Opinion
ID No: 0407018106.
Submitted: September 26, 2005.
Decided: October 18, 2005.
Defendant's Motion to Dismiss Indictment — DENIED, Defendant's Motion to Disqualify Counsel — DENIED, Defendant's Motion to Participate with Counsel — DENIED.
Robert J. O'Neill, Jr., Deputy Attorney General, Dover, Delaware. Attorney for the State.
Dwight W. Perkins, Jr., Pro se.
OPINION
On September 26, 2005, this Court heard arguments on three, pro se motions of Defendant, Dwight W. Perkins, Jr. Specifically, this Court considered Defendant's Motion to Dismiss the Indictment Pursuant to Superior Court Criminal Rule 48(b) for Unnecessary Delay, Motion to Disqualify Counsel, and Motion to Participate with Counsel. For the following reasons, Defendant's motions are DENIED.
STATEMENT OF FACTS
On July 21, 2004, at approximately 8:35 p.m., Hariom Kantilal Patel, a clerk at the Super 8 Motel, 729 Bay Road, Milford, Delaware, was robbed of $320 at gunpoint by an assailant who fled the scene of the crime in a Ford Explorer. As the assailant was driving out of the motel parking lot, Patel was able to record the vehicle's license plate number. Patel reported the crime to the Delaware State Police, who were able to identify Defendant as the owner of the Ford Explorer based on the license plate number provided by Patel. On July 22, 2004, police obtained a warrant for Defendant's arrest. However, police were unable to execute the warrant, because Defendant had fled the jurisdiction. Defendant was apprehended on December 9, 2004 by United States Marshalls in Endicott, New York. Defendant was discovered driving the same Ford Explorer used in the Super 8 Motel robbery.
At the time of the robbery at the Super 8 Motel, Defendant was on probation, serving time at Level 2. On September 26, 2004, Defendant was reported by his probation officer as being in violation of probation for failing to report for office visits with his probation officer in August and September 2004. Defendant further violated his probation by testing positive for marijuana and cocaine in May 2004 and for failing to pay $161 in court costs and fines. On January 7, 2005, following his arrest in New York, Defendant was sentenced to thirty months at Level 5 for violating his probation. Defendant is currently serving that sentence at Sussex Correctional Center. Defendant is also being held on $58,000 cash bail for his arrest related to the Super 8 Motel robbery.
PROCEDURAL HISTORY
The preliminary hearing in this matter was scheduled for December 17, 2004. Prior to the hearing, Defendant met with Assistant Public Defender Lloyd A. Schmid, Jr., Esquire. For tactical reasons, Mr. Schmid advised Defendant to waive the preliminary hearing. In exchange, the Attorney General's Office (hereinafter referred to as "the State") would provide Defendant's counsel with a copy of the police report. Mr. Schmid explained that the police report is not discoverable under Super. Ct. Crim. R. 16, and therefore, Defendant's counsel would not have access to the police report until the first witness was sworn at trial.
On January 29, 2005, Defendant wrote to Assistant Public Defender Kathleen Amalfitano, Esquire, who was assigned to represented him, and inquired about the progress of his case. Defendant also requested an appointment to discuss the State's evidence, including the police report. Defendant requested that Ms. Amalfitano file a motion to withdraw Defendant's waiver of the preliminary hearing, claiming that Mr. Schmid's advice to waive the hearing in exchange for the police report was inaccurate. On February 3, 2005, Defendant wrote to Ms. Amalfitano, and requested all Rule 16 discovery material be sent to him. Defendant also repeated his request for Ms. Amalfitano to file a motion to withdraw the waiver of the preliminary hearing. Defendant also requested that a motion to dismiss all charges based on the State's failure to indict be filed on his behalf.
