     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                        )
                                          )
     v.                                   )        I.D. No. 92006336DI
                                          )
ANDRE JOHNSON,                            )
                                          )
          Defendant.                      )


                        Date Submitted: May 11, 2016
                         Date Decided: August 11, 2016

                         MEMORANDUM OPINION


               Upon Defendant’s Motion for Postconviction Relief
                                 DENIED




Christopher S. Koyste, Esquire, Law Office of Christopher Koyste, LLC,
Wilmington, DE, Attorney for Defendant.

Elizabeth R. McFarlan, Esquire, Chief of Appeals, Department of Justice,
Wilmington, DE, Attorney for the State of Delaware.




ROCANELLI, J.
I.       PROCEDURAL BACKGROUND

         On July 2, 1992, Defendant Andre Johnson (“Defendant”) was arrested and

charged with two counts of Burglary Second Degree, Conspiracy Second Degree,

Carrying a Concealed Deadly Weapon, Theft of a Firearm, and other related

offenses. On January 29, 1993, counsel was appointed for Defendant (“Original

Trial Counsel”).

         On March 23, 1993, Defendant filed a motion to dismiss his indictment

(“Defendant’s Motion to Dismiss”).1 Defendant’s Motion to Dismiss was partially

based on a claim of prosecutorial immunity. Defendant’s Motion to Dismiss also

sought to suppress two photo lineups from which witnesses identified Defendant as

driving away from recently burglarized residences.

          On October 14, 1993, Defendant filed a motion to proceed as a self-

represented litigant (“Defendant’s First SRL Motion”). On October 15, 1993,

Original Trial Counsel was permitted to withdraw due to a conflict of interest. By

Letter dated October 25, 1993, the Court notified Defendant that an evidentiary

hearing on Defendant’s First SRL Motion would be scheduled within a few weeks.

Defendant’s First SRL Motion was denied pending the evidentiary hearing.

         On November 1, 1993, Defendant was appointed new counsel (“Trial

Counsel”).       By Letter dated November 1, 1993, the Court notified Trial Counsel


1
    Defendant’s Motion to Dismiss was filed by Original Trial Counsel.
                                                 1
that Defendant’s self-representation would be determined after a pre-trial

evidentiary hearing.

       On November 3, 1993, Defendant appealed the October 25, 1993 denial of

Defendant’s First SRL Motion to the Delaware Supreme Court.2 By Letter dated

November 10, 1993, the Court notified Defendant that no action would be taken in

connection with his request for self-representation until Defendant’s appeal was

resolved. 3 By Order dated December 22, 1993, the Delaware Supreme Court

dismissed Defendant’s appeal as interlocutory.4

       On February 4, 1994, the Court conducted an evidentiary hearing regarding

Defendant’s Motion to Dismiss and Defendant’s First SRL Motion (“February

1994 Hearing”). Because the prosecution was unavailable due to medical issues,

the Court only considered whether Defendant could proceed with self-

representation. The Court conducted a colloquy with Defendant. The Court found

that Defendant had not knowingly or intelligently waived his right to counsel, and

was unable to competently represent himself at subsequent pre-trial evidentiary

hearings. The Court informed Defendant that the issue of self-representation could




2
  Defendant filed the appeal as a self-represented litigant.
3
  The November 10, 1993 Letter was sent after Defendant filed three additional motions for
evidentiary hearings and self-representation. All three motions were subsequent to the Court’s
October 25, 1993 Letter denying Defendant’s First SLR Motion. The motions were filed by
Defendant as a self-represented litigant.
4
  Johnson v. State, 637 A.2d 827 (Del. 1993) (ORDER).
                                              2
be revisited if the case went to trial. The February 1994 Hearing was continued

until March 11, 1994.

       On March 11, 1994, the Court resumed the evidentiary hearing on

Defendant’s Motion to Dismiss (“March 1994 Hearing”). During the March 1994

Hearing, the Court addressed Defendant’s continuing application to proceed as a

self-represented litigant. Defendant was not permitted to represent himself during

the March 1994 Hearing. Defendant withdrew his request to proceed as a self-

represented litigant. The March 1994 Hearing was continued until May 6, 1994.

