Opinion
I.D. No. 9911010906
Submitted: August 16, 2002
Decided: October 31, 2002
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF DENIED.
Joseph M. Bernstein, Esquire, Attorney for Defendant.
Marsha J. Epstein, Esquire, Deputy Attorney General, New Castle County, State of Delaware, Attorney for the State of Delaware.
ORDER
Marla C. Garris ("Defendant") has filed this Motion for Postconviction Relief (the "Motion") pursuant to Superior Court Criminal Procedure Rule 61, wherein she seeks to set aside a criminal conviction on the ground that her counsel's representation was ineffective by his failure to file a timely appeal. For the reasons stated below, Defendant's Motion is DENIED.
STATEMENT OF FACTS
On September 27, 2000, the Defendant was convicted by a jury of Felony Theft in violation of Title 11, § 841 of the Delaware Code and Unlawful Use of a Credit Card in violation of Title 11, § 903(a)(1) of the Delaware Code.
Within two days of the jury's verdict, Defendant met with her trial counsel, Robert G. Carey, Esquire, on September 29, 2000. It is the substance of this meeting between Defendant and her counsel, and the precise discussion that transpired during that meeting, that has led to the filing of the instant Motion. Defendant contends that she sought the conference with counsel specifically to discuss the possibility of appealing her conviction to the Delaware Supreme Court and that counsel failed to timely file an appeal. Mr. Carey asserts that he conferred with Defendant about the possibility of pursuing an appeal, but the notion was considered and summarily "discarded." At the meeting, Defendant also asserted that she might be entitled to a new trial because several witnesses had not been called during her trial. This claim was also considered and dismissed by Mr. Carey as memorialized in a letter to the Defendant, dated October 1, 2000.
On December 15, 2000, the Defendant was sentenced by this Court. Defendant was sentenced to two (2) years Level V suspended for one (1) year, ten (10) months at Level III, after six (6) months at Level III, sixteen (16) months at Level II on the Felony Theft charge. For the crime of Unlawful Use of a Credit Card, Defendant was sentenced to one (1) year at Level V, suspended for one (1) year at Level II.
Defendant was before the Court again nine months later, on September 13, 2001, and was found to have violated her probation. The Court sentenced her to one (1) year, ten (10) months at Level IV Home Confinement. Upon payment of one-half restitution due ($2,192.67) to the victim, the sentence was to be suspended for (3) three years at Level III.
In December 2001, more than a year after the original sentence was imposed, Defendant, through counsel, Joseph M. Bernstein, Esquire, filed the instant Motion on the grounds of ineffective assistance of counsel in violation of the Sixth Amendment. The Court directed both the State and Defendant's former attorney, Robert Carey, to file responses to the Motion.
On March 27, 2002, Robert G. Carey, Esquire, filed an Affidavit with the Office of the Prothonotary pursuant to Criminal Rule 61(g)(2) responding to the factual allegations of the ineffective assistance of counsel claims.
In its Response, the State asserted that Mr. Carey's statements were ambiguous concerning whether or not Defendant had agreed with Mr. Carey's assessment that the appeal to the Delaware Supreme Court would be futile. Pursuant to Criminal Rule 61(h), the State requested that the Court hold an evidentiary hearing concerning these factual issues.
On July 22, 2002, the Court conducted an evidentiary hearing. Testimony was offered by Defendant and by Mr. Carey regarding the discussion that occurred at the September 29, 2000 meeting. Each gave their view regarding whether the issue of a potential appeal was raised and what, if any, determination, was made. Defendant and Mr. Carey have conflicting recollections regarding what was discussed at this meeting with regard to appealing Defendant's conviction. Defendant avows that she went to the meeting with a specific agenda — inquiring about a direct appeal to her conviction. Time and time again in her testimony, Defendant maintained that Mr. Carey never spoke to her on the matter of an appeal. Instead, he listened attentively and took notes. Mr. Carey, on the other hand, testified that the subject of a direct appeal was summarily discussed and abandoned for lack of meritorious grounds.
What is uncrontroverted is the fact that Defendant supplied Mr. Carey with a newly updated list of witnesses whom she believed would shed some new light on her case. Defendant and Mr. Carey also concur that the principal focus of the meeting was an evaluation of whether the newly updated list of potential witnesses, not previously called to testify on Defendant's behalf, would support a motion for a new trial. Mr. Carey memorialized his legal opinion on this matter to the Defendant in his October 1, 2000 letter. The Court has reviewed a copy of this letter, wherein Mr. Carey clarified that filing a motion for a new trial based on newly discovered evidence would meet with little success.
