Opinion
Supreme Court No. 132, 2001
Date Submitted: May 3, 2001
Date Decided: May 25, 2001
Upon defendant's motion to proceed pro se upon appeal to the Delaware Supreme Court, FINDINGS AND CONCLUSIONS.
John Williams, Esquire, for the State; and John F. Brady, Esquire.
MEMORANDUM OPINION
On June 19, 1997, the defendant entered a Rule 11(e)(1)(C) guilty plea to reckless endangering in the first degree, possession of a deadly weapon by a person prohibited and harassment. His sentence was a total of eight and one half years, after serving one year without the right of early release, the balance was suspended for probation.
On August 28, 1998, the probation was violated and the defendant received 90 days level 5 followed by probation.
On March 2, 2001, the defendant again violated his probation. On the reckless endangering charge, he received 9 months incarceration with credit from January 25, 2001, balance suspended and then discharged as unimproved. On the weapons charge, he received 3 years suspended upon completion of the Key Program, followed by the level 4 Crest Program and then level 3 probation. On the harassment charge he received 6 months which is suspended for level 3 probation if he completes the Key Program. On another charge of escape he received 18 months suspended for level 3 probation if he completes the Key Program.
The defendant was represented on March 2, 2001 by John F. Brady, Esquire. Mr. Brady appealed this Court's sentence. The defendant reported to the Supreme Court that he desired to represent himself.
By order of May 3, 2001, the Supreme Court remanded the case to Superior Court for an evidentiary hearing concerning the defendant's request to proceed pro se as on his appeal.
On May 16, 2001, the hearing took place. Mr. Brady was present.
Initially, the defendant requested time to have a witness available. Upon questioning the defendant, I am satisfied the desire to have the witness was for a matter concerning the merits of the violation, not the pro se issue.
The defendant reported that he was not satisfied with his attorney's performance at the violation of probation hearing. He thought he could do a better job then his attorney. He understands that as an indigent person he was entitled to an attorney but that he had to accept the attorney appointed to represent him (i.e. he could not pick his attorney). He understands that he can accept his present court appointed attorney or proceed pro se. He was clear that he preferred to proceed pro se.
The defendant has two years of college. While he has experience in the criminal justice system, he is not comfortable proceeding pro se, but nevertheless desires to do so.
He has not consulted with anyone else as to his desire to proceed pro se.
He understands that the appellate process involves the application of rules of procedure and substantive law that may prove difficult for him to follow and/or understand.
He understands that he would be required to follow the rules of the Supreme Court and that failure to do so could jeopardize his appeal or delay action on his appeal.
He understands oral argument is not a right and knows the practice is that pro se litigants in criminal cases usually do not get the opportunity of oral argument.
He understands he cannot interrupt or delay the appeal process if he is granted the right to proceed pro se, but then changes his mind.
Discussion took place with the defendant about the dangers of being pro se. "He who represents himself, has a fool for a client" was reviewed with the defendant.
The defendant is sincere in his desire to represent himself He desires to voluntarily discharge Mr. Brady and proceed pro se. He is aware of the dangers and consequences of self-inflicted damage to his appeal.
I conclude that the defendant's decision to proceed pro se, if permitted by the Supreme Court is made knowingly, voluntarily and intelligently. He should be permitted to invoke his right of self-representation.
IT IS SO ORDERED.