       On March 24, 1994, Defendant filed a second motion to proceed as a self-

represented litigant (“Defendant’s Second SRL Motion”). By letter dated April 5,

1994, the Court denied Defendant’s Second SRL Motion.

       On May 6, 1994, the Court resumed the evidentiary hearing on Defendant’s

Motion to Dismiss (“May 1994 Hearing”).         During the May 1994 Hearing,

Defendant raised his continuing application to proceed as a self-represented

litigant.   The Court conducted another colloquy with Defendant.       Defendant

eventually agreed to proceed with Trial Counsel as his representative. At the

conclusion of the May 1994 Hearing, the Court granted the State’s motion to

preclude Defendant’s claim of prosecutorial immunity.




                                        3
       On May 9, 1994, the Court conducted a suppression hearing, after which the

Court denied Defendant’s request to exclude the two photo lineups. The case

proceeded to trial the same day.5

       On May 12, 1994, a jury returned verdicts of Guilty for two counts of

Burglary Second Degree, two counts of Conspiracy Second Degree, two counts of

Misdemeanor Theft, Theft of a Firearm, Disregarding a Traffic Device, Resisting

Arrest, and Carrying a Concealed Deadly Weapon. On May 19, 1994, the State

moved to have Defendant declared an habitual offender pursuant to 11 Del. C. §

4214. By Order dated July 1, 1994, the Court granted the State’s habitual offender

motion and sentenced Defendant to a mandatory life sentence.6

       On July 25, 1994, Defendant appealed his conviction to the Delaware

Supreme Court. On May 9, 1995, Defendant voluntarily dismissed the appeal.

       On August 12, 2013, Defendant filed his first motion for postconviction

relief as a self-represented litigant. By Order dated March 12, 2014, this Court

appointed counsel for Defendant’s motion for postconviction relief (“Rule 61

Counsel”). On December 15, 2015, Rule 61 Counsel filed an amended motion for

postconviction relief (“Defendant’s PCR Motion”), arguing that (1) Defendant

was denied the right to self-representation under the Sixth Amendment of the

5
  The record reflects that Defendant was offered a plea that would have resolved all charges
against him if Defendant agreed to 20 years of incarceration. Defendant considered and rejected
the plea offer against Trial Counsel’s advice.
6
  11 Del. C. § 4214(b).
                                               4
United States Constitution and Article 1, § 7 of the Delaware Constitution; and (2)

Defendant was provided ineffective assistance of counsel. The State opposes

Defendant’s PCR Motion.

       II.    CONSIDERATION OF PROCEDURAL BARS

       Defendant filed his original motion for postconviction relief on August 12,

2013. Accordingly, the May 2013 version of Superior Court Criminal Rule 61

(“Rule 61”) governs Defendant’s PCR Motion. 7                Postconviction relief is a

“collateral remedy which provides an avenue for upsetting judgments that have

otherwise become final.”8 To protect the finality of criminal convictions, the Court

must consider the procedural requirements for relief set out under Rule 61(i) before

addressing the merits of the motion.9

       Rule 61(i)(1) bars a motion for postconviction relief that is filed more than

one year from a final judgment of conviction. Defendant voluntarily dismissed the

appeal of his conviction to the Delaware Supreme Court on May 9, 1995.

Defendant filed his original motion for postconviction relief on August 12, 2013.

Accordingly, Defendant’s PCR Motion fails to meet the one year time limitation,

and is procedurally barred unless an exception applies.




7
  See Washington v. State, 2014 WL 4243590, at *2 (Del. Aug. 26, 2014) (applying the version
of Rule 61 in effect when defendant filed his original postconviction motion).
8
  Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
9
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                             5
       Pursuant to Rule 61(i)(5), the procedural bars to postconviction relief do not

apply to “a colorable claim that there was a miscarriage of justice because of a

constitutional violation that undermined the fundamental legality, reliability,

integrity or fairness of the proceedings leading to the judgment of conviction.”

