Opinion
Nos. 424/427, 2000.
Submitted: March 26, 2001
Decided: May 11, 2001
Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr.A. Nos. IN96-09-1119, 1122 and IN96-09-1795
Before VEASEY, Chief Justice, WALSH, and HOLLAND, Justices.
ORDER
This 11th day of May 2001, upon consideration of the briefs of the parties, it appears to the Court that:
(1) In July 1997, a Superior Court jury convicted Nikkeray Middlebrook of Attempted Murder in the First Degree, Assault in the First Degree, and three weapon offenses. Middlebrook was represented at trial by an Assistant Public Defender. Following his conviction, Middlebrook retained different counsel to represent him at sentencing and for the purpose of filing post-trial motions. On June 12, 1998, Middlebrook was sentenced to 38 years in jail to be suspended after 37 years for one year of probation. On June 23, 1998, Middlebrook, through his privately retained counsel, filed a motion for a new trial asserting, among other things, that the Assistant Public Defender who represented him at trial had been constitutionally ineffective. The Superior Court denied that motion but left open the opportunity for Middlebrook to renew the motion by providing more specific information. On November 17, 1998, the Superior Court denied Middlebrook's renewed motion for a new trial.
Middlebrook never filed a direct appeal to this Court from his convictions or sentences.
(2) Beginning in November 1999, Middlebrook filed several pro se motions and letters with the Superior Court seeking to obtain a copy of his trial transcript and requesting the appointment of counsel to represent him for purposes of pursuing a postconviction petition under Superior Court Criminal Rule 61. In January 2000, the Superior Court reappointed Middlebrook's trial counsel to represent him for purposes of a Rule 61 motion. In May 2000, Middlebrook filed his Rule 61 motion pro se, asserting that both his trial counsel and his privately-retained counsel were ineffective for failing to file a direct appeal on his behalf. The Superior Court directed both attorneys to respond to Middlebrook's pro se motion. Neither attorney acknowledged responsibility for filing a direct appeal on Middlebrook's behalf.
(3) In July 2000, Middlebrook filed another pro se motion requesting a certificate of reasonable doubt. The Superior Court denied the certificate but again re-appointed Middlebrook's trial counsel to represent Middlebrook, "at least with respect to the issues that should have been raised on direct appeal."
The Superior Court further stated, "Once the issues that should have been raised on direct appeal are addressed, the Court will take up any remaining Rule 61 issues." On August 21, 2000, without ruling specifically on any of the claims contained in Middlebrook's Rule 61 motion, the Superior Court resentenced Middlebrook for the purpose of allowing him to pursue a direct appeal.
Underlying the Superior Court's order is the presumption that Middlebrook had received ineffective assistance of counsel. The Superior Court noted, however, that it was "unclear" which attorney had rendered ineffective assistance.
Nonetheless, the Public Defender again was reappointed to represent Middlebrook for all purposes including the timely filing of an appeal.
(3) Middlebrook filed a notice of appeal pro se, and the State filed a notice of cross-appeal from the Superior Court's resentencing order. Although the Public Defender later filed a formal notice of appeal on Middlebrook's behalf, Middlebrook, not surprisingly, filed a motion to dismiss counsel and to proceed pro se on appeal. At the time Middlebrook filed his motion to dismiss counsel, the Clerk of this Court had not yet received the trial record from the Superior Court. Thus, the history of Middlebrook's issues with respect to his trial counsel were not apparent to this Court at the time we remanded the matter back to the Superior Court for an evidentiary hearing on Middlebrook's motion to proceed pro se.
(4) In our order remanding this matter back to the Superior Court, we instructed the Superior Court, among other things, to inform Middlebrook that "he must either accept representation on appeal by his present court-appointed counsel or proceed pro se." Having now had the opportunity to consider the briefs on appeal as well as the trial court record, we conclude that the instructions contained in our remand order were incomplete in light of the apparent conflict Middlebrook had with the Public Defender's office.
Consequently, we find, in the interest of justice, that this matter must be remanded to the Superior Court to grant Middlebrook the option of having substitute counsel appointed to represent him on appeal.
(5) On remand, if the Superior Court finds that Middlebrook desires the assistance of substitute court-appointed counsel to assist him on appeal, then it should enter an order appointing counsel who will be permitted the opportunity to brief this matter once it is returned from remand. If Middlebrook continues to waive his right to counsel on appeal, then this matter will be resubmitted for decision on the basis of the previously-filed briefs once the matter is returned from remand.
NOW, THEREFORE, IT IS ORDERED that this matter is REMANDED to the Superior Court for further proceedings consistent with this order. The Superior Court shall make such findings and issue such orders as it deems appropriate and shall report back to this Court within 30 days.