Opinion
I.D. No. 0406018386.
Submitted: May 31, 2007.
Decided: July 20, 2007.
Upon Defendant's Motion for Postconviction Relief.
DENIED.
Stuart E. Sklut, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Angelo Clark, Smyrna, Delaware, pro se.
ORDER
This 20th day of July 2007, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. Defendant was indicted on three counts of Rape Second Degree, arising from an incident on May 7, 2004 at the Rockford Center near Newark, Delaware, where Defendant and the victim were both patients. On May 26, 2005, Defendant pled guilty to one count of Rape Fourth Degree before another judge of this Court. A presentence investigation was ordered.
2. Immediately prior to sentencing on September 30, 2005, the State informed the Court that the mother of the victim would like to address the Court. After confirming the identity of the victim's mother, and realizing, for the first time, that there was a connection (described below) between the sentencing judge and the victim's mother, the Court asked to speak to counsel at sidebar where the following discussion took place:
THE COURT: I did not realize until right now that . . . the mother of the victim, is my wife's oncologist for periodic breast cancer examinations. I don't know [her] myself, but I had to ask if it was her.
MR. SKLUT: She is an oncologist.
MR. TEASE: Your Honor, I personally have no problem with that, but Your Honor is probably thinking about whatever you want to do.
MR. SKLUT: Would the Court be more comfortable hearing from [the victim's father]?
THE COURT: No. At this point, it doesn't really matter. I believe under the Los v. Los standard, I can be objectively impartial, as well as subjectively impartial. I think the connection I have, via my wife, to [the victim's mother] is sufficiently remote and professional that it would not impact on my ability to issue a fair sentence. Does defense have any comment?
MR. TEASE: I have no objection to that at all. I know the Court has already read the presentence report and heard argument.
UNIDENTIFIED ATTORNEY: I'm here no behalf [of the victim's parents] so my thoughts are meaningless on this issue.
MR. SKLUT: No objection.
THE COURT: Please proceed.
595 A.2d 381 (Del.) (setting forth a two-part (objective and subjective) test to determine when a judge should recuse himself or herself).
Sentencing Hearing Tr. 3-4 (Sept. 30, 2005).
Defense counsel did not confer with Defendant before advising the Court that defense counsel had no objection to proceeding to sentencing by the undersigned judge.
Tease Aff., D.I. 39.
3. Although the State's recommendation contained in the plea agreement was for three years at Level 5, Investigative Services recommended a ten year prison sentence. The Court sentenced Defendant to fifteen years at Level 5, suspended after ten years for two years at Level 4, suspended after six months for eighteen months at Level 3. Defendant filed a motion for sentence modification through counsel, which this Court denied on February 10, 2006.
Sentencing Hearing Tr. 13.
Prior to imposing the sentence the Court noted that:
You have had a — you have a terrible record that goes back to at least 1974 as an adult. And as you yourself have said, you spent much of your time, much of your adult life in jail. And you do have significant problems. I recognize that. Mental-health problems, particularly. In fact I think they're acute. I think you have very, very serious problems.
But that having been said, your conduct was absolutely reprehensible. There was no excuse for it whatsoever. Nobody should be put through that kind of ordeal and a person can be especially vulnerable when in a psychiatric facility, as was the case here. . . .
But the bottom line is, and the recommendation of Investigative Services that I agree with is that a 10-year sentence needs to be imposed.
4. Defendant then filed this pro se motion for postconviction relief on August 1, 2006. His first two grounds for relief, which allege defects in his guilty plea, have been denied by the judge who took the plea. Defendant's remaining ground for relief, addressed in this decision, alleges that "[t]rial [c]ounsel should have forced the trial judge to recuse himself from the case at bar due to a conflict of interest, in being friendly with the victim[']s family."
State v. Clark, 2007 WL 284172 (Del.Super.) (holding that Defendant "failed to demonstrate that he was denied effective assistance of counsel in conjunction with his guilty plea").
Def. Mot. for Postconviction Relief, D.I. 32, at 1.
5. To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. Furthermore, when evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Stickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Id. at 689.
