574 N.W.2d 293, 300 (Iowa 1998). “To prove ineffective assistance

of counsel, the appellant must show that (1) counsel failed to perform an

essential duty, and (2) prejudice resulted.” State v. Lane, 726 N.W.2d 371,

393 (Iowa 2007). There is a presumption the attorney acted competently,

and prejudice will not be found unless there is “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” State v. Hopkins, 576 N.W.2d 374, 378 (Iowa

1998).

       IV. Preservation of Error.

       The State argues Hannan failed to preserve error because Iowa Code

section 814.7 (2005) does not apply in this case, and Hannan failed to meet

the requirements to preserve error in existence prior to the enactment of

section 814.7. 1      Section 814.7 allows a defendant to raise ineffective-

assistance-of-counsel claims for the first time in PCR proceedings. Iowa

Code § 814.7 (“The [ineffective assistance of counsel] claim need not be

raised on direct appeal from the criminal proceedings in order to preserve

the claim for postconviction relief purposes.”); see State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006) (explaining section 814.7); State v. Tate, 710

N.W.2d 237, 239–40 (Iowa 2006) (same). The section went into effect on

July 1, 2004.



        1The State does not challenge preservation of error based on the failure of Hannan

to submit the waiver of counsel issue to the district court at the postconviction relief
hearing as a ground for his claim of ineffective assistance of counsel. The issue was raised
for the first time on PCR appeal, but we took a pragmatic approach by permitting the
original trial record to be considered as part of this appeal. This allows us to consider the
issue raised on appeal instead of requiring Hannan to file a new postconviction relief action
based on ineffective assistance of postconviction relief counsel for failure to raise the issue
in the original postconviction relief proceeding.
                                               8

       The State claims section 814.7 does not apply because of our rule

that “statutes controlling appeals are those that were in effect at the time

the judgment or order appealed from was rendered,” and the criminal

judgment against Hannan which he is ultimately appealing occurred long

before the effective date of the statute. Wal-Mart Stores, Inc. v. Caselman,

657 N.W.2d 493, 498 (Iowa 2003) (quoting Ontjes v. McNider, 224 Iowa 115,

118, 275 N.W. 328, 330 (1937)).                 Hannan argues the statute applies

because the PCR judgment (that he is now appealing) took place months

after the effective date of the statute.

       We are not convinced, however, the rule the State relies upon is even

applicable to section 814.7. Section 814.7 is not a “statute[] controlling [an]

appeal[]” so much as it is a statute describing the procedure to bring a

claim of ineffective assistance of counsel. Thus, we are not required to

determine what “time the judgment or order appealed from was rendered”

because we do not believe this rule applies to section 814.7. 2

       Instead, we are convinced a different rule applies to section 814.7

that makes the statute applicable in this case. While most statutes are

presumed to be prospective in application, remedial or procedural statutes

may be applied retroactively. See Iowa Code § 4.5; Schuler v. Rodberg, 516
N.W.2d 902, 904 (Iowa 1994) (recognizing “that remedial and procedural

statutes are exceptions to the general rule and may be applied

retroactively”). Section 814.7 governs the methods by which a defendant


       2Moreover,    even if we had to, we think Hannan has the better argument. Our only
concern is whether Hannan preserved error in this PCR proceeding, not whether he
preserved error on direct appeal. Thus, if section 814.7 is a statute controlling an appeal
as the State suggests it is, then as applied to this action it can only be a statute controlling
Hannan’s instant appeal—that is, Hannan’s appeal from the PCR court’s decision. The PCR
court’s judgment was entered after the effective date of the statute, and therefore even
under the State’s position Hannan is able to bring his claim. At the time Hannan appealed
the PCR court’s decision section 814.7 was in effect and allowed Hannan to bring his claim
of ineffective assistance of counsel without raising it on direct appeal.
                                     9

may assert a claim of ineffective assistance of counsel. See Iowa Code

§ 814.7. As such, it “prescribes a method of enforcing rights or obtaining

redress for their invasion.” Dolezal v. Bockes, 602 N.W.2d 348, 351 (Iowa

1999). Moreover, section 814.7 does not affect the substantive rights of

parties, but rather “governs the practice, method, procedure, or legal

machinery by which the substantive law is enforced or made effective.” Bd.

of Trs. v. City of W. Des Moines, 587 N.W.2d 227, 231 (Iowa 1998). This

indicates section 814.7 is procedural and may be applied retroactively.

