IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,

v. Cr.A.No. 1312011420
GREGG RICHARDSON,

Defendant.

VVVVVVVVV

Submitted: September 22, 2015
Decided: November 20, 2015

Timothy Maguire, Esquire John R. Garey, Esquire

Department of Justice John R. Garey, P.A.

Carvel State Ofﬁce Building 48 The Green

820 North French Street Dover, DE 19901

Wilmington, DE 19801 Attorney for Defendant
Attorney for the State of Delaware

DECISION ON REMAND
FROM THE SUPERIOR COURT OF DELAWARE

This matter is back before the Court on remand from the Superior Court to consider
whether Gregg Richardson (“Defendant”) waived his right to a trial by jury knowingly,
intelligently, and voluntarily. This Court held a hearing on October 27, 2015, and heard
testimony from Defendant and Kevin O’Neill, Esq. (“Mr. O’Neill”), Defendant’s former counsel.
At the hearing, Defendant acknowledged that his waiver was made voluntarily, however,
whether Defendant waived his right to a trial by jury intelligently and with knowledge was still at
issue. At the conclusion of the hearing, the Court ordered the parties to submit supplemental
brieﬁng on the issue. The Court is in receipt of the briefing, and has reviewed both parties’

arguments. This is the Court’s Decision in accordance with the Order of the Superior Court.

 

FACTUAL AND PROCEDURAL HISTORY

On December 18, 2013, Defendant was arrested and charged with Resisting Arrest, in
violation of 11 Del. C. § 1257(b). On March 21, 2014, at arraignment, Defendant appeared pro
se, pleaded not guilty and demanded a trial by jury. Defendant subsequently retained Mr.
O’Neill.

On May 26, 2014, Mr. O’Neill sent an email to the State indicating that Defendant
wanted to waive his right to a trial by jury and have the matter proceed as a non-jury trial.1 The
State responded on May 27, 2014, and stated that it did not oppose Defendant’s request.

On June 9, 2014, Mr. O’Neill ﬁled a letter with the Court and requested that the case be
designated as a non-jury trial (the “June 9th letter”). Attached to the letter was a Rule 10-C
Form, executed by Mr. O’Neill. The Clerk of the Court docketed the June 9th letter and the 10-
C Form on June 11, 2014, however, based on the record, it does not appear that the letter was

ever delivered to a Judge for approval.

On July 7, 2014, the day of trial, Defendant and Mr. O’Neill executed a Waiver of Trial
By Jury (the “written waiver”), which was submitted to the Clerk. While the parties notiﬁed the
Court of Defendant’s request to have a non-jury trial, the written waiver was not addressed by
the Court on the record. Prior to trial, Defendant moved to suppress certain evidence,
challenging the legality of the arrest. The Court held a suppression hearing prior to trial, reserved
its decision, and pursuant to the parties’ stipulation, all non-hearsay testimony from the hearing
was admitted into as evidence for trial. The Court then took the matter under advisement. In the

Court’s written decision, the Court denied Defendant’s motion to suppress, and found Defendant

guilty.

1 See State’s Ex. 1.

On November 17, 2014, Defendant appealed this Court’s decision to Superior Court. On
appeal, Defendant challenges, inter alia, the validity of his written waiver of his right to a jury
trial. After the parties submitted their briefs, the Superior Court held oral argument and ordered
the parties to submit supplemental memoranda on the issue of whether Defendant’s written
waiver was valid. In a written decision dated September 22, 2015, Superior Court remanded the
matter back to this Court “to determine whether [Defendant’s] purported waiver of trial by jury
was made intelligently and voluntarily with knowledge of the right being waived and the

consequences of waiving that right.”2

On October 27, 2015, this Court held a hearing on the jury trial waiver issue. First, the
Court heard testimony from Mr. O’Neill. While testifying, Mr. O’Neill described the email
correspondence that he had with the State regarding Defendant’s request to waive his right to a
trial by jury.3 He also described the conversation he had with Defendant when discussing
whether Defendant should waive his right to a jury trial. Mr. O’Neill explained that normally
such a conversation would take approximately thirty seconds, but in this instance, it lasted longer
because Defendant asked thoughtful questions, which Mr. O’Neill answered. Mr. O’Neill found
Defendant to be “exceedingly thoughtful” and compliant, and indicated that Defendant engaged
in a meaningful conversation with him. Mr. O’Neill explained to Defendant that it was his
preference to waive to the bench because of “the exceptional nature of the judges” and the type
of criminal charges that Defendant faced. Mr. O’Neill ﬁlrther testiﬁed that he would not have
proceeded in this matter unless he was fully satisﬁed that Defendant was waiving his right

knowingly and voluntarily.

2 Gregg Richardson v. State, 2015 WL 5601959, at *3 (Del. Super. Sept. 22, 2015).:
3 State’s Ex. 1.

The Court also heard testimony from Defendant. Defendant recalled having a
conversation about waiving his right to a jury trial with Mr. O’Neill, and remembered some of
the advice Mr. O’Neill provided him with respect to waiving his right. Defendant testiﬁed that
he had expressed his desire to have a jury trial to Mr. O’Neill, but ultimately decided to agree to
waive his right because it was Mr. O’Neill’s practice to waive to the bench when appearing in
this Court. Defendant never told Mr. O’Neill that he did not want to have a bench trial, nor did
he tell Mr. O’Neill that he wanted to have a jury trial.