6. Defendant asserts that counsel erred by not conferring with him about the disqualification issue. However, Defendant has not demonstrated that if counsel had consulted with him, the outcome of the proceeding would have been any different. The transcript of the sidebar discussion at sentencing shows that the Court believed it was subjectively and objectively impartial. There is no certainty, had defense counsel consulted with Defendant about this issue, that Defendant would have in fact requested that defense counsel move for the sentencing judge's disqualification. Moreover, even if Defendant had convinced counsel to move to disqualify the sentencing judge, the Court would not have granted the motion.
As both the State and defense counsel point out, they believe that had Defendant received the sentence recommended in the plea agreement, he would not have raised the disqualification issue. Tease Aff., D.I. 39, at 2 (noting that "my opinion of the discussion was that the defendant would not have had any issue with the sentence if it was in the agreed upon range"); State's Resp., D.I. 44, at 2 (stating that "the State believes, had the Defendant `liked' the sentence handed down, there would have been no issued raised").
7. Pursuant to Canon 3(C)(1) of the Delaware Judges' Code of Judicial Ethics "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned. . . ." When faced with a claim of bias or prejudice under Canon 3(C)(1), a judge must engage in a two-part analysis. First, the judge must, "as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party." Second, even if the judge believes there is no bias, "situations may arise where, actual bias aside, there is the appearance of bias sufficient to cause doubt as to the judge's impartiality." However, although a judge has a duty to recuse when required, a judge also has a duty not to recuse unnecessarily.
Los v. Los, 595 A.2d 381, 384-85 (Del. 1991).
Id. at 385.
See Delaware Judges' Code of Judicial Conduct, Canon 3(A)(2) ("A judge should hear and decide matters assigned, unless disqualified. . . ."); Los, 595 A.2d at 385 ("In the absence of genuine bias, a litigant should not be permitted to "judge shop" through the disqualification process."); Reeder v. Delaware Dept. of Ins., 2006 WL 510067, at *17 (Del.Ch.) ("[I]t is also recognized that judges who too lightly recuse shirk their official responsibilities, imposing unreasonable demands on their colleagues to do their work and risking the untimely processing of cases"); Judicial Ethics Advisory Committee ("JEAC") 1997-4 (October 20, 1997) ("Thus judicial economy and administrative inconvenience also militate against disqualification.").
9. In this case, the alleged bias arose from the fact that the sentencing judge's spouse was an occasional patient of the victim's mother. The sentencing judge did not otherwise know the victim's mother. The judge concluded that he was both subjectively and objectively impartial, as required by Los v. Los. "A judge's mere incidental and relatively insignificant contact with a potential witness should not cause a reasonable person to question that judge's impartiality." A reasonable person would not question the Court's impartiality due to its minimal and remote connection to the victim's mother and therefore recusal was not warranted in this case.
JEAC 1997-4 (October 20, 1997) (advising that judicial disqualification was unnecessary where a prospective witness was a painting subcontractor that was completing work in the judge's home).
See Downes v. State, 2006 WL 2380752, at *1 (Del.Supr.) (holding that where the trial judge allegedly frequented a restaurant owned by the family of a murder victim that "a personal relationship between the Superior Court judge and the victim's family, in and of itself, is insufficient to establish a disqualifying bias").
10. The Court also notes that any recusal of the undersigned judge occurring at the very time of Defendant's scheduled sentencing would have necessarily resulted in the rescheduling of the sentencing, presumably causing further stress and anxiety to the victim, the victim's family, and possibly to others present in the courtroom for this sentencing.
11. Because Defendant cannot demonstrate that result of the sentencing proceeding would have been different had his counsel conferred with him, the Court need not address the second Strickland prong. Threrefore, Defendant's motion for postconviction relief is DENIED.
The Court thus need not reach the issue of whether defense counsel was required to consult with his client on the recusal issue. See generally, Wayne R. LaFave, et al., Criminal Procedure § 11.6(a) (2d ed. 1999) (discussing when counsel has an obligation to consult with the defendant).
IT IS SO ORDERED.