Opinion
ID No. 0312019673.
Submitted: March 9, 2007.
Decided: June 28, 2007.
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
Renee L. Hrivnak, Deputy Attorney General, Wilmington, Delaware 19801.
Emil Watson, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaware 19977. Pro se.
ORDER
On this 28th day of June 2007, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. Emil Watson, ("Defendant"), has filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"), to which the State has responded. For the reasons set forth below, Defendant's Motion for Postconviction Relief is DENIED.
2. On August 17, 2004 a four-day trial commenced with the Defendant acting as his own counsel and resulted in the Defendant being found guilty of Trafficking in Cocaine; Possession with the Intent to Deliver a Narcotic Schedule II Controlled Substance; Use of a Vehicle for Keeping Controlled Substances; Conspiracy Second Degree and Possession of Drug Paraphernalia. Based on the Defendant's criminal history, the State filed a motion to declare Mr. Watson a habitual offender. Mr. Watson then requested counsel to assist him in the sentencing phase, which this Court granted. On March 11, 2005, Mr. Watson was sentenced as a habitual offender.
3. Thereafter, Mr. Watson, through appellate counsel, appealed to the Supreme Court of Delaware on the following grounds: 1) the trial court erred by denying his motion to suppress; 2) the trial court erred by not sua sponte advising the jury to disregard the testimony of two police officers that Mr. Watson referred to Ms. Clayton as "just a piece of ass" and 3) that the Court unlawfully sentenced Mr. Watson as a habitual offender. The Defendant's appeal was denied and a mandate was issued on December 16, 2005.
Ms. Clayton was in the vehicle with the Defendant at the time the police stopped the Defendant, and she testified on behalf of the State at Mr. Watson's trial.
4. Consequently, on November 13, 2006, the Defendant filed this timely pro se motion for postconviction relief (the "motion"). Mr. Watson's motion asserts claims for insufficient evidence, abuse of discretion by the Court and ineffective assistance of counsel. Specifically Mr. Watson argues:
a) the Court failed to appoint a different defense attorney causing Mr. Watson to proceed pro se;
b) the Court did not allow testimony of the State's witness to be read back to the jury upon their request during deliberation;
c) the Court allowed inadmissable hearsay;
d) the State produced insufficient evidence to establish constructive possession of cocaine;
e) the State produced insufficient evidence to establish the Defendant's intent to aid or facilitate the principle conduct and
f) ineffective assistance of appellate counsel.
The Court addresses the Defendant's six assertions below.
5. Prior to delving into the merits of a postconviction relief claim, the Court must first determine that the motion meets the procedural requirements of Rule 61(i), which sets forth a number of reasons this Court must bar relief without considering the merits of the claim. Most applicable to Mr. Watson's case is Rule 61(i)(3), which states as follows:
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is hereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
Super. Ct. Crim. R. 61(i)(3).
6. Here, Mr. Watson has failed to assert any of the above-enumerated claims in his direct appeal. As a result, these claims are barred unless Mr. Watson can establish cause for relief and prejudice pursuant to Rule 61(i)(3)(A) and (B), or in the alternative, put forth a "colorable claim that there was a miscarriage of justice" or a claim that the Court lacked jurisdiction over the matter at trial, pursuant to Rule 61(i)(5). The Defendant fails to put forth any of the above exceptions with respect to claims (b) through (e), and as a result they are hereby barred and this Court will not review these claims on the merits. However, with respect to Mr. Watson's remaining two claims, the Defendant has overcome the procedural bars, and the Court will therefore review those two claims on their substantive merits.
State v. Mundy, 2001 WL 914022 (Del.Super.Ct.) ("an `adequate review' in a postconviction setting is limited indeed and is not a substitute for a direct appeal. Rather, the motion allows for a collateral attack on a conviction or sentence and for this reason, there are procedural safeguards that prevent substantive review of meritless claims.") (citations omitted).
7. First, Mr. Watson asserts that the Court abused its discretion by "forcing" him to proceed pro se because the Court would not provide him with a different public defender. More specifically, Mr. Watson is asserting that his Sixth Amendment right to counsel was violated. The Court will address this claim on its merits because it is a "colorable claim that there was a miscarriage of justice because of a constitutional violation," and therefore the procedural bars of Rule 61(i) are not applicable.
State v. Condon, 2003 WL 1364619, *2 (Del.Super.Ct.) ("[W]hen a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.").
8. A criminal defendant may represent himself at trial, so long as the decision to do so was knowing, intelligent and voluntary. Despite being warned and advised several times by the Court of the dangers and risks of choosing to proceed to trial without counsel, Mr. Watson opted to exercise his right to self-representation. Upon review of record, the Court is satisfied that Mr. Watson made the decision to proceed as his own counsel voluntarily, knowingly and intelligently.
State v. Red Dog, 1991 WL 190474 (Del.Super.Ct.), citing Faretta v. CA, 422 U.S. 806 (1975). See also, Riley v. State, 2004 WL 2850093 (Del.Super.Ct.).
9. On July 20, 2004 a suppression hearing was held during which time Mr. Bayard, Mr. Watson's court-appointed attorney, first advised the Court of the disagreements between counsel and Defendant. At that time, the Court gave Mr. Watson two options: proceed with Mr. Bayard or proceed pro se. Mr. Watson chose to be represented by Mr. Bayard for the suppression hearing. At the conclusion of the hearing, Mr. Bayard alerted the Court that his client wished to again raise the issue of an attorney-client discord, and the Court instructed the Defendant to file a motion if he wished to request self-representation.
