Opinion
Supreme Court No. 123, 2000 K95-12-029 — 0294I-R1
August 29, 2000
Superior Court in and for Kent County, IK96-10-0247-R1
REPORT OF FINDINGS UPON REMAND
This 29th day of August, 2000, upon remand of this matter to this Court, the Court finds as follows:
1. On August 15, 2000, the Court held a hearing to receive evidence concerning the defendant's contention that his trial counsel failed to consult with him about the possibility of taking an appeal after he was convicted by a jury in Superior Court. In a Rule 61 motion the defendant claims that he was denied effective assistance of counsel because his trial counsel never consulted with him concerning an appeal. The evidence at the hearing consisted of testimony from James W. Garvin, Jr., Esquire, and the defendant, and two exhibits. Mr. Garvin was the defendant's trial counsel. The gist of Mr. Garvin's testimony was that he did discuss an appeal with the defendant, both at the end of the trial and immediately after sentencing. Mr. Garnett testified that Mr. Garvin never discussed an appeal with him at all. Based upon my evaluation of the evidence, including the credibility of the witnesses, I must reject Mr. Garnett's testimony that an appeal was never discussed; and I make the following findings of fact.
2. Mr. Garvin was and continues to be an attorney working in the Public Defender's office. He was assigned to represent Mr. Garnett on charges pending in Superior Court. Mr. Garnett was charged with burglary and related offenses. The first time that Mr. Garvin actually met Mr. Garnett was at a final case review during the week prior to the scheduled trial date. Mr. Garvin's late entry into the case is explained by the fact that he was the third attorney assigned to represent Mr. Garnett. For reasons unknown to Mr. Garvin, the representation by the first two attorneys had not worked out. When Mr. Garvin attempted to discuss the case with Mr. Garnett on the day of the case review, Mr. Garnett would not engage in any substantive discussion. For example, when Mr. Garvin tried to talk with the defendant about whether the defendant planned on testifying at trial, the defendant wouldn't give him a responsive answer. When Mr. Garvin asked him what he would say if he did testify, Mr. Garnett wouldn't say. He gave answers to the effect that Mr. Garvin would have to wait and see. The conversation between Mr. Garnett and Mr. Garvin that day was not hostile or unfriendly; Mr. Garnett was just not inclined to have any meaningful discussion about the case for reasons which he kept to himself. He did not seem interested in having any relationship with his attorney. At that case review Mr. Garvin gave the State's plea offer to the defendant, but the defendant was not interested in the plea. Mr. Garvin informed the judge presiding over the case reviews that he was having difficulty communicating with his client, and the judge continued the trial for a month. In the meantime Mr. Garvin spoke with the defendant's mother to see if she could be of assistance in discussing the case, but she was not helpful.
3. Another final case review was held in the week before the rescheduled trial date. Again Mr. Garvin attempted to discuss the case with Mr. Garnett, but the defendant remained noncommittal. By this time Mr. Garvin had concluded that it would be very difficult to win the case, and in view of the fact that the defendant would be a habitual offender with a mandatory life sentence if convicted, he recommended that the defendant consider the State's plea offer. The plea offer was to twenty years at Level V. The defendant remained uninterested in accepting the plea offer but again would not elaborate. The second case review ended much the same way as the first — with Mr. Garvin talking to the defendant but the defendant not talking back in any substantive way.
4. On the morning of trial the defendant appeared with an uncle of his named John Scott. Mr. Scott identified himself as a minister who did counseling work at Delaware Correctional Center. He acted as an advisor for the defendant and as a go between for the defendant and the Mr. Garvin. Although the uncle was of some help, there was still little communication and the defendant would not disclose to the attorney any views as to what their defense should be, other than that the State's witnesses were lying. After the State rested, a recess was taken and Mr. Garvin, the defendant and the uncle talked privately. Mr. Garvin asked whether there was anything that they wanted him to present, and they replied no. The defendant indicated that he would not be taking the stand. The defense rested without presenting any evidence. The defendant and the uncle seemed to be content that the jury would conclude that the State's witnesses were lying.