The fundamental fairness exception is a narrow one. 10 The movant must

demonstrate that he has been deprived of a substantial constitutional right. 11

       Defendant asserts that he was deprived the constitutional right of self-

representation and effective assistance of counsel. Although not every allegation

of a constitutional dimension requires relief from Rule 61’s procedural bars, 12

Defendant’s contentions warrant consideration on their merits.

III.   DEFENDANT’S RIGHT TO SELF-REPRESENTATION WAS NOT
       VIOLATED

       The right to self-representation is protected by the Sixth Amendment of the

United States Constitution and Article 1, § 7 of the Delaware Constitution. 13

Before permitting a defendant to proceed as his own representative, the court must

(1) determine that the defendant has made a knowing and voluntary waiver of his

constitutional right to counsel; and (2) inform the defendant of the risks inherent in




10
   Id. at 555.
11
   Id.
12
   See Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
13
   See Faretta v. California, 422 U.S. 806, 816-19 (1975); Hartman v. State, 918 A.2d 1138,
1140 (Del. 2007) (citing Hooks v. State, 416 A.2d 189, 197 (Del. 1980)).
                                            6
going forward in a criminal trial without the assistance of legal counsel.14 Whether

a defendant has knowingly and voluntarily waived the right to counsel is a

factually specific inquiry. 15 The record must reflect that the court conducted a

thorough inquiry to assure that defendant fully apprehends the perils and

requirements of self-representation.16

       Defendant asserts that he was denied the right to self-representation during

the February 1994 Hearing because the Court erroneously refused to honor his

requests to proceed as a self-represented litigant. Specifically, Defendant contends

that Defendant intelligently and voluntarily waived his right to counsel after a

sufficient appraisal of the inherent risks of self-representation.                  Therefore,

Defendant argues that he should have been permitted to proceed as a self-

represented litigant.17

       Furthermore, Defendant argues that the Court improperly relied on

Defendant’s lack of legal knowledge,18 and erred by informing Defendant that he


14
    Faretta, 422 U.S. at 835-36; Christopher v. State, 930 A.2d 894, 896 (Del. 2007) (quoting
Hartman, 918 A.2d at 1140-41).
15
    See Briscoe v. State, 606 A.2d 103, 107-08 (Del. 1992).
16
    Hartman, 918 A.2d at 1142. In Morrison v. State, the Delaware Supreme Court articulated the
requirements for a knowing and voluntary waiver of the right to counsel. 135 A.3d 69, 73-74
(Del. 2016) (citing United States v. Welty, 674 F.2d 185, 188-89 (3d Cir. 1982)). The Supreme
Court held that the defendant should be advised of applicable rules of evidence and procedure,
the potential disparate impact of self-representation, the nature of the charges against him, the
range of permissible penalties, potential mitigating circumstances, and all other facts that are
essential to a broad understanding of the matter at issue. Id.
17
    See Faretta, 422 U.S. at 835.
18
   See Hartman, 918 A.2d at 1143 (finding that the denial of self-representation on the basis of
insufficient legal knowledge is error); Stigars v. State, 674 A.2d 477, 480 (Del. 1996) (“If a
                                               7
would be barred from testifying on his own behalf at subsequent evidentiary

hearings if Defendant proceeded as a self-represented litigant.19 Defendant argues

that his right to self-representation was irreversibly violated during the February

1994 Hearing because the Court improperly denied Defendant’s request and forced

him to proceed with appointed counsel in subsequent evidentiary hearings.20

       A. Defendant Waived His Right to Self-Representation by Voluntarily
          Revoking His Request During the March 1994 Hearing and May
          1994 Hearing