Ms. Amalfitano wrote to Defendant on February 7, 2005, and provided him with an update of his case. Ms. Amalfitano concurred with Mr. Schmid's advice to waive the preliminary hearing. She explained that, because Defendant had not been indicted yet, she could not obtain any discovery until Defendant was arraigned. In addition, Ms. Amalfitano advised that, until Defendant was indicted, filing a motion to dismiss for failure to indict would be premature. Defendant was also warned that, because he was incarcerated on the violations of probation, it would be difficult to demonstrate that the State's delay in filing an indictment caused him any prejudice. On March 7, 2005, Defendant was indicted by the Grand Jury for the July 21, 2004 robbery on three counts: first-degree robbery, possession of a firearm during the commission of a felony, and possession of a deadly weapon by a person prohibited. Following his indictment, Defendant wrote to Ms. Amalfitano again, on March 19, 2005, requesting a copy of the Grand Jury indictment, demanding that she file motions withdrawing the waiver of the reading of the indictment and dismissing the matter for failure to indict in a timely manner. On March 22, 2005, Defendant filed, pro se, a Motion to Disqualify Counsel. On June 1, 2005, Defendant filed, pro se, a Motion to Participate with Counsel in his defense.
In preparation for Defendant's July 6, 2005 trial, Ms. Amalfitano did file motions on Defendant's behalf. On June 1, 2005, Ms. Amalfitano filed a Motion to Suppress the identification made by the victim, which is still pending. On June 3, 2005, Ms. Amalfitano filed a Motion to Sever the charge of possession of a deadly weapon by a person prohibited from the charges of robbery and possession of a firearm during the commission of a felony. Defendant's Motion to Sever was denied by this Court.
Trial in this matter has been postponed three times. Trial was originally scheduled to begin on June 6, 2005, but the State was granted a continuance until the next day to accommodate the victim who had to work at the motel due to the busy NASCAR race weekend. Although the trial was continued until the next day, June 7, the trial could not go forward due to the Court's docket. The trial was rescheduled for July 19, 2005, but the trial was continued again due to the Court's busy calender. Rescheduling of the trial is pending the resolution of Defendant's present motions, at Defendant's request.
On September 14, 2005, Defendant filed, pro se, a Motion to Dismiss the Indictment Pursuant to Criminal Rule 48(b). Defendant argues that (1) the State violated his right to a speedy trial by postponing the trial through a series of continuances, and (2) the State failed to file an indictment within thirty days from the time of his arrest in violation of Crim. Admin. Order, Del. Super., Ridgely, P.J. (Jan. 16, 1991).
DISCUSSION
I. Motion to Dismiss the Indictment Pursuant to Rule 48(b).
Under Super. Ct. Crim. R. 48(b), an indictment may be dismissed at the discretion of the Court, if there has been "unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer in Superior Court." A criminal indictment can only be dismissed for "unnecessary delay" if the defendant can establish (1) the delay was caused by the prosecution, and (2) the defendant was prejudiced by the delay. The prejudice that the defendant must show is that which is "beyond that normally associated with a criminal justice system necessarily strained by a burgeoning case load."
State v. McElroy, 561 A.2d 154, 155-156 (Del. 1989). See also State v. Willis, 2001 WL 789667 (Del.Super.).
Id.
Rule 48(b) does not specifically address the source of the unnecessary delay; however, the trial court's authority to dismiss an indictment based on unnecessary delay has been limited to those cases in which "the delay is attributable to the prosecution." If the delay was caused by the prosecution, then the Court should consider whether the prosecution had a valid reason for the delay. As such, the Court will "consider the extent to which the State is at fault in causing the delay and the amount of control the State has over the event causing the delay." In McElroy, the Delaware Supreme Court reversed the trial court's decision to dismiss a criminal information, because the delay in bringing the case to trial was caused by the Court's busy docket, and not by anything attributable to the prosecution.
Id. at 157.
State v. Willis, 2001 WL 789667, at *2 (Del.Super.).
Id.
