Opinion
Supreme Court No. 368, 2002
October 25, 2002
I.D. # 0104008674
FINDINGS OF FACT AND CONCLUSIONS OF LAW PURSUANT TO SUPREME COURT RULES 19(c) AND 26(d)(iii)
This 25th day of October, 2002, upon the remand of this matter by order of the Supreme Court on September 19, 2002 to the Superior Court pursuant to Supreme Court Rules 19(c) and 26(d)(iii), it appears that:
I. BACKGROUND
1) Defendant Kevin J. Gargan (Defendant) was convicted in Superior Court on February 21, 2002 of Forgery 2nd Degree (two counts) and of Theft (Felony-Senior) and was sentenced June 14, 2002 as to the Theft charge (Cr.A. No. IN01-04-0970), 10 months at Level 5; as to the Forgery 2nd Degree charge (Cr.A. No. IN01-04-0977), 1 month at Level 5; as to the Forgery 2nd Degree charge (Cr.A. No. IN01-04-0979), 1 month at Level 5.
2) At trial, Defendant was represented by Assistant Public Defender Brian J. Bartley, Esquire. Defendant has filed an appeal to the Supreme Court and in connection with that appeal has filed an affidavit with that Court on July 16, 2002, in which he states that he "wish[es] to discharge my attorney and represent myself in this appeal," notwithstanding his constitutional and statutory rights to counsel in connection with his appeal to the Delaware Supreme Court. The matter has been remanded to this Court for a hearing on the record for appropriate findings to be made concerning Gargan's request to proceed pro se, consistent with Watson v. State, 564 A.2d 1107 (Del. 1989). The hearing was conducted on October 16, 2002. Gargan was present at the hearing.
II. FINDINGS OF FACT
3) Defendant has not retained private counsel to represent him on appeal.
4) Defendant maintains that he cannot afford a lawyer and that he has no assets. Being presently incarcerated, he is not employed. He previously qualified for representation by the by the Office of the Public Defender. The Court is satisfied that he is an indigent person given the prior presentence investigation and the effect of the sentences imposed upon his ability to earn income.
5) Defendant understands that he has a right to court-appointed counsel on appeal.
6) Defendant advised that he completed two years of college.
7) Defendant's familiarity with the criminal justice system is as a defendant represented by various counsel on various occasions. He has participated in the criminal justice system as a defendant in at least two trials. His extensive prior criminal record is set forth in the presentence investigation.
8) Defendant is eligible to be represented by appointed counsel, but elects to proceed pro se. He understands that his alternative is to be represented on his appeal by Assistant Public Defender Bernard J. O'Donnell. Defendant does not wish O'Donnell to represent him because he is not satisfied with O'Donnell's communications with him to this point and believes that he will have more success on the appeal by proceedingpro se rather than by having O'Donnell represent him.
At the hearing, Defendant never explicitly and unequivocally stated that he wished to proceed pro se on appeal. Rather, he stated that he now only seeks to proceed pro se because his appointed counsel will not advance arguments in the direct appeal of his conviction that Defendant wants to be raised, i.e., his claim of ineffective assistance of counsel at the trial level. Defendant contends that he is being "forced" to proceed pro se because of the perceived "injustice" of having appointed counsel who refused to argue the theories he now advances. Defendant repeated many times at the hearing on October 16, 2002, that he would like counsel to represent him on appeal, but that appellate counsel would have to advance Defendant's requested arguments about ineffective assistance of trial counsel. This Court repeatedly advised Defendant that he had to choose between proceeding pro se or accept representation by court-appointed counsel, with the understanding that court-appointed counsel would only make such arguments on appeal that that attorney thought were appropriate to make. This Court advised Defendant that Defendant could not ultimately control or decide what arguments were to be raised on appeal if counsel was appointed to represent him; however, Defendant, at the hearing, continually insisted on his right to instruct his court-appointed attorney as to the arguments Defendant wants to make on appeal.
9) Defendant advises that he has not consulted with other persons in making this decision to proceed pro se.
10) Defendant understands that the appellate process involves the application of rules of procedure which may be difficult for a non-lawyer to follow and understand.
11) Defendant understands that, notwithstanding his lack of legal training, he will be required to comply with all pertinent rules of the Supreme Court.
13) Defendant understands that the allowance of oral argument is discretionary with the Supreme Court and that the Supreme Court's practice in criminal cases is not to grant oral arguments to pro se litigants.
14) Defendant understands that, if his waiver of counsel is accepted, he will not thereafter be permitted to interrupt or delay the appellate process to secure the assistance of court-appointed counsel simply because he has changed his position on acceptance of court-appointed counsel.
III. CONCLUSIONS OF LAW
15) Defendant is competent to waive his constitutional and statutory rights to assistance of counsel on appeal.
16) In considering the fact that Defendant would not unequivocally and explicitly state that he wished to proceed pro se on appeal, and the fact that Defendant continually insisted on his right to control what arguments his court-appointed attorney would make on appeal despite the Court's repeated admonition that Defendant could not ultimately control or decide what arguments were to be raised on appeal if counsel was appointed to represent him, the Court notes that a "knowing" and "voluntary" waiver:
does not mean . . . that a court may not, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation. A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver [of the right to assistance of counsel] and another course of action [such as being represented by court-appointed counsel] as long as the choice presented to him is not constitutionally offensive. That . . . [the defendant] did not particularly like the choice presented to him and that he did not want to proceed pro se are not sufficient reasons to render the choice constitutionally offensive.McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981) (citations omitted). The Court also notes that the right of a criminal defendant to appointed appellate counsel "does not justify the assertion of patently frivilous claims. . . ." Smith v. Commonwealth, Bd. of Prob. Parole, 574 A.2d 558, 563 (Pa. 1990). Here, O'Donnell has represented that he perceives no merit at all in advancing on direct appeal Defendant's requested argument of ineffective assistance of trial counsel. Applying the above principles, the Court concludes as a matter of law that Defendant has knowingly and intelligently waived his right to appointed counsel.
NOW, THEREFORE, IT IS ORDERED that the Prothonotary shall forthwith transmit the within "Findings of Fact and Conclusions of Law" to the Clerk of the Supreme Court of Delaware.