      Ultimately, however, we look to legislative intent to determine whether

a statute applies retroactively or prospectively. Id. This can be determined

by employing a three-part test. See id. Such a test requires that we look at

the language of the statute, the evil to be remedied, and whether there was

an existing statute that governed the evil to be remedied. Id.

      There is nothing in the language of section 814.7 to indicate the

legislature wanted the statute to apply retroactively. Nevertheless, the

second and third factors indicate it should apply retroactively. Section

814.7 remedies the evil that occurs when litigants must raise ineffective

assistance of counsel claims without an adequate record. Thus, the statute

attempts to conserve judicial resources and place the defendant’s claim in
the court that is most informed to handle it. See Straw, 709 N.W.2d at 133.

There was no previous statute that adequately dealt with this concern. See

Iowa Code chapter 822. As a result, we think the legislature’s attempt to fix

a procedural wrong evinces an intent to make the statute retroactive. See

Bd. of Trs., 587 N.W.2d at 531–32. Accordingly, Hannan’s claim is properly

before us under section 814.7.

      V. Discussion.

      To prevail on his ineffective-assistance-of-counsel claims Hannan

must prove by a preponderance of the evidence that his counsel failed to
                                             10

perform an essential duty and that such failure prejudiced him. See, e.g.,

Lane, 726 N.W.2d at 393. First we must decide if there was a constitutional

violation as Hannan alleges. See, e.g., State v. Ceron, 573 N.W.2d 587, 590–

92 (Iowa 1997) (first determining whether the defendant’s basis for

ineffective assistance of counsel had merit, and determining that because it

did not, counsel did not breach an essential duty). Hannan has alleged his

constitutional right to counsel was violated under article I, section 10 of the

Iowa Constitution and the Sixth Amendment to the United States

Constitution, made applicable to the States through the Fourteenth

Amendment. 3 See Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9

L. Ed. 2d 799 (1963) (applying the Sixth Amendment right to counsel upon

the states through the Fourteenth Amendment). If a constitutional violation

occurred then we can proceed to determine whether counsel failed to

perform an essential duty by not vindicating those rights and whether

prejudice resulted.

       A defendant’s constitutional right to counsel is effective until waived.

State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). Unless Hannan properly

waived his right to counsel, Hannan still had his constitutionally protected

right to counsel “[a]t all critical stages of the criminal process.” Majeres,
722 N.W.2d at 182. Because Hannan’s stand-by counsel at trial is not

equivalent to representation and does not cure an improper waiver,

Hannan’s right to counsel was violated unless he properly waived it. Rater,

568 N.W.2d at 661 (“[T]he appointment of stand-by counsel is insufficient to

satisfy the Sixth Amendment right to counsel when the court has failed to


       3Hannan    has not alleged any reason for treating the right to counsel under our state
and federal constitutions differently, and thus we address the merits of Hannan’s
constitutional argument without differentiating between the two. See State v. Majeres, 722
N.W.2d 179, 182 (Iowa 2006) (addressing questions concerning our state and federal
constitution’s right to counsel under a federal analysis).
                                            11

conduct an inquiry to ensure the defendant’s waiver of that right was

knowing and intelligent.”).          Therefore, the question we must decide is

whether Hannan properly waived his right to counsel. 4
       A proper waiver must be voluntary, knowing, and intelligent.

Stephenson, 608 N.W.2d at 782 (“[B]efore a trial court honors an accused’s

request to waive the right to counsel, it must satisfy itself the defendant’s

election is voluntary, knowing, and intelligent.”); Rater, 568 N.W.2d at 658

(“Before a trial court accepts the request, the court must make the

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.’ ” (quoting Adams v. United States, 317 U.S. 269,