Namely, Mr. Watson wanted to call Laraisha Banner, who was also in the car with the Defendant at the time of the police stop, to the stand during the suppression hearing, and Mr. Bayard strongly opposed that strategy.
Suppression Hr'g Tr. vol. 1, 4-7 (July 20, 2004).
Id. at 7.
Suppression Hr'g Tr. vol. 2, 6 (July 20, 2004).
10. Accordingly, seven days later, Mr. Watson filed a motion to proceed pro se in which he indicated Mr. Bayard had not provided the Defendant with copies of certain Rule 16 documents to assist in his defense and insisting he would not receive a fair trial with Mr. Bayard's assistance due to constant conflict. As a result, on the morning of Mr. Watson's trial, the Court addressed Mr. Watson's motion to proceed pro se. In light of the motion, the Court again advised Mr. Watson that representing himself was not a wise decision, that he would be required to comply with all the court rules, and that he cannot decide to proceed pro se and then argue on appeal that he did not understand the rules or procedures. Responding to the Court's warning, Mr. Watson informed the Court that his counsel had not been communicating with him. This statement caused the Court to offer Mr. Watson time to meet with Mr. Bayard that same day to work out any differences so that the Defendant could retain his assistance for trial. After Mr. Watson declined that option, the Court again asked Mr. Watson if he understood the requirements he would face should he represent himself, and Mr. Watson assured the Court he understood. After providing the Defendant several warnings regarding the dangers of self-representation, the Court was satisfied that Mr. Watson's decision was made knowingly, voluntarily and intelligently and the Court granted Mr. Watson's motion. Because these events occurred on morning of trial, the Court requested that Mr. Bayard remain in the courtroom throughout the trial to act as standby counsel and to assist the Defendant if the Defendant requested.
Trial Tr. vol. 1, 3-7 (August 17, 2004).
Id. at 8-9.
Id. at 9.
Id. at 9-11.
Id. at 10-12.
11. Mr. Watson now argues his decision to proceed pro se was not voluntary, and this Court disagrees. While a defendant does have the right to representation, "a defendant does not have a constitutional right to a `meaningful relationship' with his public defender," nor does a defendant have the right to chose which public defender will represent him, unless there is a conflicting interest within the case. Further, a conflict of interest does not mean that counsel disagrees with the defendant on how to proceed with the case, which is the only conflict Mr. Watson asserts.
Austin v. State, 2001 WL 898621, *2 (Del.Super.Ct.).
Red Dog, 1991 WL 190474 at *4; Austin, 2001 WL 898621 at *2. (A defendant does "not have a right to counsel who would not disagree with him about how to proceed with his case."); Moore v. State, 268 A.2d 875 (Del. 1970) (The defendant chose to represent himself at trial and complained on appeal that he was not provided counsel of his choice. The Court, upon determining no conflict of interest existed, appropriately stated: "The Public Defender's Office has been created by the General Assembly to preserve to indigent defendants their constitutional rights to assistance of counsel in criminal cases. An indigent defendant may not decline the services of the Public Defender, and expect the appointment by the Court of other counsel, unless the Public Defender represents some other conflicting interest in the case. Such was not the situation here. The appellant chose to go to trial acting as his own attorney. Having lost his case, and having had the questionable privilege of choosing himself for attorney, he cannot change his mind now about the wisdom of the choice.").
12. On at least two occasions the Court clearly advised the Defendant of the risks and possible consequences of proceeding without counsel, and Mr. Watson had ample time to weigh his options. By choosing to move forward unrepresented, Mr. Watson must live with the consequences of his choice, and now that he was unsuccessful at trial, he cannot expect this Court to allow him another bite at the apple. As a result, Mr. Watson's first claim is denied.
Wei v. State, 571 A.2d 788. (citations omitted). ("A defendant who appears pro se at trial has no right to appeal on the ground that his own performance was ineffective. . . . Ignorance of legal process is not a defense.").
In addition, the Defendant asserts that had he been provided counsel, that counsel would have challenged the permissibility of the traffic stop which started this investigation. However, a motion to suppress was filed by counsel, a hearing on the matter was held by this Court and the matter was reviewed by the Delaware Supreme Court on appeal.
13. Second, Mr. Watson asserts his appellate counsel failed to raise the above issue of an alleged violation of Mr. Watson's right to counsel on direct appeal. Ineffective assistance of appellate counsel claims cannot be asserted on direct appeal, thus those claims overcome the procedural bars set forth in Rule 61(i) and are appropriate for a postconviction motion. Grounds for appeal are left to the discretion of counsel who should determine which grounds will likely prevail. As indicated above, Mr. Watson's claim of a Sixth Amendment violation fails. The record indicates Mr. Watson chose to go forward as his own counsel and chose to release his court-appointed attorney. As a result, Mr. Watson's appellate counsel acted reasonably in not asserting such claim on appeal and Mr. Watson was not prejudiced by that decision. Accordingly, Mr. Watson's final claim also fails.
State v. Redding, 2006 WL 1148833, *2 (Del.Super. Ct), citing Younger, 580 A.2d at 554.
State v. Wilson, 2003 21524696, *5 (Del.Super.Ct.).
14. For the foregoing reasons, Mr. Watson's Motion for Postconviction Relief is hereby denied.
IT IS SO ORDERED.