On July 26, 2002, Defendant filed her Memorandum in Support of Motion for Post-Conviction Relief. In response, on August 16, 2002, the State filed its Memorandum in Opposition to Defendant's Motion for Post-Conviction Relief.
STANDARD OF REVIEW
Under Delaware law, when considering a Motion for Postconviction Relief, this Court must first determine whether the Defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of Defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, Del. Super. C.A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (Mem. Op.) (citing Younger, 580 A.2d at 554 (Del. 1990)).
Claims for relief must be brought within three years of the conviction becoming final. Defendant's motion was filed approximately fifteen (15) months after her conviction, thus avoiding the bar of Rule 61(i)(1). As this is Defendant's initial motion for postconviction relief, the bar of Rule 61(i)(2), which precludes consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred unless consideration of the claim is warranted in the interest of justice." The "interest of justice exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant]." Defendant's sole ground for relief — ineffective assistance of counsel — was not formerly adjudicated. Therefore, Rule 61(i)(4) is also inapplicable as a bar to Defendant's claim for relief.
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Rule 61(i)(3) contains another bar, by providing that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default, and (B) [p]rejudice from violation of the movant's rights." Defendant's claim was not raised at the plea, sentencing, or on a direct appeal, therefore, it is barred by Rule 61(i)(3), absent a demonstration of cause for relief from the default and prejudice. Defendant's contentions are based on ineffective assistance of counsel. Therefore, she has alleged cause for her failure to have raised this issue earlier. Rule 61(i)(3) does not bar relief as to this claim at this juncture should the Defendant demonstrate that her counsel was ineffective and that she was prejudiced by counsel's actions.
Lastly, the procedural bars of Rule 61 may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraphs (1), (2), and (3) shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal."
Younger, 580 A.2d at 555.
An allegation of ineffective assistance of counsel is a type of claim not subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal unless the claim was adequately raised in the lower court. To prevail on her claim of ineffective assistance of counsel, the Defendant must fulfill the two-prong test of Strickland v. Washington.
See Supr.Ct.R. 8; Wright v. State, 513 A.2d 1310, 1315 (Del. 1986); Harris v. State, 293 A.2d 291, 293 (Del. 1972).
Strickland v. Washington, 466 U.S. 668 (1984); Larson v. State, Del. Supr., No. 200, 1994, 1995 WL 389718, Hartnett, J. (June 23, 1995) (ORDER) (accord); Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (accord); Albury v. State, 551 A.2d 53, 58 (Del. 1988) (accord).
First, a criminal defendant who raises an allegation of ineffective assistance of counsel must show that counsel's representation fell below an objective standard of reasonableness. The defendant must demonstrate that counsel's performance was deficient. This entails demonstrating that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Further, it is the defendant's burden to show, under the totality of the circumstances, that "counsel was so incompetent that the accused was not afforded genuine and effective legal representation."
Strickland, 466 U.S. at 688.
Id. at 687.
Id.
Renai v. State, 450 A.2d 382, 384 (Del. 1982) (citations omitted).
Second, under Strickland, a defendant must show that there is a reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different; that is, she must show actual prejudice. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." The defendant must illustrate that the deficient performance prejudiced the defense. Stated another way, a defendant alleging prejudice must be able to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland, 466 U.S. at 694.
Id. at 687.
Id.
Id.
Righter v. State, 704 A.2d 262, 264 (Del. 1997); Younger, 580 A.2d at 556; Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
A defendant's burden to establish a claim of ineffective assistance of counsel is difficult since there is a strong presumption that the attorney's conduct was professionally reasonable. This standard is highly demanding. In fairly assessing an attorney's performance, the standards enumerated in Strickland require that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Defendant must also "[o]vercome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Therefore, under Strickland, the Court's analysis must be comprised of two components: 1) whether defense counsel's performance was deficient; and 2) if so, whether the deficient performance resulted in prejudice that "so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict rendered suspect."
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689); see also Larson, supra at 4; Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Flamer, 585 A.2d at 754.
Strickland, 466 U.S. at 689.
Id.
