Opinion
ID No. 9510020980 No. 152, 2000
March 26, 2001
Findings on Remand
Now this 26th day of March, 2001, upon remand from the Supreme Court for factual findings, after a hearing on January 29, 2001, and upon review of the transcripts of that hearing and the original plea in this case, the Court finds as follows:
(1) On March 14, 1997 defendant Wayne Thomas, represented by David Facciolo, Esquire, of the Office of Public Defender, entered a plea of guilty to First Degree Robbery, Second Degree Attempted Robbery, two charges of Possession of a Firearm during the Commission of a Felony, Possession of Cocaine and Second Degree Assault.
(2) The Plea entered was pursuant to Rule 11(e)(1)(C) and capped the maximum prison sentence to be imposed at 8 years level V time followed by level IV, level III and level II, community sanctions. The defendant ultimately was sentenced in accord with the Plea Assessment.
(3) The plea agreement reached resolved four sets of pending criminal charges against Mr. Thomas. Those charges had he been convicted of all charges, would have resulted in a minimum of 34 years incarceration at level V, with a maximum far in excess of that number.
(4) At the time of the Plea in March of 1997, Mr. Facciolo had informed Mr. Thomas that he had represented a co-defendant in one of the sets of charges pending against Thomas. That case was not the set of drug charges that was to go to trial the following week in March 1997.
(5) Mr. Facciolo testified at the evidentiary hearing that he had discussed with Mr. Thomas the fact that he would have difficulty cross examining the co-defendant, Pierre Carter, should that burglary — robbery case go to trial at some date in the future on account of his prior representation of Mr. Carter.
(6) At the time of the Plea negotiations it was the strategy of Mr. Facciolo to get the best possible plea offer for his client that would resolve all of the pending sets of charges against him.
(7) Of critical importance on the day of the plea was the fact that the charges pending trial the next week, carried a maximum mandatory term of incarceration of fifteen (15) years on one charge of possession with intent to deliver. No actual or potential conflict of interest precluded Mr. Facciolo from representing Mr. Thomas on these charges at trial.
(8) At the time of the plea, Mr. Facciolo was no longer representing Mr. Carter, the co-defendant.
(9) Mr. Facciolo at the time of the plea negotiations was actively representing only Mr. Thomas' interests. He advised him that should the case involving Mr. Carter go to trial, he would have to seek appointment of conflict counsel for that trial.
(10) There is absolutely nothing to suggest that the conflict in representing Mr. Carter previously in any way adversely affected counsel's representation of Mr. Thomas in the plea negotiations.
(11) The record established at the hearing and evident from the original plea colloquy demonstrated that Mr. Facciolo provided extra-ordinary dedication and interest in obtaining the best possible plea for Mr. Thomas. He was familiar with Mr. Thomas from prior representation and fought for his client's best interest in a difficult situation.
(12) Mr. Thomas who had no difficulty expressing his displeasure with representation of previous attorneys on his numerous charges indicated at the plea colloquy that he was satisfied with Mr. Facciolo's representation.
(13) Mr. Facciolo was faced with going to trial on serious drug charges with a significant mandatory sentence the week following this plea. The State was going to withdraw the plea offer if it was not accepted. Mr. Facciolo was able to cap the defendant's level V time at less than 25% of the minimum he was facing if convicted of all the charges.
(14) It was clear that all Mr. Facciolo was considering at the time of this plea negotiation was the best interest of his client Wayne Thomas.
(15) Mr. Thomas at the evidentiary hearing denied that Mr. Facciolo informed him of the Pierre Carter representation; but he did remember discussing what Carter would testify to about the burglary and robbery charges in which they were both defendants. It should be noted that Mr. Thomas did not even remember that he was also charged in a fourth indictment with assault in a detention facility. It is clear he remembered the discussions of possible sentences.
(16) Mr. Thomas acknowledged that the determining factor in his decision to plead guilty was the amount of time he was facing otherwise.
(17) There is absolutely no evidence that Mr. Facciolo's previous representation of Pierre Carter in any way affected his performance in obtaining a very good plea offer for his client.
(18) There is absolutely no evidence to suggest that had Mr. Thomas been represented by other counsel his decision to accept a cap of 8 years at level V to avoid 34 mandatory years would have been different.
Wherefore the Court concludes:
(A) There was no active representation of conflicting interests by Mr. Facciolo.
(2) Mr. Facciolo's performance was in no way affected by an actual conflict of interest.
(C) Mr. Thomas in accepting a very attractive plea offer and by stating he was satisfied with counsel's representation, after being advised by Mr. Facciolo of the conflict that would exist if the Burglary Robbery charge involving Pierre Carter went to trial, waived his right to independent effective assistance of counsel on that set of charges.
(4) Mr. Facciolo performed a tough task or assignment in the highest traditions of the Delaware Bar and obtained a plea agreement that potentially saved him a minimum of 26 additional years at level V.