Opinion
Superior Court Criminal ID No. 0609011528A.
Submitted: March 20, 2008.
Decided: April 10, 2008.
Upon Defendant's Motion to Proceed Pro Se , upon appeal to the Delaware Supreme Court, Findings and Conclusions.
Supreme Court No. 471,2007Augustus H. Evans, Jr., Wilmington, DE.
David Hume, IV, Esquire, Department of Justice, Georgetown, DE, for the State.
Abby Lynn Adams, Esquire, Department of Justice, Dover, DE, for the State.
Bernard J. O'Donnell, Esquire, Office of the Public Defender, Wilmington, DE.
MEMORANDUM OPINION UPON REMAND
Augustus H. Evans, Jr., represented himself at a jury trial occurring in Superior Court in and for Sussex County in 2007. The jury convicted Mr. Evans for possession of a firearm during the commission of a felony, aggravated menacing, resisting arrest, and assault in the second degree.
At sentencing, the Superior Court determined Mr. Evans was an habitual offender and sentenced him to a total of seventy-two (72) years.
Mr. Evans filed a pro se appeal to the Delaware Supreme Court. Subsequently, he requested that he have counsel represent him. That was done; but Mr. Evans has subsequently advised the Supreme Court that he wishes to proceed pro se. By Order of March 17, 2008, the Supreme Court of the State of Delaware remanded the case to the Superior Court for the sole purpose of an evidentiary hearing concerning the request of Mr. Evans to proceed pro se.
The evidentiary hearing took place on April 9, 2008. Counsel from the Public Defender's Office and the Attorney General's Office were present.
At the hearing, Mr. Evans displayed a hostile and disrespectful attitude to the Court. Nevertheless, a sufficient colloquy took place between the Court and Mr. Evans as to his desire to represent himself.
Mr. Evans explained he disagreed with the appellate counsel for the Public Defender's Office as to which issues should be prosecuted in the appeal. Specifically, he disagreed with the strategy of not making an ineffective assistance of counsel claim on direct appeal.
Mr. Evans was made aware that counsel may be in a better position to advise him objectively as to what his best arguments might be on appeal.
Understanding that disagreements concerning appellate strategy did not create a conflict of interest triggering the appointment of other counsel, he elected to proceed pro se.
He has no funds to retain private counsel. He has a 12th grade education, and he is familiar with the criminal justice system and the trial process. Again, he represented himself concerning the charges which resulted in his conviction and present appeal.
He did not give the Court a straight answer as to whether or not he consulted with any other person as to his decision to waive his right to counsel.
He understood that the appellate process involved the application of rules and procedures which may be difficult for a non-lawyer to follow and understand.
He understood that notwithstanding his lack of legal training, he would be required to comply with all pertinent rules of the Supreme Court.
He understood that non-compliance with the rules of the Supreme Court could delay and prejudice his appeal. He understood that the allowance of oral argument by the Supreme Court is discretionary with the Supreme Court, and the usual practice in criminal cases is that the Supreme Court does not grant oral argument to pro se litigants.
He understood that if the waiver of counsel is accepted, he will not be permitted to interrupt or delay the appellate process by changing his mind and seeking the assistance of court-appointed counsel. The Defendant is sincere in his desire to represent himself. He is aware of the dangers and consequences of self-damage to his appeal. He advises that his appeal is ready for the mail.
Therefore, I conclude that 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.