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
DISCUSSION
In support of her claim of ineffective assistance of counsel, the Defendant contends that Mr. Carey failed to timely file an appeal of her conviction pursuant to the requirements imposed on an attorney set forth in Supreme Court Rule 26. Rule 26 provides:
(a) Continuing Obligation of and Representation by Counsel.
(1) Every trial attorney, whether privately retained, court appointed or provided by the Office of the Public Defender, shall in every case in which the client has been convicted or adjudged delinquent; and (2) every attorney appointed by the trial court to represent a criminal defendant or juvenile at State expense in postconviction proceedings shall in every case in which postconviction relief is denied.
(i) Advise Client. Advise the client of any right to appeal, the possible grounds for appeal and counsel's opinion of the probable outcome of an appeal;
(ii) Docket Appeal. Docket an appeal whenever the client desires to appeal, whether or not the appeal appears meritorious; and
(iii) Prepare Documents. Prepare and file all documents relating to the appeal, including those relating to the transcript as required by Rule 9.
Such attorney, until this Court orders otherwise, shall continue to represent the client on appeal.
Supr.Ct.R. 26.
Delaware law is well settled regarding the obligations of an attorney to advise a client of the right to appeal, the necessity to docket the appeal, and to prepare the necessary documents whenever the client desires an appeal. In Braxton v. State, the defendant argued that he was denied effective assistance of counsel because a timely appeal was not filed on his behalf and on account of other actions his counsel took or failed to take in Superior Court. Upon review, the Delaware Supreme Court upheld the Superior Court's finding that the attorney `knew, or should have known, of the need to lodge an appeal within the jurisdictional period.' The Superior Court indicated that "this failure (and only this failure) amounted to ineffective assistance of counsel." The Supreme Court found that the defendant's opportunity to appeal was lost in spite of defendant's desire to appeal, and the loss resulted from a violation of the defendant's right to effective representation.
Braxton v. State, 479 A.2d 831 (Del. 1984); Eley v. State, Del. Supr., No. 42, 2000, 2000 WL 275593, Walsh, J., (Feb. 29, 2000) (ORDER); Proctor v. State, Del. Supr., No. 147, 2001, 2001 WL 823745, Walsh, J., (June 6, 2001) (ORDER).
Braxton, 479 A.2d at 833.
Braxton, 479 A.2d at 833 (citing Erb v. State, 332 A.2d 137 (Del. 1974)).
Id. at 833.
Id. at 834.
Subsequent Delaware Supreme Court decisions have reaffirmed the obligations of trial counsel to advise a client of the right to appeal, to docket the appeal, and to prepare the applicable documents. In Dixon v. State, the defendant's attorney did not fulfill his obligation as trial counsel by failing to file a timely appeal after the defendant had instructed him to do so. Although counsel asserted that the defendant had failed to pay additional fees for representation on appeal, the Court held that, "[t]rial counsel (whether appointed, privately retained or Public Defender, it matters not) has a duty to docket an appeal if the client wants to appeal." In Eley v. State, the defendant informed his counsel at sentencing that he wished to take an appeal from his conviction but his attorney failed to timely file the appeal. Despite trial counsel's claims that the defendant's grounds for appeal were not meritorious and would place him in violation of Rule 3.1 of the Delaware Lawyer's Rules of Professional Conduct, the Court reaffirmed the principle that "[i]t is beyond dispute that a defendant's trial attorney has a duty to take appropriate steps to perfect a direct appeal if the defendant wants to appeal. The attorney is required to file the appeal whether or not the attorney believes the appeal to be meritorious."
Dixon v. State, 581 A.2d 1115, 1115 (Del. 1990) (emphasis added).
Id. at 1116.
Eley v. State, Del. Supr., No. 42, 2000, 2000 WL 275593, at *1, Holland, J. (Feb. 11, 2000) (ORDER) (emphasis added).
Id. (citing with approval Dixon, 581 A.2d at 1116).
Id. (citing Supr.Ct.R. 26(a)(ii)).
In Proctor v. State, the Court once again emphasized an attorney's duty to follow the wishes of his client and to perfect a direct appeal if the client wants to appeal and makes this wish known to counsel. The issue revolved around the defendant's failure to initially file a timely pro se appeal. In that case, the evidence was conflicting as to whether the defendant had informed his counsel of his desire to file a notice of appeal, but the Court found that the defendant had manifested his intent to docket a direct appeal despite its untimeliness.