'At the conclusion of the hearing, Defendant—by way of counsel—acknowledged that his
waiver was made voluntarily, however, whether he knowingly and intelligently waived his right
to a trial by jury was still at issue. The Court acknowledged that the record was void of any
evidence that a Judicial Ofﬁcer approved the waiver, and ordered the parties to address this issue
in supplemental brieﬁng.

PARTIES’ CONT ENTIONS

The State contends that Defendant’s waiver of his right to a trial by jury was made
knowingly, intelligently, and voluntarily. The State argues that the Court complied with Court of
Common Pleas Criminal Rule 23(a) since the State consented to Defendant’s request to waive
his right to a jury trial, and the Court was “on notice” of Defendant’s request prior to proceeding
with trial. Therefore, the State claims that the Court’s acquiescence and knowledge of the
request was sufﬁcient to satisfy the requirements of Rule 23 (a).

Defendant contends that his waiver of his right to a trial by jury was neither intelligently
made nor properly accepted by the Court. Defendant highlighted the fact that the record was

void of any evidence that the Court approved Defendant’s waiver, and argued that without the

Court engaging in any direct inquiry as to whether Defendant’s decision to waive his right was
made voluntarily, intelligently, and knowingly, the waiver was not effective under Rule 23 (a).
DISCUSSION
Under 11 Del. C. § 5301(a), a criminal defendant in this Court has the right to a petit jury
except as otherwise provided by statute. Court of Common Pleas Criminal Rule 23(a) further
provided that matters required to be tried by a jury “shall be so tried unless the defendant waives
a jury trial in writing with the approval of the Court and the consent of the State.”4 When a

(GE

defendant elects to waive his right to a trial by jury, he must make[] an intelligent and
voluntary waiver in writing.’”5 A written waiver of a constitutional right will be intelligent and
voluntary so long as the defendant “is aware of the right in question and the likely consequences

of deciding to forego that right.”6

In determining whether a defendant has intelligently and
voluntarily waived his constitutional right to a trial by jury, the Court considers the “‘totality of
the circumstances surrounding the particular case, including the background, experience and
conduct of the accused.’”7 The waiver becomes effective “only when the defendant received
both ‘the approval of the court and the consent of the State.”8

Based on testimony presented at the hearing, the Court ﬁnds that Defendant’s waiver of
his right to a trial by jury was made intelligently and with knowledge. As an Ofﬁcer of the
Court, Mr. O’Neill testiﬁed that he believed that Defendant fully understood what rights

Defendant was waiving based on the fact that he engaged in a meaningﬁll and “exceedingly

thoughtful” conversation with Mr. O’Neill when they discussed waiving his right to a jury trial.

 

4 Ct. Com. P1. Crim. R. 23(a).

5 Davis v. State, 809 A.2d 565, 569 (Del. 2002) (quoting Polk v. State, 567 A.2d 1290, 1295 (Del. 1989)),
6 Id. (citing Lewis v. State, 757 A.2d 709, 714—1 5 (Del.2000) (quoting Brady v. United States, 397 US.
742, 748 (1970))).

7 Id. at 570 (quoting Mealey v.State, 347-A.2d 651, 652 (Del.l975) (citing Johnson v. Zerbst, 304 US.
458, 464 (1938)».

8 Id. at 569 (quoting Polk, 567 A.2d at 1295).

Moreover, Mr. O’Neill testiﬁed that he would not have proceeded in this matter unless he was
fully satisﬁed that Defendant was waiving his right knowingly and voluntarily. Defendant
himself acknowledged having this conversation, but recalled minimal details of the conversation.
Nevertheless, it is clear Defendant was informed and followed the advice of counsel. Despite
this ﬁnding, however, in reviewing the record, it appears that this waiver was not effective in
accordance with the rules of this Court.

In this case, there is no indication that the Court approved Defendant’s written waiver.
The Court may have acknowledged Defendant’s request to waive his right to a trial by jury, but a
mere acknowledgment does not equate to approval, as required by Rule 23 (a). Although the
State consented to the waiver by way of email, Defendant’s written request—despite being
docketed—was not forwarded to a judge for approval, just as the written waiver was not
approved by the Court. Although the record reﬂects that the parties notiﬁed the Court of
Defendant’s request to have a non-jury trial during the initial call of the calendar, the Court did
not actually address the waiver. In fact, the Court indicated that when the parties were ready to
proceed to trial, the Court would address the waiver issue.9 Nevertheless, the Court failed to
address the issue at any subsequent proceeding. Therefore, the Court failed to follow Rule 23 (a).

As the Court failed to follow its own rule, the waiver should not be considered to have

been entered. Accordingly, the Court is of the opinion that the Superior Court should remand the

case to this Court for a trial by jury.

 

9 State v. Gregg Richardson, Cr. A. No. 1312011420, at 428—9 (Ct. Com. Pl. July 7, 2014) (TRANSCRIPT).
6

