A determination of indigency by the public defender under s. 977.07 is not the end of the court ’s inquiry into the need to appoint counsel. State v. Dean, 163 Wis. 2d 503, 471 N.W.2d 310 (Ct. App. 1991). The question of ineffective counsel is whether there is a reasonable probability that a jury viewing the evidence untainted by counsel’s errors would have had a reasonable doubt respecting guilt. State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992). A defense attorney’s ex parte petition to withdraw was improperly granted. A minimal due process hearing was required. State v. Batista, 171 Wis. 2d 690, 492 N.W.2d 354 (Ct. App. 1992). Absent a clear waiver of counsel and a clear demonstration of a defendant’s ability to proceed pro se, courts are advised to mandate full representation by counsel. State v. Haste, 175 Wis. 2d 1, 500 N.W.2d 678 (Ct. App. 1993). The proper test of attorney performance is reasonableness under prevailing professional norms. Counsel is not required to have a total and complete knowledge of all criminal law, no matter how obscure. State v. Hubert, 181 Wis. 2d 333, 510 N.W.2d 799 (Ct. App. 1993). Appellate counsel’s closing of a file because of no merit without the defendant knowing of the right to disagree and compel a no merit report under s. 809.32 is ineffective assistance of counsel. A defendant must be informed of the right to appeal and to a no merit report, but need not be informed orally. State ex rel. Flores v. State, 183 Wis. 2d 587, 516 N.W.2d 362 (1994). An appellate defendant represented by counsel has no right to have a pro se brief considered by the court when counsel has submitted a brief. State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). The decision to poll the jury may be delegated to counsel. Waiver by counsel without showing that the waiver was knowingly and voluntarily made by the defendant did not violate a constitutional right. State v. Jackson, 188 Wis. 2d 537, 525 N.W.2d 165 (Ct. App. 1994). If the same counsel represents co-defendants, the trial court must conduct an inquiry to determine whether the defendant waives the right to separate counsel. When an actual conflict of interest is found, specific prejudice need not be shown. If no inquiry is made by the trial court, the court of appeals will examine the record, reversing if an actual conflict of interest is found. State v. Dadas, 190 Wis. 2d 339, 526 N.W.2d 818 (Ct. App. 1994). The prejudice prong of the test for ineffective counsel was met when counsel failed to insure that a defense witness would appear without shackles. State v. Tatum, 191 Wis. 2d 547, 530 N.W.2d 407 (Ct. App. 1995). A suspect’s reference to an attorney who had previously or is presently representing the suspect in another matter is not a request for counsel requiring the cessation of questioning. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). The right to counsel and right to remain silent are the defendant’s. An attorney, not requested by the defendant, could not compel the police to end questioning by stating that no questioning was to take place outside his presence. State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995). A defendant must assert the right to counsel in a timely manner. However, no waiver of counsel is presumed and a waiver must be clear and unequivocal. The state has the burden of overcoming the presumption. Mere inconvenience to the court is insufficient to deny the right to counsel. State v. Verdone, 195 Wis. 2d 476, 536 N.W.2d 172 (Ct. App. 1995), 94-3369. Withdrawal of a guilty plea after sentencing may be based on ineffective assistance of counsel. Erroneous advice regarding parole eligibility can form the basis for ineffective assistance. State v. Bentley, 195 Wis. 2d 580, 536 N.W.2d 202 (Ct. App. 1995), 94-3310. A trial court’s failure to conduct a hearing to determine if a defendant’s waiver of counsel is knowingly made is harmless error absent a showing of prejudice. A trial court need not make a finding that a defendant is competent to proceed without counsel unless there is doubt that the defendant is competent to stand trial. State v. Klessig, 199 Wis. 2d 397, 544 N.W.2d 605 (Ct. App. 1996), 95-1938. In certain situations a court may find that a defendant has waived counsel without having expressly done so. Waiver was found when the defendant constantly refused to cooperate with counsel while refusing to waive the right and when the court found the defendant’s intent was to “delay, obfuscate and compound the process of justice.” State v. Cummings, 199 Wis. 2d 721, 546 N.W.2d 406 (1996), 93-2445. The test for ineffective assistance of counsel under the state constitution is the same as under the federal constitution. In such cases the burden is placed on the defendant to show that the deficient performance of counsel prejudiced the defense. State v. Sanchez, 201 Wis. 2d 219, 548 N.W.2d 69 (1996), 94-0208. Read together, ss. 809.32 (4) and 977.05 (4) (j) create a statutory, but not constitutional, right to counsel in petitions for review and cases before any court, provided counsel does not determine the appeal to be without merit. When counsel fails to timely file a petition for review, the defendant may petition for a writ of habeas corpus, and the supreme court has the power to allow late filing. State ex rel. Schmelzer v. Murphy, 201 Wis. 2d 246, 548 N.W.2d 45 (1996), 95-1096. Whether counsel is deficient by not requesting the polling of individual jurors upon the return of a verdict depends on all the circumstances, not on whether counsel explained to the defendant the right to an individual polling. State v. Yang, 201 Wis. 2d 725, 549 N.W.2d 769 (Ct. App. 1996), 95-0583. To establish ineffective assistance of counsel based on a conflict of interest there must be an actual conflict that adversely affected the attorney’s performance. Simultaneous representation of a criminal defendant and a witness in that case in an unrelated civil case resulted in an actual conflict. State v. Street, 202 Wis. 2d 533, 551 N.W.2d 830 (Ct. App. 1996), 95-2242. Counsel is not ineffective when the general theory of the defense is discussed with the defendant, and when based on that theory, counsel makes a strategic decision not to request a lesser-included instruction because it would be inconsistent with or harmful to the theory of the defense. State v. Eckert, 203 Wis. 2d 497, 553 N.W.2d 539 (Ct. App. 1996), 95-1877. When a prosecutor elicits testimony that can only be contradicted by defense counsel or the defendant, if defense counsel could not reasonably foresee the dilemma and the defendant has decided not to testify, defense counsel must be permitted to testify. State v. Foy, 206 Wis. 2d 629, 557 N.W.2d 494 (Ct. App. 1996), 96-0658. Counsel was deficient when it failed to object at sentencing to a prosecutor’s sentence recommendation after agreeing in a plea bargain to make no recommendation. The defendant was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. State v. Smith, 207 Wis. 2d 258, 558 N.W.2d 379 (1997), 94-3364. But see State v. Nietzold, 2023 WI 22, 406 Wis. 2d 349, 986 N.W.2d 795, 21-0021. Whenever a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. The colloquy is to ensure that the defendant: 1) made a deliberate choice to proceed without counsel; 2) was aware of the difficulties and disadvantages of self-representation; 3) was aware of the seriousness of the charge or charges; and 4) was aware of the general range of the possible penalties. When there is no colloquy and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver, and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938. There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant’s education, literacy, fluency in English, and any disability that may affect the ability to communicate a defense. When there is no pretrial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938. It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant’s participation in fraud on the court, the defendant was entitled to vacation of the defendant’s sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997), 96-1905. When a defendant proves ineffective assistance of counsel occurred at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 Wis. 2d 849, 569 N.W.2d 758 (Ct. App. 1997), 96-2597. An in-court identification subsequent to a lineup in violation of an accused’s right to counsel is admissible only if the state carries the burden of showing that the in-court identification is based on observations of the suspect other than the lineup. State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), 95-2052.