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. Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel’s duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), 97-3070. Whether a defendant’s motion for substitution of counsel, with an accompanying request for a continuation, should be granted depends on the balancing of several interests. State v. Wanta, 224 Wis. 2d 679, 592 N.W.2d 645 (Ct. App. 1999), 98-0318. A defendant’s prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Wisconsin Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534. A defendant who alleges counsel was ineffective by failing to take certain steps must show with specificity what the action, if taken, would have revealed and how the action would have affected the outcome. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217. When defense counsel has appeared for and represented the state in the same case in which counsel later represents the defendant and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney’s former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant’s interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97-2336. See also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428, 99-1164; State v. Henyard, 2020 WI App 51, 393 Wis. 2d 727, 948 N.W.2d 396, 19-0548. There is a distinction between the consequences on appeal of a trial court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context. The fact that a preserved error could lead to automatic reversal does not mean the same result will be reached when the error was waived. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273. The defendant’s assertion of the 6th amendment right to counsel was evident during interrogation when the defendant asked whether the police officer thought he should have an attorney and if he could call a person known to the officer to be a criminal defense lawyer. State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999), 99-0300. Inherent in a defendant’s choice to proceed pro se is the risk, which the defendant knowingly assumes, that a defense not known to the defendant will not be presented during trial. State v. Clutter, 230 Wis. 2d 472, 602 N.W.2d 324 (Ct. App. 1999), 99-0705. A defendant has a substantive due process right to enforce a plea agreement after the plea has been entered. Defense counsel’s failure to inform the defendant of that right or to pursue enforcement of the agreement constituted ineffective assistance of counsel. State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 296 (Ct. App. 1999), 98-2109. A defendant’s unusual conduct or beliefs do not necessarily establish incompetence for purposes of self-representation. Although a defendant may exhibit beliefs that are out of the ordinary and make references that may antagonize jurors, that does not reflect a mental defect that prevents self-representation. State v. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893, 99-1198. Except when charges have been filed in a closely-related case derived from the same factual predicate, the 6th amendment right to counsel is offense specific and attaches to a particular offense only after adversary proceedings are commenced. The 6th amendment does not prohibit the interrogation of a defendant in regard to a murder in the absence of counsel retained in a bail jumping case. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943. In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913, 00-2138. An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of the person’s petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.