       A defendant may waive his right to self-representation after previously

asserting it.21 Once a defendant invokes his right to proceed as a self-represented

litigant, any subsequent revocation of the request must be clearly shown on the




defendant has knowingly and voluntarily waived his right to counsel, the wisdom of his decision
to represent himself is not an issue for the courts.”). During the February 1994 Hearing, the
Court told Defendant that “a lot of steps which you have taken . . . convinces me that you may
not be familiar enough with what might be needed in order to conduct properly, for your benefit,
the hearing on the question of immunity, if any immunity.” State v. Johnson, No. 92006336, at
25 (Del. Super. Feb. 4, 1994) (TRANSCRIPT).
19
   The Court engaged defendant in the following colloquy during the February 1994 Hearing:
            The Court: It is very likely that if you did represent yourself that you would
            take the stand to testify. A lawyer who is a witness in a case is not allowed
            to remain as the lawyer in the case. In fact, what I would be allowing you to
            do is self-representation, which is what an attorney cannot do.
State v. Johnson, No. 92006336, at 25 (Del. Super. Feb. 4, 1994) (TRANSCRIPT).
20
   See McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“In determining whether a
defendant’s Faretta rights have been respected, the primary focus must be on whether he had a
fair chance to present his case in his own way”); see also Buhl v. Cooksey, 233 F.3d 783, 789 (3d
Cir. 2000) (“The Sixth Amendment right of self-representation differs from other constitutional
rights because it can not be exercised without the concomitant waiver of another fundamental
right that is also guaranteed under the Sixth Amendment; the right to counsel.”).
21
   Christopher, 930 A.2d at 897 (citing Walker v. State, 2007 WL 481957, at *2 (Del. Feb. 15,
2007)).
                                               8
record.22 While mere acquiescence to a trial judge’s denial of a proper invocation

of the right to self-representation is insufficient,23 “a subsequent assertion, on the

record, that the defendant has reconciled his differences with defense counsel

constitutes a waiver.” 24 A voluntary waiver of self-representation revokes a

defendant’s previous requests.25

       At the March 1994 Hearing, Trial Counsel represented to the Court that

Defendant “has now re-considered his position on representing himself and wants

me to represent him as I have already been appointed to do.” 26 Thereafter, the

Court conducted the following colloquy:

          The Court: Mr. Johnson, first of all, do you believe that you have
          had enough time to talk to [Trial Counsel] about where we are
          procedurally with this case and the choice of still asking me to
          allow you to represent yourself or to have [Trial Counsel] to go
          on from here and represent you at trial? Have you had enough
          time to talk about all that?
          The Defendant: Yes, sir.
          The Court: Is it your desire now to withdraw your motion to
          proceed pro se and to act through [Trial Counsel] as your
          counsel pre-trial and at trial?
          The Defendant: Yes, sir.

22
   Stigars, 674 A.2d at 480-81.
23
   Williams v. State, 56 A.3d 1053, 1056 (Del. 2012) (quoting Christopher, 930 A.2d at 897).
24
   Christopher, 930 A.2d at 897 (citing Walker, 2007 WL 481957, at *2).
25
   See Christopher, 930 A.2d at 898 (“[N]otwithstanding the problems with the colloquy and
legal analysis in the initial ruling on the issue of pro se representation, the record reflects that
Christopher revoked and waived his request to represent himself, when he subsequently told the
trial judge that he was absolutely satisfied with defense counsel’s representation.”); Williams, 56
A.3d at 1056 (recognizing that the Christopher Court affirmed the judgment of conviction
despite an insufficient colloquy because the record demonstrated a subsequent waiver of self-
representation).
26
   State v. Johnson, No. 92006336, at 99 (Del. Super. Mar. 11, 1994) (TRANSCRIPT).
                                                 9
            The Court: Is that your choice or is anybody forcing that on you
            in any way?
            The Defendant: No, sir. In light of the day’s events, I just
            thought it might be best to let [Trial Counsel] handle that.
            The Court: But it is your choice.
            The Defendant: Yes, sir.
            The Court: Is anybody forcing you in any way to make that
            choice?
            The Defendant: No, sir.
            The Court: You understand that it is probably true, as [Trial
            Counsel] just indicated, that if I allow you to withdraw your
            motion to proceed pro se, it is highly unlikely, very unlikely, that
            I will allow you to renew that motion and to go from that point
            and represent yourself. Do you understand that?
            The Defendant: Yes, sir.
            The Court: Part of the reason I am saying that is that we have
            been quite sometime in getting even to this stage, and it is now
            time, if we go on from this stage, to set a trial date. Do you
            understand that?
            The Defendant: Yes, sir.

