Opinion
Cr. No. 0308001824.
Submitted: February 2, 2004.
Decided: February 3, 2004.
Report to the Delaware Supreme Court upon remand Concerning Appellant's Motion to Proceed pro se
Appellant Johnas Ortiz seeks to proceed pro se in his appeal of a September 13, 2004 conviction for violation of probation. In a January 12, 2004, Order, the Supreme Court instructed this Court to conduct a hearing to determine whether Ortiz's choice to proceed without counsel is knowing and voluntary. The Court conducted a hearing, in which Ortiz testified, on February 2, 2005. It is the Court's opinion that Ortiz's decision to pursue his appeal pro se is knowing and voluntary. The Court makes the following findings of fact and conclusions of law, following the numbering used in the Supreme Court's Order:
1. Ortiz has not retained private counsel for this appeal. Ortiz is indigent within the meaning of Supreme Court and Superior Court Criminal Rules. He is incarcerated and has no income or assets except for small, occasional gifts of money from his family.
2. Ortiz understands his right to court-appointed counsel, and indeed already has such counsel. Ortiz is relatively well educated; he graduated from high school, trade school, and various technical training courses. He also has some college credits. He is reasonably familiar with the criminal justice system and has filed pro se motions regarding other charges. He is modestly articulate and has no difficulty conveying his reasons for proceeding pro se. He is aware that he must either accept his current counsel or pursue his appeal pro se.
3. Ortiz has a simple reason for wishing to dismiss his court-appointed counsel. Ortiz testified that his counsel informed him that he (the lawyer) could find no good faith basis to file an appeal, and was planning to withdraw from the case pursuant to Supreme Court Rule 26(c). Rather than having a hearing about why his appeal is groundless and whether his lawyer should be permitted to abandon it, thereby (in Ortiz's opinion) predisposing the Justices against his appeal, Ortiz prefers to argue the case himself. At the hearing, Ortiz offered this explanation in a rational fashion.
As instructed, the Court makes the following additional findings regarding Ortiz's decision:
a. Ortiz has not consulted with anyone besides his court-appointed attorney regarding this decision.
b. Ortiz understands that appellate practice involves difficult rules of procedure. He is adamant that, with the infinite time an incarcerated man has at his disposal, he will be able to follow them. Ortiz was not moved by the Court's efforts to dissuade him from this belief.
c. Ortiz knows he must comply with Supreme Court Rules and, again, was not dissuaded by the Court's suggestion that he would be unable to do so.
d. Ortiz realizes that procedural failures on his part will delay or prejudice his appeal.
e. Ortiz realizes that, as a pro se litigant, he will likely not be granted oral argument during his appeal. The Court explained that this means he will be limited to pleading his case in writing.
f. Ortiz realizes that he will not be able to delay his appeal to secure court-appointed counsel. The Court warned Ortiz that this effectively means that, if granted permission to proceed pro se, he would not be able to later change his mind. Ortiz is sure that he wishes to dismiss his counsel anyway.
g. This Court further inquired why Ortiz wanted to dismiss his counsel, and was given the reason stated ante. Ortiz would not divulge any other reasons, explaining that he did not want to reveal them until arguing his appeal.
Given these findings, it is this Court's conclusion of law that Ortiz's choice to pursue his appeal pro se, even if not the wisest decision, is at least a rational one, and is knowing and voluntary.