Opinion
I.D. No. 9412010717
Submitted: October 26, 2001
Decided: November 26, 2001
On Public Defender's Motion to Withdraw as Counsel. Granted. On Defendant's Motion for Appointment of Private Counsel: Denied.
Paul R.Wallace, Esquire, Deputy Attorney General
Aaron R. Goldstein, Esquire, Assistant Public Defender
Dear Counsel and Mr. Kendall:
Mr. Goldstein filed a motion to withdraw as the public defender and counsel for Mr. Kendall in the above captioned-matter. The Public Defender argues that the Court's order of April 16, 1997 which appointed a public defender to represent Mr. Kendall regarding restitution issues goes beyond the statutory authority of 29 Del. C. § 4602(a) and (b). Specifically, that statute declares that the Public Defender shall represent indigent defendants who are "under arrest" or "charged with a crime." The court determined that Mr. Kendall was indeed indigent; however, Mr. Kendall was sentenced in February 1997. Once sentenced, the defendant was no longer under arrest or charged with a crime, but convicted and serving the appropriate sentence for that conviction. To require the Public Defender to represent Mr. Kendall beyond sentencing in this case would be beyond the scope of the statute. Accordingly, the Court will rescind its April 16, 1997 order appointing the Public Defender to represent the Defendant on the restitution issues in this case.
Mr. Kendall has subsequently filed a motion to have counsel appointed if the Court grants the Public Defender's motion, claiming defendant would be deprived of due process. The Supreme Court of Delaware has held that an indigent defendant shall not have an automatic right to counsel, but such a right shall be determined on "an individual case basis." Black v. Division of Child Support Enforcement, Del. Supr., 686 A.2d 164 (1996). In Gagnon v. Scarpelli, 411 U.S. 778 (1973), the Supreme Court declared that if the State seeks a punishment less than incarceration, the appointment of counsel may not be required. The Court must decide, however, whether the
defendant should receive counsel as a matter of fundamental fairness. Black at 165. The Court should err on the side of the indigent, when such matters are difficult to determine. Id. In the case at hand, the defendant's liberty is not threatened. It was clear at the time of sentencing that restitution would be ordered, but that the amount of restitution would be determined at a later date. That later date has not yet happened, four years after the sentencing. Mr. Kendall has been represented by Joseph Hurley, Esquire and by the Public Defender at various times since his sentencing, but motions filed by the defendant have procedurally delayed resolution of the amount he owes his victims.
This Court must determine whether defendant has a right to counsel for the sole purpose of representation at the restitution hearing. The outcome of that hearing will not deprive the defendant of any liberty interest. Upon conviction, the defendant was aware that he would be required to pay restitution. A further hearing on that matter merely clarifies an aspect of the sentencing. The hearing, itself, is not required by the Court, but has been so ordered to protect the defendant's right to present evidence as to what he owes. This court sees no issues of due process or fairness in relation to the defendant's lack of counsel at the hearing he is requesting. No counsel will be appointed.
Therefore, the Public Defender's Motion to Withdraw as Counsel is Granted and the Defendant's Motion for Appointment of Private Counsel is Denied. Commissioner Vavala shall begin the scheduling of a Restitution Hearing in this case between the Pro Se Defendant and the State.
IT IS SO ORDERED.