                                       *      *      *      *

            The Court: I think it’s appropriate that [motion deadlines] be
            discussed in Mr. Johnson’s presence so that if he has any matters
            he would like to raise which have to be raised through you, do
            you understand that Mr. Johnson?
            The Defendant: Very clear, sir.
            The Court: No more pro se stuff.
            The Defendant: Understood.
            The Court: I am allowing you to withdraw your motion to
            proceed pro se.27

         At the May 1994 Hearing, Defendant suggested that he was acting as his

own attorney. Thereafter, the Court conducted the following colloquy:



27
     State v. Johnson, No. 92006336, at 100-02, 113 (Del. Super. Mar. 11, 1994) (TRANSCRIPT).
                                               10
              The Court: But I’ll tell you Mr. Johnson, quite frankly, the
              alternating position of whether you want [Trial Counsel] or any
              lawyer to represent you or . . . to be able to represent yourself is
              at an end, and there will be no further delays.28

                                       *      *      *      *

              The Defendant: You know, it’s not necessarily a matter of me
              being determined to want to proceed pro se, it’s just that I’ve
              grown very paranoid as a result of my involvement with the
              Department of Justice and one of my former attorneys, that I
              understand is being slated as a State witness, and I don’t trust
              these public officials, and it’s just – you know, I concur with
              what you said regarding [Trial Counsel] being competent . . . to
              represent me. It’s just – just wrestling with that fact over again
              has gotten me a little confused.
              The Court: What are you telling me?
              The Defendant: I’m telling you that . . . we can proceed so we
              don’t waste any more of the Court’s time, we can proceed with
              [Trial Counsel]. It’s just that, you know, it’s just against my
              better judgment, in light of what has happened.
              The Court: Well, you have a constitutional right to represent
              yourself. If I determine that you are exercising that right in a
              knowing and intelligent manner, I must respect it, quite clearly.
              All right?
              The Defendant: Yes.
              The Court: And the problem is that, as I said, the time for going
              back and forth between having a lawyer or not having a lawyer
              has ended . . . but we can’t go on this way, to be honest with you,
              sir, because it’s not fair to you, you’re in jail, you’re the one that
              suffers the most direct prejudice because of the delay here, and
              the problems with witnesses, and so forth and so on.
              Constitutionally, I am compelled to give primary weight to . . .
              whether you want to represent yourself or whether you want to
              have a lawyer represent you[.] [A]ll I’m saying to you is that you
              – if you do want [Trial Counsel] back now on the case, and that’s
              your decision, I will respect it, but if you change your mind again


28
     Id. at 6-7.
                                               11
             about that, then you will have to understand that you have
             waived your right to counsel.
             The Defendant: Okay.

                                   *      *      *     *

             The Court: What is it you want to do now?
             The Defendant: We can proceed with [Trial Counsel.]
             The Court: You want him to represent you?
             The Defendant: Yes.29

          Defendant argues that the revocation of his request to proceed with self-

representation during the March 1994 Hearing was ineffective because Defendant

was not made aware of the dangers and disadvantages of self-representation.

Furthermore, Defendant contends that even if Defendant’s request to proceed with

self-representation was granted at the May 1994 Hearing, the record indicates that

Defendant would not have been afforded adequate time to prepare his defense or

re-conduct evidentiary hearings. Accordingly, Defendant argues that the Court

forced him to follow down a path laid by Trial Counsel with a defense that was not

his own. Therefore, Defendant contends that the revocation of his request for self-

representation was involuntary.

