           IN THE SUPREME COURT OF THE STATE OF DELAWARE


EVERETT URQUHART,                    §
                                     §     No. 16, 2018
      Defendant Below,               §
      Appellant,                     §     Court Below—Superior Court
                                     §     of the State of Delaware
      v.                             §
                                     §     Cr. ID No. 1407012946 (N)
STATE OF DELAWARE,                   §
                                     §
      Plaintiff Below,               §
      Appellee.                      §

                         Submitted: November 14, 2018
                         Decided:   January 24, 2019
                         Revised:   February 11, 2019

Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and
TRAYNOR, Justices, constituting the Court en Banc.

Upon Appeal from the Superior Court of the State of Delaware: REVERSED and
REMANDED.

Eugene J. Maurer, Jr., Esquire and Elise K. Wolpert, Esquire, (argued), Eugene J.
Maurer, Jr. P.A., Wilmington, Delaware, for Appellant, Everett Urquhart.

Abby Adams, Esquire, Department of Justice, Georgetown, Delaware, for Appellee,
State of Delaware.




SEITZ, Justice, for the Majority:
         A New Castle County grand jury indicted Everett Urquhart for the armed

robbery of a corner grocery store in Wilmington. Urquhart was poor and needed a

public defender. In the five months before trial, three different public defenders

represented Urquhart at preliminary court hearings. A fourth public defender would

be his trial counsel, assigned to defend Urquhart against charges carrying a lengthy

minimum prison sentence.

         Because of a trial the preceding week, and other professional commitments

before that, Urquhart’s trial counsel did not meet with Urquhart to prepare for trial.

The morning of trial was also the first time trial counsel showed Urquhart the State’s

key evidence against him. Before jury selection, Urquhart expressed frustration and

confusion to the court about seeing his trial counsel for essentially the first time the

morning of trial and seeing the State’s evidence against him. Trial went ahead, and

a Superior Court jury convicted Urquhart of all charges. The judge sentenced him

to fifteen years in prison. We affirmed the convictions on direct appeal.1

         Urquhart moved for post-conviction relief, and claimed that his trial counsel’s

absence before trial denied him his Sixth Amendment right to the assistance of

counsel. The Superior Court denied the motion. The question is now before us—

whether a defendant’s Sixth Amendment right to the assistance of counsel in a

serious felony trial requires more than the mere presence of a defense attorney the


1
    Urquhart v. State, 133 A.3d 981, 2016 WL 768268 (Del. Feb. 26, 2016) (TABLE).
                                               2
day of trial. We find that it does, and reverse Urquhart’s conviction and remand for

a new trial.

                                               I.

        On July 15, 2014 a masked man wearing a black hooded North Face jacket

robbed a corner store in Wilmington. A security camera captured the robbery. A

witness told police she saw someone flee the area in a four-door green sedan and

gave police the license plate number. The car belonged to Caree Matsen, who told

police she loaned the car to her sister’s boyfriend, Urquhart. The police found

Urquhart’s belongings in Matsen’s sister’s bedroom, and found cell phone photos of

him wearing a black hooded North Face jacket. Police arrested Urquhart on July 18,

2014.

        The State charged Urquhart with first degree robbery, possession of a firearm

during the commission of a felony, wearing a disguise during the commission of a

felony, first degree reckless endangering, and possession of a firearm by a person

prohibited. Urquhart could not afford a private attorney, and was assigned a public

defender. Before his arraignment, Urquhart had the following contacts with defense

counsel:2

             July 28, 2014: A public defender represented Urquhart at the
              preliminary hearing.3
2
  The record is unclear which attorneys contacted Urquhart between August 14th and September
30th.
3
  App. to Opening Br. at A53 (Pet’r’s Am. Mot. for Post-Conviction Relief, Urquhart v. State, No.
1407012946, at 5 (Del. Super. July 10, 2017)).
                                               3
            July 31: Trial counsel sent Urquhart a letter of representation
             explaining the trial process.4

            August 14: A public defender, possibly trial counsel, met with
             Urquhart and might have reviewed the probable cause affidavit
             with hm.5

            August 27: Urquhart called trial counsel and discussed filing a
             motion to dismiss the indictment.6

            September 2: A public defender sent Urquhart a copy of
             discovery from the State.7

            September 30: A public defender sent Urquhart the case
             scheduling order.8

            October 20: A public defender represented Urquhart at the first
             case review, when he was arraigned.9

       After arraignment and leading up to trial, Urquhart had the following

contacts with defense counsel:




4
  Id. at A81 (Trial Counsel Aff., Urquhart, No. 1407012946, ¶ 2 (Del. Super. Aug. 31, 2017)).
5
  Id. (Trial Counsel Aff. ¶ 3). Trial counsel told the court that he met with Urquhart “back in July.”
Id. at A140 (Trial Tr., Urquhart, No. 1407012946, at 20 (Del. Super. Feb. 3, 2015)). An e-mail
addressed to trial counsel, however, suggests that there were no prison visits between Urquhart’s
arrest on July 18, 2014 and the final case review on January 26, 2015. Id. at A100 (E-mail Jan.
26, 2015). It appears that the only time trial counsel could have met with Urquhart, according to
the trial transcript and the e-mail, is the date of Urquhart’s arrest, July 18, 2014. This date is not
referenced in trial counsel’s affidavit.
6
  App. to Opening Br. at A81 (Trial Counsel Aff., ¶ 5); Id. at A100 (E-mail).
7
  Id. at A82 (Trial Counsel Aff. ¶ 6).
8
  Id. at A81 (¶ 4).
9
  Id. at A82 (¶ 12); Id. at A100 (E-mail).
                                                  4
            November 10: Trial counsel spoke with him by phone to explain
             that he was busy with another trial, and that “discovery is still
             forth coming” and he would “send it as [he] receive[d] it.”10

