Opinion
Cr. ID No. 0202014548.
Date Submitted: July 14, 2003
Date Decided: August 6, 2003
Court Below: Superior Court in and for New Castle County in Cr. A., No. IN02-03-0668 and IN02-03-0669 Supreme Court Case No. 247, 2003.
Upon Appellant's Motion to Proceed Pro Se Upon Appeal to the Supreme Court of Delaware. FINDINGS AND CONCLUSIONS.
Mark Bunitsky, Esquire, Department of Justice, 820 N. French Street, Wilmington, Delaware, for the State.
John Edinger, Esquire, Dawn Miello, Esquire, Office of the Public Defender, 820 N. French Street, Wilmington, Delaware.
Corrie Joyner, Pro Se, Delaware Correctional Center, Smyrna, Delaware.
ORDER
This 6th day of August, 2003, the Supreme Court of Delaware having remanded this matter to this Court for the sole purpose of conducting a hearing to determine if the defendant, Corrie Joyner ("Mr. Joyner"), has made a knowing and voluntary decision to waive representation and to represent himself before the Supreme Court of Delaware, it appears to the Court that:
See Joyner v. State, No. 247, 2003, Berger, J. (Del. July 14, 2003) (ORDER).
1. Mr. Joyner was convicted and sentenced in this Court for First Degree Murder and Possession of a Firearm during the Commission of a Felony. He filed a timely notice of appeal with the Supreme Court of Delaware and then filed an affidavit pursuant to Supreme Court Rule 26(d)(iii) in which he expressed his desire to represent himself on appeal. By order dated July 14, 2003, the Supreme Court of Delaware remanded the matter to this Court and directed the Court to conduct a hearing with Mr. Joyner to determine whether his decision to proceed pro se has been made knowingly and voluntarily.
2. The Court conducted the hearing on July 24, 2003. After placing Mr. Joyner under oath, the Court, guided by Watson v. State, questioned him at length regarding his decision to discharge his court-appointed counsel and represent himself on appeal.
564 A.2d 1107 (Del. 1989) (providing a recommended line of inquiry to determine if decision to proceed pro se on appeal was knowing and voluntary).
Findings of Fact
3. Mr. Joyner has not retained private counsel. He indicated that his family has approached private counsel but has not yet secured the funds to engage private counsel. Mr. Joyner understands that the proceedings before the Supreme Court of Delaware will not be delayed as he continues in his efforts to retain private counsel. And, in the event his efforts to retain private counsel fail, he unequivocally expressed his desire to represent himself rather than continue with court-appointed counsel.
4. Mr. Joyner is indigent and remains eligible for the services of the Public Defender. Mr. Joyner understands that he continues to have a right to court appointed counsel. He further understands that he cannot choose his court-appointed counsel; in this case, his trial attorneys would serve as his counsel on appeal.
5. The Court discussed with Mr. Joyner at some length his reasons for electing to proceed pro se on appeal. He continues to believe that his trial counsel did not adequately represent him, particularly in the pretrial phase of the proceedings. He believes they failed adequately to investigate the case and to secure the presence of witnesses at trial who would be helpful to his defense. He is concerned that he will receive inadequate representation on appeal as well.
This was not the first time the Court had discussed such issues with Mr. Joyner. After trial, but prior to sentencing, Mr. Joyner advised the Court that he wished to discharge his court appointed counsel and represent himself at sentencing. The Court discussed this decision with Mr. Joyner and ultimately determined that the decision was made knowingly and voluntarily. Accordingly, the Court allowed Mr. Joyner to represent himself at sentencing but appointed trial counsel as "stand by" counsel. After sentencing, the Court re-appointed trial counsel to represent Mr. Joyner on appeal with the understanding that Mr. Joyner would likely seek to represent himself there as well.
6. Mr. Joyner knows that the appellate process involves the application of rules of procedure that may be difficult for a non-lawyer to follow or understand. He also knows that the he will be expected to follow the rules and that his failure to do so will adversely delay his appeal and, if egregious or persistent, may even result in the dismissal of an otherwise meritorious appeal. He feels confident, however, that he will be able to follow the rules and adequately present his arguments in the form required by the rules.