           This Court disagrees and finds that Defendant withdrew his motion to

proceed as a self-represented litigant.       The record of Defendant’s evidentiary

hearings sufficiently demonstrates that Defendant knowingly elected to exercise

his right to counsel after the Court explained that he maintained the right to self-

29
     Id. at 20-22.
                                          12
representation at trial. Defendant acknowledged that Trial Counsel was competent,

and unambiguously represented that he wished to proceed with Trial Counsel as

his representative. The Court’s cautioning of Defendant that subsequent requests

for self-representation would likely be denied represents a permissible balancing of

Defendant’s interest in self-representation against the prejudice that would result if

subsequent proceedings were continually delayed.30

         Defendant’s statements during the March 1994 Hearing and May 1994

Hearing constitute a voluntary revocation of Defendant’s previous requests to

proceed as a self-represented litigant.31 Therefore, this Court finds that Defendant

waived his constitutional right to self-representation.32

       B. The Denial of Defendant’s Request for Self-Representation During
          the February 1994 Hearing Was Not Prejudicial in Light of
          Defendant’s Subsequent Waiver

       Even where a defendant makes a knowing and voluntary waiver of counsel,

the right to self-representation is not unqualified. 33 Once proceedings have

commenced, a trial judge may address self-representation by weighing the

legitimate interests of the defendant against the prejudice that may result from


30
   See Zuppo v. State, 807 A.2d 545, 547 (Del. 2002) (citing Buhl v. Cooksey, 233 F.3d 783, 797
(3d Cir. 2000)) (“[T]he right to self-representation is not a license to disrupt the criminal
calendar, or a trial in progress.”).
31
   See Christopher, 930 A.2d at 897 (citing Walker, 2007 WL 481957, at *2); Stigars, 674 A.2d
at 480-81.
32
   See Christopher, 930 A.2d at 897-98; Williams, 56 A.3d at 1056.
33
   Stigars, 674 A.2d at 479; State v. Damiani-Melendez, 2015 WL 9015051, at *7 (Del. Super.
Nov. 25, 2015) (citing Zuppo, 807 A.2d at 547).
                                              13
potential disruption of proceedings already in progress.34 “The trial judge need not

expressly mention the timeliness of the request to proceed pro se so long as the

‘record reflect[s] clear findings and logical reasoning underlying the ruling

denying the request.’”35 “[T]he State’s interest in ‘ensuring integrity and efficiency

of the trial at times outweighs the defendant’s interest in acting as his own

lawyer.’”36

       A sufficiently thorough inquiry is required to satisfy the requirements for a

knowing and voluntary waiver of the right to counsel.37 However, Defendant’s

right to self-representation is not unqualified.38 The Court’s decision is supported

by clear and logical findings that Defendant’s inability to represent himself in

connection with the immunity issue prevented Defendant from making a knowing

and voluntary waiver of counsel. 39 The Court reached this determination after

conducting a sufficiently comprehensive inquiry and expressing legitimate

34
   Kostyshn v. State, 2004 WL 220321, at *2 (Del. Jan. 30, 2004).
35
   Christopher, 930 A.2d at 897 (quoting Zuppo, 807 A.2d at 548).
36
   Damiani-Melendez, 2015 WL 9015051, at *7 (quoting Zuppo, 807 A.2d at 548).
37
   See Hartman, 918 A.2d at 1142. The Court examined the reasons for Defendant’s decision to
proceed as a self-represented litigant. State v. Johnson, No. 92006336, at 6-10 (Del. Super. Feb.
4, 1994) (TRANSCRIPT). Defendant was advised of the charges against him, including the
permissible range of penalties. Id. at 19-20. The Court evaluated the Defendant’s knowledge of
the applicable rules of evidence and procedure. Id. at 17-18. Defendant was advised of the
potential disparate impact of self-representation in connection with the immunity claim. Id. at
24-28. “A knowing and intelligent waiver can occur without reviewing each of [the relevant]
factors in haec verba.” Morrison, 135 A.3d at 75.
38
   Stigars, 674 A.2d at 479; Damiani-Melendez, 2015 WL 9015051, at *7 (citing Zuppo, 807
A.2d at 547).
39
   See State v. Johnson, No. 92006336, at 24-28 (Del. Super. Feb. 4, 1994) (TRANSCRIPT). See
Christopher, 930 A.2d at 897 (citing Zuppo, 807 A.2d at 548). The record reflects that “the trial
judge implicitly weighed the [relevant] competing interests with care.” Zuppo, 807 A.2d at 548.
                                               14
concerns on the record regarding Defendant’s interests and the integrity of the