McElroy, 561 A.2d at 157 (Del. 1989); Compare State v. Willis, 2001 WL 789667 (Del.Super.) (Five-month delay in filing an indictment against defendant was caused by the prosecution, who failed to schedule the intake in a timely manner. The Court held that scheduling the intake, which was not done until five months after the alleged offense, was within the control of the prosecution.)
Not only must the defendant prove that the delay was caused by the prosecution, but the defendant must also demonstrate that "the delay has been found to work some definable or measurable prejudice to the defendant." The recognized types of prejudice a defendant may suffer include "death or disappearance of witnesses, loss of evidence, loss of counsel, or denial of opportunity to prepare for trial." The Delaware Supreme Court has also enumerated the following elements which may be prejudicial to the defendant:
State v. Harris, 616 A.2d 288, 291 (Del. 1992) (quoting McElroy, 561 A.2d at 157).
State v. Morris, 340 A.2d 846, 850 (Del.Super. 1975), aff'd 349 A.2d 748 (Del. 1975) (citing State v. Fischer, 285 A.2d 417 (Del. 1971)).
The unexplained commencement of a new prosecution long after dismissal of the same charge in another Court, anxieties suffered by defendant as a result of delay and uncertainty in duplicative prosecutions, notoriety suffered by defendant and his family as the result of repeated commencement for the prosecutions for the same offense, and expenses attendant upon a subsequent renewal of a dismissed prosecution.
In Morris, the Court denied the defendant's claims that he was prejudiced by an eighteen-month pretrial incarceration, as the defendant did not demonstrate that his "incarceration was any different from that of any defendant incarcerated before trial." Similarly, the defendant's claims of anxiety were also rejected for lack of any evidence that he suffered any mental or physical condition as a result of his incarceration or the nature of the charges. Finally, the defendant did not demonstrate that the delay in bring the case to trial caused any impairment to his defense.
Id. at 850.
Id.
Id.
Id.
When a prosecutor's misconduct has caused an unnecessary delay, the Court has many options to address the matter, which focus "on the culpable individual rather than granting a windfall to the unprejudiced defendant." If the defendant has not suffered any prejudice as a result of the prosecutor's misconduct, then "the ultimate sanction of dismissal, is an inappropriate remedy for improper actions by a prosecutor."
State v. Harris, 616 A.2d 288, 291-292 (Del. 1992) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 263 (1988) (offering alternative remedial measures such as sanctions, reprimand, disciplinary referral, or contempt))).
Id. (citing Bank of Nova Scotia, 487 U.S. at 263).
In this case, Defendant has failed to prove that the State caused his trial to be delayed unnecessarily. The first continuance of trial was requested by the State for a valid reason. The State asked for a one-day continuance to accommodate the victim of the robbery, who had to work at the motel because of the busy race weekend. The last two continuances, however, were not requested by the State, but were caused by the Court's busy docket.
Because the Defendant has not satisfied the first prong of the test for unnecessary delay under Rule 48(b), Defendant's claim of prejudice is moot. Nonetheless, the Defendant did not provide any basis to support a finding of prejudice. Defendant complains that his liberty has been restrained since his arrest. Defendant's claim is not persuasive. Regardless of his arrest on the robbery charges, he remains incarcerated on a thirty-month sentence for violating probation. Defendant's Motion to Dismiss the Indictment based on the delay in bringing the case to trial is denied.
The same analysis can be used to determine whether there was an unnecessary delay in filing the indictment against the Defendant. In the Superior Court in and for Kent County, the Grand Jury is convened on the first workday of the month. In this case, the State could have filed the indictment in January or February of 2005, but waited until March 7, 2005, eighty-eight (88) days after Defendant's arrest. The State offers no explanation for the delay. Therefore, the delay must be attributed to the State.
Crim. Admin. Order, Del. Super., Ridgely, P.J. (Jan. 16, 1991) at 3.