Proctor v. State, Del. Supr., No. 147, 2001, 2001 WL 823745, at *1, Holland, J. (July 18, 2001) (ORDER) (emphasis added).
Id. (emphasis added).
The remedy for a violation of a defendant's right to appeal under Rule 26, as mandated by the Delaware Supreme Court in Braxton, is to remand the case to the Superior Court for determination, under Rule 61 postconviction relief proceedings, of any contentions which could have been raised in a timely appeal and which had not already been ruled upon by the Court. The alternative remedy sometimes imposed by the Delaware Supreme Court is to remand the case to the Superior Court for resentencing to renew the time to file a direct appeal.
Braxton, 479 A.2d at 834; see also Proctor, 2001 WL 823745 at *1; Dixon, 581 A.2d at 1117; Fullman v. State, 1988 WL 188441 at *2, Holland, J. (June 1, 1988) (ORDER); Fridge v. State, Del. Supr., No. 186, 1986, 1987 WL 36203 at *2, Holland, J. (Jan. 23, 1987) (ORDER).
Proctor, 2001 WL 823745 at *1; Eley, 2000 WL 275593 at *2.
Thus, Braxton and its progeny have unequivocally established the obligation of an attorney to file a direct appeal pursuant to Supreme Court Rule 26 when a defendant expresses the wish or desire to appeal. Although Delaware law is settled regarding an attorney's responsibility to advise a client of the right to appeal and to docket the appeal if the client desires, it is not as clear for those instances when the client has not expressly stated the desire to appeal. The rules, statutes, and case law do not directly address those situations in which a client does not clearly and/or expressly make her wish to appeal known to her counsel. Since the testimony in this case is conflicting as to whether Defendant made her desire to file a direct appeal known to Mr. Carey, the Court's review and evaluation of the testimony at the evidentiary hearing, as set forth hereafter, becomes critical in resolving this Motion and dispositive of defendant's request for relief.
See also Fullman v. State, 1988 WL 188441 at *2, Holland, J. (June 1, 1988) (ORDER) (holding that attorney's failure to communicate with client and subsequent failure to file a timely appeal contrary to his client's wishes was in violation of Supreme Court Rule 26(a)); Fridge v. State, Del. Supr., No. 186, 1986, 1987 WL 36203, Holland, J. (Jan. 23, 1987) (ORDER) (finding that attorney failed to protect defendant's right to appeal under Supreme Court Rule 26(a)(ii) when attorney neglected to file appeal contrary to defendant's wishes because attorney believed no meritorious grounds existed and because defendant did not advise trial counsel after sentencing of specific points to be raised on appeal).
As a starting point in considering the facts, it is important to note that the Defendant is obviously a well-educated individual, possessing undergraduate/bachelors degrees in early childhood education and a master's degree as well. Her former position was that of receptionist in the Office of Mayor James H. Sills Jr. According to her testimony, shortly after her conviction on September 27, 2000, she called Mr. Carey's office and left a message that she wanted to speak with him regarding taking an appeal. She scheduled a meeting with Mr. Carey as she felt that she was unjustly convicted because no witnesses had been called on her behalf.
Rule 61 Hearing Transcript, dated July 22, 2002, at 5-6 (hereinafter, "Rule 61 Hr'g Tr. at ___").
Upon review of the transcript from the evidentiary hearing, Defendant and Mr. Carey have differing recollections regarding what was discussed at the September 29, 2000 meeting with regard to appealing Defendant's conviction. What is not in dispute is that Defendant supplied Mr. Carey with a newly updated list of witnesses whom she believed would be beneficial to her case. Defendant and Mr. Carey also agree that a major portion of the meeting was devoted to an evaluation of whether the newly updated list of potential witnesses, not previously called to testify on Defendant's behalf, would support a motion for a new trial. Mr. Carey memorialized his legal opinion on this matter to the Defendant in his October 1, 2000 letter, wherein he clearly explained that he did not see "any viable basis for filing a motion for a new trial based on newly discovered evidence."