criminal process.40

       Accordingly, even if the denial of Defendant’s request to proceed as a self-

represented litigant in subsequent pre-trial evidentiary hearings was not proper, the

record establishes that Defendant voluntarily revoked his requests for self-

representation at subsequent evidentiary hearings. 41 Therefore, the denial of

Defendant’s request to proceed as a self-represented litigant during the February

1994 Hearing was not prejudicial in light of Defendant’s subsequent waiver.

IV.    DEFENDANT FAILS TO ESTABLISH INEFFECTIVE ASSISTANCE
       OF COUNSEL

       Defendant argues that Trial Counsel was ineffective because he failed to

adequately protect Defendant’s right to self-representation. The standard used to

evaluate claims of ineffective counsel is the two-prong test articulated by the

United States Supreme Court in Strickland v. Washington, 42 as adopted in

Delaware.43


40
   Accord Williams, 56 A.3d at 1056 (reversing defendant’s conviction not because the trial judge
denied his request for self-representation, but because the decision was made without a colloquy
and the required legal analysis). See Morrison, 135 A.3d at 75; Zuppo, 807 A.2d at 547. See also
Walker, 2007 WL 481957, at *2 n.6 (citing Stigars, 674 A.2d at 479) (recognizing that the
determination of a knowing and voluntary request to proceed pro se is discretionary); McKaskle,
465 U.S. at 177 n.8 (recognizing that the trial judge may be required to make numerous rulings
reconciling a pro se defendant’s objection to participation of counsel, but nothing under the
Faretta progeny suggests that such decisions should not receive typical deference).
41
   See infra Section III(A).
42
   466 U.S. 668 (1984).
43
   Albury v. State, 551 A.2d 53 (Del. 1988).
                                               15
      Under Strickland, the movant must show that (1) trial counsel’s

representation fell below an objective standard of reasonableness; and (2) there is a

reasonable probability that, but for trial counsel’s unprofessional errors, the result

of the proceeding would have been different.44 Failure to prove either prong will

render the claim insufficient. 45      Moreover, the Court shall dismiss entirely

conclusory allegations of ineffective counsel.46 The movant must provide concrete

allegations of prejudice, including specifying the nature of the prejudice and the

adverse affects actually suffered.47

      With respect to the first prong—the performance prong—the movant must

overcome the strong presumption that counsel’s conduct was professionally

reasonable.48 To satisfy the performance prong, Defendant must assert specific

allegations to establish that Trial Counsel acted unreasonably as viewed against

“prevailing professional norms.” 49       With respect to the second prong—the

prejudice prong—cumulative error can satisfy the prejudice prong when it

undermines confidence in the verdict.50




44
   Strickland, 466 U.S. at 687.
45
   Id. at 688; Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
46
   Younger, 580 A.2d at 555; Jordan v. State, 1994 WL 466142, at *1 (Del. Aug. 25, 1994).
47
   Strickland, 466 U.S. at 692; Dawson, 673 A.2d at 1196.
48
   Strickland, 466 U.S. at 687–88.
49
    Id. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations of
ineffectiveness will not suffice.”).
50
   See Starling v. State, 130 A.3d 316, 336-37 (Del. 2015).
                                           16
          At the beginning of the February 1994 Hearing, the Court instructed Trial

Counsel to interject if there were any issues with Defendant’s colloquy. Once the

colloquy was completed, the Court again asked Trial Counsel if he had anything to

offer. Trial Counsel did not object to the colloquy.