7. Mr. Joyner consulted with his mother and other family members prior to making his decision to represent himself at sentencing and then again when deciding to represent himself on appeal. According to Mr. Joyner, everyone with whom he has consulted has endorsed his decision.
8. The Court explained to Mr. Joyner that there are several disadvantages to proceeding pro se, including the fact that he will lose the opportunity to present oral argument to the Supreme Court in support of his arguments. He understands these disadvantages but believes he can overcome them.
The Court's colloquy followed Watson but also went beyond the inquiry recommended there when deemed appropriate. For instance, while the Court resisted the urge to attempt directly to dissuade Mr. Joyner from proceeding pro se, the Court did take pains to emphasize the disadvantages of self-representation. See State v. Williams, 1999 Del. Super. LEXIS 628 at *6 (after the Watson colloquy the court noted "while the Court did not directly attempt to dissuade Appellant from appearing pro se on appeal, the Court pointed out ways the Appellant's self-representation will be to his disadvantage."). In addition to the procedural complexities and the likelihood that oral argument would not be available to him, the Court also explained to Mr.
9. Mr. Joyner is a high school graduate who has earned some college credits from Widener University. The Court's observations reveal that he is a bright young man who is quite capable of expressing himself clearly and articulately. He has determined that he will have access to the Supreme Court Rules and other necessary papers and resources at the Delaware Correctional Center. He has committed to read the rules carefully in advance of submitting his briefs to the Supreme Court. His trial counsel have committed to supply him with trial transcripts and other materials from their files.
10. Notwithstanding his education and general intelligence, it is clear that Mr. Joyner has no experience with the appellate process and, beyond this trial, has virtually no experience with the criminal process.
11. Mr. Joyner understands that if the Supreme Court of Delaware accepts his waiver of counsel, he will not be permitted to interrupt or delay the appellate proceedings in order to secure private counsel or court-appointed counsel. Mr. Joyner further understands that once the decision to allow him to waive counsel is Joyner how appellate counsel could assist him in identifying potential appellate issues and in presenting them most effectively to the appellate court.
made, the matter will be scheduled for disposition in accordance with the Supreme Court rules and he will be expected to comply with that schedule.
Conclusions of Law
12. Mr. Joyner clearly enjoyed a broad right of self-representation at trial. The right is not as well-settled when the request to proceed pro se comes on appeal. Nevertheless, Delaware courts traditionally have extended the right of self representation to the appellate process when it is determined that the defendant has made his decision knowingly and voluntarily.
See Faretta v. California, 422 U.S. 806 (1975).
See Gomez v. Collins, 993 F.2d 96, 97 (5th Cir. 1993)("There is no clearly defined standard regarding a state criminal appellant's constitutional right to waive court-appointed counsel and to proceed pro se at the appellate level.").
See e.g. Watson, 564 A.2d at 1109; Shelton v. State, 1994 Del. LEXIS 156 (ORDER).
13. In this instance, the Court is satisfied that Mr. Joyner has made a knowing and voluntary decision to represent himself. He is a smart man. He understands the consequences of his decision, has considered them, and has determined that he can follow the rules and present a cogent argument to the Supreme Court. His decision has not been coerced in any way. He has freely exercised his best judgment, after consultation with family, and has concluded that he can do a better job than his court appointed counsel. He understands the risks of going forward without counsel. Right or wrong, the decision to waive court-appointed counsel has been made knowingly and voluntarily.
At the conclusion of the hearing, the Court indicated to the parties that it had determined that Mr. Joyner has made a knowing and voluntary waiver of court-appointed counsel. The Court also noted that in its written findings it would be recommending that trial counsel be appointed as "stand-by"counsel on appeal as had been done for the sentencing phase of the proceedings in this Court. Upon reflection, however, the Court has concluded that such a recommendation would exceed the scope of the remand in this case. Whether to appoint "stand-by"counsel is a decision better left to the Supreme Court of Delaware after it determines the appropriate disposition of the request to waive court-appointed counsel.