Although the State is responsible for delaying the filing of the indictment, Defendant has failed to establish that he suffered any prejudice as a result. Defendant argues that the arrest for the robbery and weapons charges contributed to the length of the sentence he received on January 7, 2005 for the violations of probation. Defendant's argument is not supported by any evidence, and is illogical. The first time the Grand Jury could have been convened following Defendant's arrest was January 4, 2005. Assuming that the Grand Jury indicted Defendant on January 4, 2005, rather than March 7, 2005, the robbery and weapons charges would have remained. Defendant also provides no evidence that his sentence would have been different if the robbery and weapons charges had been dismissed.
Notwithstanding the sentence for the violations of probation, Defendant is being held on $58,000 cash bail for the robbery and weapons charges, and pretrial incarceration does not constitute prejudice to the Defendant. Because the Defendant has not established any prejudice, his Motion to Dismiss based on the delayed filing of the indictment is denied.
Morris, 340 A.2d at 850.
II. Motion to Disqualify Counsel.
Defendant seeks to remove the Public Defender assigned to represent him, alleging ineffective assistance of counsel. Defendant argues that his counsel's advice to waive the preliminary hearing in exchange for the police report was misinformed. Defendant also contends that the Public Defender has failed to communicate with him. Finally, Defendant complains that his counsel entered a plea of "not guilty," and waived the reading of his indictment at the arraignment without Defendant's knowledge or consent.
Allegations of ineffective assistance of counsel must be supported with proof that "`counsel's representation fell below an objective standard of reasonableness,' and `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)).
The Court's review of the counsel's conduct "is subject to a strong presumption that the representation was "professionally reasonable." In addition, the defendant "must make specific allegations of actual prejudice and substantiate them."
Outten v. State, 720 A.2d 547, 552 (Del. 1998) (quoting Flamer v. State, 585 A.2d 736, 753 (Del. 1990)).
Id. (quoting Wright v. State, 671 A.2d 1353, 1356 (Del. 1996)).
Defendant's conclusory claims that his counsel was ineffective are not supported by any evidence that her representation was unreasonable, or that her representation affected the progress of his case. The Public Defender's advice concerning discovery of the police report was accurate. Citing Brady v. Maryland, Defendant argues that he is entitled to discover the police report prior to trial. Therefore the Public Defender's advice to waive the preliminary hearing in exchange for the police report was incorrect. Defendant's understanding of Brady, however, is misinformed. In Lovett v. State, the Delaware Supreme Court held that "`there is no general constitutional right to discovery in a criminal case, and Brady did not create one." The Lovett Court specifically addressed the discovery of police reports, and concluded that "a defendant has no due process right to discovery of police reports made in the course of criminal investigations." Not only has the defendant failed to provide any support for his claims of ineffective counsel, he has also failed to allege that he has suffered any prejudice as a result of the Public Defender's representation. Defendant also fails to establish that any other aspect of the Public Defender's representation "fell below an objective standard of reasonableness." The Public Defender responded to Defendant's concerns in her February 7, 2005 letter, and was preparing for trial, as evidenced by the pretrial motions. Therefore, Defendant's Motion to Disqualify Counsel is denied.
373 U.S. 83 (1963).
516 A.2d 455, 472 (Del. 1986) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)).
Id. (citing State v. Thompson, 134 A.2d 266, 267-268 (Del.Super. 1957)).
Albury, 551 A.2d at 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688).
III. Motion to Participate with Counsel.
Defendant also requests permission to participate with counsel in his own defense, so he can file a pretrial motion on his own behalf. Defendant does not specify what type of motion he intends to file. Defendant also provides no basis for this request. Not only has Defendant failed to prove that his counsel has been ineffective, the record indicates that the Public Defender has filed pretrial motions, including Motions to Sever and Suppress. For these reasons, Defendant's Motion to Participate with Counsel is also denied.
CONCLUSION
For the reasons stated above, Defendant's Motion to Dismiss the Indictment Pursuant to Superior Court Criminal Rule 48(b) for Unnecessary Delay is DENIED. Defendant's Motion to Disqualify Counsel and Motion to Participate with Counsel are also DENIED.