          Defendant asserts that the Court’s ruling on the issue of self-representation

at the February 1994 Hearing was clearly contrary to the United States Supreme

Court’s holding in Faretta v. California.51 Defendant argues that Trial Counsel’s

failure to object to the colloquy and file a motion for an additional hearing

demonstrates a lack of requisite knowledge that falls short of an objective standard

of professional reasonableness.52 Defendant argues that he suffered prejudice from

Trial Counsel’s ineffectiveness because a timely objection may have caused the

Court to recognize its misinterpretation of law and grant Defendant’s request to

proceed as a self-represented litigant.      Defendant contends that Trial Counsel

continually failed to protect Defendant’s right to self-representation throughout

Defendant’s subsequent proceedings, causing Defendant irrevocable prejudice.

          This Court finds that Defendant fails to meet the required burden to

overcome the strong presumption that Trial Counsel’s representation was

objectively reasonable. Trial Counsel was appointed to represent Defendant on

November 1, 1993. Defendant filed his appeal from the denial of Defendant’s First

51
     422 U.S. 806 (1975).
52
     Strickland, 466 U.S. at 687-88.
                                            17
SLR Motion on November 3, 1993, just two days later.53 The Court’s November

10, 1993 letter made clear that the Court would take no further action while

Defendant’s appeal was pending. Accordingly, Trial Counsel could not have been

expected to file motions asserting Defendant’s right to self-representation prior to

December 22, 1993, when the Delaware Supreme Court dismissed Defendant’s

appeal as interlocutory.

       The February 1994 Hearing was conducted shortly after the Delaware

Supreme Court’s dismissal of Defendant’s appeal. While Trial Counsel failed to

object to the form of the Court’s colloquy during the February 1994 Hearing, Trial

Counsel immediately raised Defendant’s application for self-representation during

the March 1994 Hearing.54

       Furthermore, Trial Counsel’s effectiveness must be evaluated under the

totality of the circumstances surrounding representation. 55 When the February

1994 Hearing is viewed in conjunction with the case’s procedural history56 and the

remaining balance of Trial Counsel’s representation, Defendant fails to overcome

the presumption that Trial Counsel conducted himself in accordance with


53
   Defendant filed the appeal as a self-represented litigant.
54
   See State v. Johnson, No. 92006336, at 3 (Del. Super. Mar. 11, 1994) (TRANSCRIPT) (“I
suppose the first thing that needs to be addressed, and Mr. Johnson reminded me, although he
didn’t have to remind me, was his continuing application to represent himself not just in this
matter but in the criminal matters that are pending against him . . .”).
55
   Strickland, 466 U.S. at 681.
56
   Defendant unilaterally filed duplicative and procedurally defective motions regarding the self-
representation issue throughout Trial Counsel’s representation.
                                               18
professional norms.57        Although Defendant argues that a timelier objection may

have caused the Court to reconsider its position, this contention does not rise to the

level of a concrete and specific allegation of an adverse effect actually suffered

from Trial Counsel’s deficient performance.58

V.        CONCLUSION

          Defendant voluntarily revoked his request for self-representation during the

March 1994 Hearing and the May 1994 Hearing. Even if the colloquy and legal

analysis regarding self-representation during the February 1994 Hearing was

inadequate, the denial of Defendant’s request was not prejudicial in light of

Defendant’s subsequent waiver. Finally, Defendant fails to demonstrate that Trial

Counsel was ineffective by not protecting Defendant’s right to self-representation.

Accordingly, Defendant’s PCR Motion does not present adequate grounds for

relief.




57
   See Strickland.466 U.S. at 689 (“A fair assessment of attorney performance requires 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.”).
58
   See id. at 692; Dawson, 673 A.2d at 1196.
                                                19
     NOW, THEREFORE, this 11th day of August, 2016, Defendant’s

Motion for Postconviction Relief is hereby DENIED.

     IT IS SO ORDERED.

                                  Andrea L. Rocanelli
                                  ___________________________________
                                  The Honorable Andrea L. Rocanelli




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