After weighing the testimony of the parties and assigning evidentiary credence to their words and conduct, the Court finds that the Defendant's testimony appears evasive at times, and is fraught with inconsistencies and dubious responses. Initially, on direct examination, Defendant stated to her attorney that she went to the meeting to discuss an appeal but that Mr. Carey never mentioned the word "appeal" to her nor did he speak to her about the concept of an appeal at any time. On cross examination, Defendant stated several times that she spoke the words "appeal" and discussed filing an appeal with Mr. Carey and his response was, ". . . based on what?" Defendant repeatedly and adamantly contends throughout her testimony that she went to the meeting with the specific intent to inquire about a direct appeal to her conviction. Yet, according to the Defendant, when she asked Mr. Carey about the concept of an appeal he just took notes and asked her questions. The Court is hard pressed to understand how Defendant, who was so undeniably and vehemently concerned with taking an appeal because she felt so unjustly convicted, would have left the meeting without having this issue ultimately resolved.
Rule 61 Hr'g Tr. at 7.
Rule 61 Hr'g Tr. at 20, 21, 23-24, 25, 26.
Rule 61 Hr'g Tr. at 7, 19, 20, 21, 23, 24-26.
Rule 61 Hr'g Tr. at 20, 21, 25.
The Court finds it even more difficult to conceive that Mr. Carey, an attorney with 35 years of criminal law experience and, who has tried approximately 50 criminal cases, would neglect to resolve the issue of an appeal with his client. At a minimum, Mr. Carey was certainly familiar with Supreme Court Rule 26(c) permitting him to file a motion to withdraw if the Defendant insisted upon filing an unmeritorious appeal, despite his legal evaluation of the unlikelihood of its success. Mr. Carey's testimony supports the Court's conclusion in this regard. When asked on direct examination by Defendant's counsel what his [Mr. Carey's] practice is under Supreme Court Rule 26 when confronted with a situation where the defendant has been convicted, Mr. Carey replied, "I usually have a meeting either immediately following the conviction or at sentencing and inform him or her that there's a right to appeal . . . [A]nd explain whether or not there's any reason on it." When asked what he would have filed had the Defendant requested that an appeal be filed on her behalf, Mr. Carey responded, "I would have filed an appeal under Rule 26 and moved to withdraw. We do it everyday. I mean, there's no reason not to if that's what the client wants."
Rule 61 Hr'g Tr. at 34.
Rule 61 Hr'g Tr. at 45, 46.
According to her testimony, Defendant was asked by Mr. Carey if she had any new information on which to base an appeal, at which point she presented the updated list of witnesses that had not been called at trial. Defendant contends that she specifically went to the meeting to speak with Mr. Carey about why the witnesses were not called, that Mr. Carey told her that they were not necessary since it was a matter of her word against the victim's word. Armed with this list of witnesses as the basis for her appeal, Defendant now contends that Mr. Carey never advised her that she could not base an appeal on not calling witnesses. Since Defendant asserts that the entire purpose for bringing the list of witnesses was to bolster her chances for an appeal, Defendant's testimony in this regard is simply not credible.
Rule 61 Hr'g Tr. at 5, 6.
Rule 61 Hr'g Tr. at 6, 7, 24, 25.
Rule 61 Hr'g Tr. at 6, 7.
When asked if Mr. Carey ever told her that, in his judgment, her appeal had no merit, the Defendant said, "Not really . . . [H]e took a lot of notes in the meeting." Later, upon cross examination, Defendant contradicted herself and became evasive, stating that Mr. Carey never advised her that there was no meritorious basis for an appeal, although what he said is reflected in his writing [referring to the October 1, 2000 letter dismissing her chances for a new trial]. Upon subsequent questioning, Defendant repeatedly dodged the issue of whether Mr. Carey ever said that her appeal had any merit, maintaining that his response to her request for an appeal was his October 1, 2000 letter. It is apparent to the Court that Defendant's intent was to attempt to confound Mr. Carey's response regarding a motion for a new trial and the issue of filing a direct appeal by distorting the questions put forth to her by the State.
Rule 61 Hr'g Tr. at 7.
Rule 61 Hr'g Tr. at 23, 24, 25.
Rule 61 Hr'g Tr. at 6, 7, 24, 25, 26.
Defendant submits that Mr. Carey misinterpreted her request to take a direct appeal, by confusing it with a motion for a new trial. As a seasoned, practicing criminal attorney, it is difficult to accept that Mr. Carey did not, at some juncture, either at the beginning, during, or after the meeting, explain to Defendant the legal distinction between a direct appeal and a new trial. The following excerpt from the transcript of the hearing is illustrative of this point:
Rule 61 Hr'g Tr. at 26.