279, 63 S. Ct. 236, 242, 87 L. Ed. 268, 275 (1942))). In order for the

defendant to properly waive his right to counsel we have required courts “to

engage the accused in a colloquy sufficient to apprise a defendant of the

dangers and disadvantages inherent in self-representation.” Stephenson,

608 N.W.2d at 782; see State v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000) (“A

searching or formal inquiry is among the procedures required before an

accused’s waiver of counsel may be accepted.”). Moreover, it is up to the

       4Whether    Hannan properly invoked his right to self-representation is not before us,
although its analysis closely parallels that of whether Hannan properly waived his right to
counsel. See Spencer v. Ault, 941 F. Supp. 832, 851 (N.D. Iowa 1996) (calling the right to
self-representation a “sister right” under the Sixth Amendment). Determining whether a
defendant invoked his or her right to self-representation necessarily requires a
determination of whether the defendant waived his or her right to counsel, but it also
requires additional determinations not present in a waiver-of-counsel inquiry. Compare
Spencer, 941 F. Supp. at 834 (determining whether defendant invoked his right to self-
representation by analyzing whether defendant “clearly and unequivocally asserted his [or
her] right to self-representation” (which includes an analysis of whether the defendant
knowingly, voluntarily, and intelligently waived his or her right to counsel), and whether
the court “appointed only standby counsel to assist the [defendant] with his [or her]
defense,” and “whether the [defendant] then waived his [or her] right to self-representation
by acquiescing in the actions of his standby counsel”), with State v. Stephenson, 608
N.W.2d 778, 782 (Iowa 2000) (determining whether the defendant waived his right to
counsel by deciding whether “the defendant’s election [wa]s voluntary, knowing, and
intelligent”).
                                      12

State to prove that a valid waiver exists. Rater, 568 N.W.2d at 660 (“The

State has the burden to prove the waiver was valid.”).

      The surrounding circumstances will determine the sufficiency of a

colloquy.   See Stephenson, 608 N.W.2d at 782 (“The degree of inquiry

necessary to assure a valid waiver varies with the nature of the offense and

the ability of the accused to understand the process.”); Cooley, 608 N.W.2d

at 15 (noting “ ‘a judge must investigate as long and as thoroughly as the

circumstances of the case before him demand’ ” (citation omitted)).

However, a “ ‘mere routine inquiry’ ” is insufficient, and a “ ‘penetrating and

comprehensive examination’ ” is necessary.        Cooley, 608 N.W.2d at 15

(citation omitted). A sufficient colloquy will necessarily look into

      “the nature of the charges, the statutory offenses included
      within them, the range of allowable punishments thereunder,
      possible defenses to the charges and circumstances in
      mitigation thereof, and all other facts essential to a broad
      understanding of the whole matter.”

Id. (quoting Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 323, 92

L. Ed. 309, 321 (1948)). In addition, the defendant must be “admonished as

to the usefulness of an attorney at that particular proceeding, and made

cognizant of the danger in continuing without counsel.” Id. In previous

cases we have even suggested that district court judges use the model

inquiries found in our state and federal bench books to obtain a proper

waiver of counsel. See State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000)

(recommending the model inquiry found in Iowa Bench Book, 5-37 to 5-41

(1999)); State v. Spencer, 519 N.W.2d 357, 360 n.1 (Iowa 1994)

(recommending the model inquiry found in 1 Bench Book for United States

District Judges 1.02-2 (3d ed. 1986)); see also Spencer, 941 F. Supp. at 843–

44 (discussing and quoting the Bench Book for United States District Judges).
                                      13

      In this case the trial court did not conduct the all important colloquy

to make sure Hannan properly waived his right to counsel. The State

argues the judge’s brief explanation of trial procedures and answers to

Hannan’s questions during the hearing on Faber’s motion to withdraw were

sufficient to comport with our constitutional requirements. We disagree.

First, as Hannan correctly points out, these explanations and answers

occurred after the judge essentially forced Hannan to represent himself.

Second, even if there was a cognizable colloquy, it fell far short of discussing

the necessary constitutional concerns. Nowhere did the court address the

dangers of self-representation or make any kind of finding that his waiver

was voluntary.

      It is perhaps axiomatic to say that at all stages in these proceedings

Hannan’s counsel had an essential duty to protect his constitutional rights.