5. While the jury was still deliberating, Mr. Garvin talked to the defendant about an appeal in the event of a guilty verdict. He informed the defendant that there was a right to appeal and the defendant should start thinking about it. He discussed the likelihood of success of an appeal, specifically that a successful appeal was not likely. He explained that there did not seem to be much to appeal, that they had presented nothing upon which an appeal could be based. He explained that the jury's decision on the credibility of the State's witnesses was not something that could be successfully appealed. He explained that there did not seem to be any grounds for a meritorious appeal. He explained the procedure under Supreme Court Rule 26(c) in laymen's terms. The defendant made no comment in response to what the attorney was saying.
Apparently the State left its plea offer open through the trial and even after the jury began its deliberations.
6. Immediately after the defendant was sentenced, Mr. Garvin again brought up the subject of an appeal. At some point as Mr. Garvin was discussing an appeal the defendant said "I don't want you to do anything," or words to that effect. Mr. Garvin then asked the defendant whether he wanted a transcript ordered, to which Mr. Garnett again replied "I don't want you to do anything for me," or words to that effect. Mr. Garnett's demeanor was emphatic, and the conversation of an appeal ended on that note. Counsel could not recall whether he advised the defendant of the number of days within which an appeal must be filed, because the defendant "shut it off so fast." Mr. Garnett considered filing an appeal anyway, but had reservations of the propriety of doing so in view of the defendant's statements that he didn't want Garvin to do anything for him.
In summation, at the hearing held August 15, 2000, counsel for the defendant argued that trying to discuss an appeal with the defendant in the few moments that he was being led from the podium in the courtroom after receiving sentence was not a sufficient time to discuss an appeal. However, I do not infer from the testimony that the discussion on that occasion was limited to a few moments in the courtroom. Defense counsel are routinely afforded an opportunity to talk with their incarcerated clients after sentencing either in the basement holding cell in the courthouse basement or in some other suitable location in the building.
7. No appeal was filed. Mr. Garnett testified that he did not consider post-trial options until about eight months later.
8. Based upon this record I conclude that Mr. Garvin did consult with the defendant concerning an appeal. Consultation means "advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes." In this case defense counsel, having determined that there did not seem to be any grounds for appeal, explained to the defendant why he did not believe that there were any meritorious grounds for an appeal. He also explained to the defendant why the defendant's complaint — that the State's witnesses were lying — was not something that could be successfully appealed. He also explained in laymen's terms the procedure under Rule 26(c). While counsel's advice concerning the likelihood of success of an appeal was given in the negative, there are going to be cases, and this appears to be one, where it is difficult to see how that can be avoided. Counsel never advised the defendant not to appeal, and he explained that an appeal could be filed notwithstanding counsel's view that an appeal lacked merit. I find that in the context of the particular facts of this case, defense counsel did advise the defendant about the advantages and disadvantages of taking an appeal and did make a reasonable effort to discover the defendant's wishes.
Roe v. Flores-Ortega, 120 S.Ct. 1029, 1035 (2000).
9. I further find that counsel acted reasonably when he interpreted the defendant's statements, "I don't want you to do anything for me," as meaning that the defendant did not want counsel to file an appeal. Since the defendant's statements came in response to counsel's bringing up the subject of an appeal, it is difficult to arrive at any other conclusion.
10. A claim of ineffective assistance of counsel must take into account the reasonableness of counsel's conduct based upon the facts of the particular case. Defense counsel in criminal cases are frequently confronted with puzzling, inconsistent or unreasonable conduct on the part of defendants. Counsel must nonetheless act reasonably in evaluating the defendant's wishes and desires in each case and in exercising professional judgment accordingly. In a different case, under different circumstances, an attorney acting reasonably might conclude that some additional or follow-up contact with the defendant was necessary in order to be assured that he had discovered the defendant's true wishes. In the context of this particular case, I find that counsel was entitled to take the defendant at his word when the defendant stated "I don't want you to do anything for me."
Roe, 120 S.Ct. at 1034.
10. NOW, THEREFORE, IT IS ORDERED that the Prothonotary shall forthwith transmit this order to the Clerk of the Supreme Court of Delaware.