DIRECT EXAMINATION OF ROBERT CAREY
Q. Now, do you recall Ms. Garris ever saying the word "appeal" in the meeting?"
A. My recollection is that an appeal was summarily discussed as having no merit. And the focus of the meeting was whether or not she could apply for a new trial based on these witnesses.
Q. . . . Did you explain to Ms. Garris what an appeal was and what she was asking for — was there any distinction — did you explain any distinction between taking an appeal and trying to get a new trial based on a failure to call witnesses?
A. Well, the appeal would have gone to a Supreme Court and the motion for a new trial goes back to Judge Barron.
Q. Did you explain that to Ms. Garris?
A. Summarily, that was not her focus.
Q. Her focus was?
A. To get a new trial.
Q. To get a new trial. Now — but in your mind a new trial and appeal are two different things, correct?
A.
Yes . . .
Q. What is your practice when you're not sure what a client wants to do or who has a right to appeal when they are not sure?
A. What is my practice when I'm not sure when the client is not sure?
Q. When you're not sure what the client's wishes are in terms of filing an appeal or not filing an appeal?
A. I try to clarify their confusion if that's apparent.
Rule 61 Hr'g Tr. at 38-40.
Additionally, in his sworn Affidavit submitted to the Court, Mr. Carey affirmed that the possibility of an appeal was summarily considered and disregarded as the issues at trial were factual and turned on the jury's resolution of the credibility of the Defendant and the victim. Having summarily discussed the appeal, and finding no possible merit to move forward, Mr. Carey fulfilled his obligations pursuant to Supreme Court Rule 26(a)(i).
Lastly, in considering the totality of the circumstances, Defendant's behavior simply does not jive with her stance on this Motion. If she was so passionate and steadfast in her desire to have her conviction appealed, it makes no sense that she never followed up with her desire to appeal until after she was violated on her probation and it was made clear to her that the Court would enforce her restitution obligation. Indeed, the Defendant did not respond to Mr. Carey's October 1, 2000 letter, and in fact took no further action to appeal her conviction until December 12, 2001, when she filed the instant Motion nearly one year after her sentencing.
Furthermore, despite her expressed resolve to appeal her conviction, the Defendant made no attempts to contact Mr. Carey at any time after her sentencing. This inaction is in sharp contrast to the defendant's conduct in Fullman, wherein he made repeated, albeit unsuccessful, attempts on several occasions to contact his counsel after his sentencing to request that counsel file a timely appeal on his behalf. And even in the Proctor case, where the court was unable to determine with certainty whether the defendant informed his trial counsel that he wanted to file a notice of appeal, defendant Proctor, at a minimum, "manifested an intent to docket a direct appeal" by filing his own untimely pro se notice of appeal. The Defendant in this case took no steps whatsoever to demonstrate an intent to appeal, which she now belatedly asserts in this proceeding.
Fullman, 1988 WL 188441 at *1.
Proctor, 2001 WL 823745 at *1.
CONCLUSION
In consideration of all of the foregoing, the Court concludes that Mr. Carey was not derelict in his obligations pursuant to Supreme Court Rule 26(a)(i). Despite Defendant's allegations, it appears that Mr. Carey did discuss with the Defendant her right to take a direct appeal and the notion was summarily dismissed, as it lacked merit. Mr. Carey informed the Defendant that in his legal opinion a direct appeal would be unsuccessful and the only viable alternative would be a new trial. Mr. Carey then outlined the feasibility of a motion for a new trial in his October 1, 2000 letter to the Defendant in which he found no viable basis for filing the motion on the ground of new evidence or witnesses. Moreover, the Court concludes that Mr. Carey satisfied his obligations under Supreme Court Rule 26(c), because there was no good faith reason for him to believe that his client desired that he perfect an appeal on her behalf, meritorious or not.
Rule 61 Hr'g Tr. at 46.
Thus, in light of the two-prong test of Strickland v. Washington, Mr. Carey's representation did not fall below an objective standard of reasonableness. Defendant's claim of ineffective assistance of counsel fails because Mr. Carey was not ineffective in his failing to file a direct appeal. He fulfilled his obligations under Rule 26(a) and (c) because he believed that his client did not want to file a direct appeal. Having concluded that Mr. Carey's behavior was not below the objective standard of reasonableness, this Court need not consider the second- prong of actual prejudice under Strickland (reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different).
Strickland, 466 U.S. at 688.
Id. at 694.
For all of the foregoing reasons, Defendant's Rule 61 Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.