Opinion
Case No. 93S04997DI
Date Submitted: August 7, 2001
Date Decided: August 21, 2001
Upon defendant's motion to proceed pro se upon appeal to the Delaware Supreme Court, FINDINGS AND CONCLUSIONS. Cr. Action No. S93-09-0571, S95-03-0344, S99-09-0414. Supreme Court No. 223, 2001.
Ruth M. Smythe, Esquire, Georgetown, Delaware, attorney for defendant; David Hume, IV, Esquire, Georgetown, Delaware, for the State; Wayne A. Jones, pro se, Sussex Correctional Institution, Georgetown, Delaware.
MEMORANDUM OPINION
Wayne Jones (defendant) is 35 years old. He attended Seaford High School and completed the ninth grade. Thereafter, Mr. Jones received a GED while incarcerated at the Delaware Correctional Center in 1997. After release, he took a paralegal course at Delaware Technical and Community College in Georgetown. Although only attending several weeks, Mr. Jones learned legal research skills.
When first appearing on the probation violation, he requested court appointed counsel. At that time, the violations were contested. Defendant faced imprisonment should the violations be established with his criminal record. Mr. Jones was, and remains, indigent, being unable to hire private counsel. Consequently, the Public Defender's Office was notified to represent him.
Thereafter, defendant was represented by appointed counsel. On April 16, 2001, Mr. Jones admitted violating conditions 3, 5 and 7 of his probation: failure to keep office appointments with his probation officer, neglect to report employment changes within 72 hours, and testing positive for cocaine use. Adverse findings were not entered on other charges (conditions 10 and 13 regarding terminating employment and a curfew violation). Sentencing was deferred pending completion of a report from the Treatment Access Service Center (TASC).
At sentencing on May 4, 2001, a different public defender represented the defendant. After considering the position of the parties, including the recommendation of a TASC report, Mr. Jones received a two (2) year Level 5 sentence on Criminal Action No. S99-09-0414, suspended after completion of the Key Program for the Level 4 Crest Program with Aftercare. Suspended Level 5 sentences were imposed on Criminal Action Nos. S93-09-0571 and S95-03-0344.
In the Supreme Court appeal, the Public Defender's Office continued its representation. A briefing schedule was established with the opening brief due on September 4, 2001. An extension was granted for medical reasons. Thereafter, Mr. Jones asked to proceed pro se and filed an affidavit under Supreme Court Rule 26(d)(iii) on July 20, 2001. The affidavit expressed his desire that an evidentiary hearing be held in the Superior Court to determine whether the request to proceed pro se on appeal is intelligently and voluntarily based. The Supreme Court remanded the case to consider the question. A hearing was held on Tuesday, August 7, 2001.
As a preliminary observation, the defendant admitted three violations of the terms of his probation. His criminal record was acknowledged. The principal question concerned whether the restrictive Key/Crest regimen was appropriate. Mr. Jones desired outpatient treatment while released in the community. The sentencing decision was straight-forward. Given the admissions and criminal record, this may well be "the precise type of case in which the Supreme Court found that counsel could not make a constructive contribution to the probation proceedings." Jones v. State, Del. Supr., 560 A.2d 1056, 1059 (1989). Fundamental fairness would not seem to require court appointed counsel as the case evolved.
It appears that Mr. Jones was also a litigant in the cited case.
Nonetheless, should that right exist, Mr. Jones has waived it. This decision was expressed adamantly. It was also knowingly and intelligently made. The defendant was not under the influence of alcohol or drugs. Mr. Jones was not pressured, coerced or improperly influenced. To paraphrase the defendant, his decision reflected a "strategic" disagreement.
In this regard, the defendant questions whether the TASC report should override a private provider's view about appropriate treatment. Counsel does not feel this is a tenable ground of appeal. Mr. Jones insists on raising the point, along with others, with which his lawyer disagrees.
The defendant decided to represent himself without consulting anyone. He had access to the prison law library. At the hearing, he volunteered information about Supreme Court rules (e.g., that oral argument is not held in pro se cases). Mr. Jones has represented himself before in a remand from the Delaware Supreme Court. He tried a civil jury trial in the United States District Court for Delaware.
Although unsuccessful in these efforts, the defendant wants to proceed alone in this case. Mr. Jones is familiar with the criminal process, expressing knowledge of habeas corpus and postconviction relief procedures. His proposed Supreme Court brief is "ready to go."
Concerning the challenges pro se litigants face, Mr. Jones understood that the procedures are difficult for non-lawyers to follow, and that no leeway is given to lay persons. He understood that no other lawyer would be appointed. Moreover, he understood that the appeal process will not be interrupted or delayed, failure to follow rules is troublesome, and his choice was irrevocable. The importance of the appeal was emphasized and understood given prison exposure.
Ultimately, Mr. Jones wanted to control his future. His right of self-representation must be respected. Under the totality of the circumstances, the defendant knowingly, intelligently and voluntarily waived his right to court appointed counsel (should one exist), and has invoked his right to self-representation. Watson v. State, Del. Supr., 564 A.2d 1107 (1989).
IT IS SO ORDERED.