While we presume his counsel acted competently and the representation fell

“within the wide range of reasonable, professional assistance,” under these

facts Hannan met his burden to prove by a preponderance of the evidence

that his counsel failed to perform an essential duty. State v. Dible, 538

N.W.2d 267, 272 (Iowa 1995). Our laws regarding a defendant’s right to

counsel were well established and recently emphasized at the time of the
violation. See Gideon, 372 U.S. at 335, 83 S. Ct. at 792, 9 L. Ed. 2d at 799

(making the Sixth Amendment right to counsel binding upon the states);

Rater, 568 N.W.2d at 658 (emphasizing the Sixth Amendment constitutional

requirements months before Hannan’s trial). Such circumstances should

have instructed competent counsel to object to Hannan’s deficient waiver

and vindicate his rights. Cf. State v. Hepperle, 530 N.W.2d 735, 740 (Iowa

1995) (finding counsel did not fail to perform an essential duty when the

law at the time was less than clear). Hannan’s initial PCR application

indicated his belief that the waiver was insufficient. Moreover, the waiver
                                      14

was clearly defective.     Counsel should have raised this argument for

Hannan. Hannan has proved that his counsel failed to perform an essential

duty.

        Hannan has also met his burden of proving prejudice. Whether a

defendant “was actually prejudiced by the court’s failure to conduct a

sufficient inquiry or by its decision to require him to proceed pro se is

immaterial. Harmless error analysis is not applicable to Sixth Amendment

right to self-representation questions.” Rater, 568 N.W.2d at 661; Cooley,

608 N.W.2d at 18 (“The denial of an attorney during the critical stages of a

trial can never be construed as harmless error.”). Thus, when a violation of

a defendant’s right to counsel occurs, prejudice is presumed. See McKaskle

v. Wiggins, 465 U.S. 168, 177 n.8, 104 S. Ct. 944, 950 n.8, 79 L. Ed. 2d

122, 133 n.8 (1984) (“Since the right of self-representation is a right that

when exercised usually increases the likelihood of a trial outcome

unfavorable to the defendant, its denial is not amenable to ‘harmless error’

analysis.”).

        As a result, we hold Hannan’s Sixth Amendment right to counsel was

violated, and he has proven his claim of ineffective assistance of counsel.

Therefore, Hannan must be given a new trial. See Stephenson, 608 N.W.2d
at 783 (“[T]he failure of the trial court to conduct an adequate inquiry . . .

results in reversible error.”).

        VI. Conclusion.

        District court judges are often called upon to navigate the “thin line”

presented in cases such as this, where they must refrain from “improperly

allowing the defendant to proceed pro se, thereby violating his right to

counsel, and improperly having the defendant proceed with counsel,

thereby violating his right to self-representation.” Fields v. Murray, 49 F.3d

1024, 1029 (4th Cir. 1994); see Spencer, 941 F. Supp. at 834, 840 n.7, 844
                                       15

n.9 (discussing this predicament). We are sympathetic to judges in this

perilous position. See Spencer, 941 F. Supp. at 844 n.9. We emphasize,

however, that a motion for substitute counsel should not be granted

without cause and that proper rulings on such motions can help to avoid

violations of constitutional rights.    See Martin, 608 N.W.2d at 449 (“A

defendant must show sufficient cause to justify the appointment of

substitute counsel.     Sufficient cause includes ‘a conflict of interest,

irreconcilable conflict, or a complete breakdown in communication between

the attorney and the defendant.’ In addition, the court must balance ‘the

defendant’s right to counsel of his choice and the public’s interest in the

prompt and efficient administration of justice.’ ” (Citations omitted.)). But

we also recognize the proper granting or denying of such a motion may

inevitably lead to the same result:         the defendant proceeding pro se.

Compare Martin, 608 N.W.2d at 448 (trial court rejected defendant’s request

for substitute counsel and continuance and defendant proceeded pro se

with stand-by counsel), with Rater, 568 N.W.2d at 656–57 (trial court

granted four substitutions of counsel and multiple continuances and

defendant proceeded pro se with stand-by counsel).

      Thus, in the end, the trial court must ensure a defendant has made a
voluntary, knowing, and intelligent waiver of his right to counsel before he

or she proceeds pro se, even if the court appoints stand-by counsel. This

should always be done with a comprehensive colloquy between the court

and the defendant. As we have said before, it is an “absolute duty” upon

the trial court. See Stephenson, 608 N.W.2d at 782.

      We conclude Hannan’s Sixth Amendment rights were violated. His

counsel’s failure to vindicate those rights resulted in ineffective assistance

of counsel. Hannan must be given a new trial. We recognize our decision

continues the already long and laborious proceedings in this case. The
                                    16

result also postpones the finality expected by the State and the public.

Constitutional violations, however, are not subject to these concerns. We

vacate the decision of the court of appeals, reverse the judgment of the

district court, and remand for new trial.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED.