            November 14: Trial counsel sent him a second copy of the State’s
             earlier discovery responses. These were the same responses sent
             to Urquhart on September 2.11

            January 26, 2015: A different public defender represented
             Urquhart at the final case review.12

       Trial counsel’s supervisor represented Urquhart at his final case review. At

the review, the State offered Urquhart a plea with “a minimum of 15 years of

prison.”13 Urquhart had not seen the State’s evidence against him, and rejected the

plea offer. In an e-mail after the review, trial counsel’s supervisor warned trial

counsel that Urquhart had received “[n]o video or prison visit since his July 18, 2014

arrest”14 and “[a]s soon as you can, I would suggest you turn your attention to this

case to determine what you need to be prepared for trial.”15



10
   Id. at A82 (Trial Counsel Aff., ¶ 6). It is unclear if trial counsel was forgetting this event when
he stated to the court that trial counsel did not contact Urquhart between the arraignment and trial.
See id. at A144 (Trial Tr., at 24).
11
   The second copy was just that—a duplicate of the first copy, with no additional material. Neither
the first nor the second copy of discovery contained the video surveillance footage or the cell phone
download. See id. at A100 (E-mail).
12
   Id.
13
   Id.
14
   Id.
15
   Id. The e-mail also informs trial counsel that the evidence included “video surveillance of the
crime [and] a cell phone dump—neither of which appears to have made it to your file.” Id. Trial
counsel had received the video and cell phone photos five days earlier. Id. at A97 (Letter from
Brian J. Robertson, Deputy Attorney Gen. to Trial Counsel, Pub. Def., Jan. 21, 2015). Trial
counsel sent the supplemental discovery responses to Urquhart two days after the final case review.
Id. at A81–A82 (Trial Counsel Aff., ¶ 9). Trial counsel should have requested the surveillance
                                                  5
       Urquhart was evidently frustrated with his lack of contact with trial counsel

and the progression of his case. On November 5, 2014, Urquhart filed a pro se

motion to compel discovery materials.16 Additionally, his only two-way contact

with trial counsel were calls he initiated.17 The week before trial, Urquhart’s trial

counsel sent him the State’s supplemental discovery responses which contained the

surveillance footage and photos. Given prison mail delays, Urquhart did not receive

the evidence until his trial counsel brought copies for Urquhart the morning of trial.18

       Despite his supervisor’s warning to get on top of the case, trial counsel did

not speak to or meet with Urquhart until February 3, 2015—the morning of trial.

Trial counsel showed Urquhart the State’s surveillance footage and photographs.19

The State also offered Urquhart a five-year plea deal.20 Urquhart turned it down.21

Before jury selection, Urquhart addressed the court, expressing his frustration with

his current situation:



footage earlier, because it was mentioned at Urquhart’s preliminary hearing. Id. at A109–A10
(Prelim. Hr’g Tr., Urquhart, No. 1407012946, at 8–9 (Del. Super. July 28, 2014)).
16
   Id. at A2 (Super. Ct. Docket, Urquhart, No. 1407012946. at 2).
17
   Id. at A100 (E-mail).
18
   See State v. Urquhart, No. 1407012946, Memo. Op. at 5 (Del. Super. Dec. 7, 2017) (hereinafter
“Memo. Op.”); App. to Opening Br. at A82 (Trial Counsel Aff., ¶ 10). His trial counsel received
the supplemental discovery one week earlier, on January 21, 2015.
19
   There were two DVDs with images from the surveillance videos and two CDRs with sixty-four
images from surveillance and cell phones. Id. at A97 (Robertson Letter, ¶¶ 4–8). The State
acknowledged that Urquhart would likely not have been able to see the video, just the still photos.
Urquhart v. State Oral Argument, Delaware Supreme Court (Nov. 14, 2018),
https://livestream.com/accounts/5969852/events/8448562/videos/183565127 at 32:30.
20
   App. to Opening Br. at A82 (Trial Counsel Aff., ¶ 10).
21
   Id.
                                                6
          Mr. Urquhart: I just don’t understand a lot of things right now. It’s
          too much at once. Like, I’m just hearing stuff for the first time today,
          and I don’t—I don’t even know what’s coming on. I’m thinking they
          coming to trial, they do have this, they don’t have this, and all this stuff
          is coming out of nowhere. . . . I want to find out about this, what’s
          going on. I just want some help. I just need somebody to let me know
          something, what’s going on. I never—nothing. All I know is this, Your
          Honor: A plea. That’s all I keep hearing. Plea this, plea that.

          The Court: I am not suggesting you take your plea. I just want to make
          sure that you understand that you were extended an offer and you
          decided to reject it. I don’t care whether you plea or not.22

          He next asked to address the court about the evidence trial counsel showed

him that morning—the video surveillance and cell phone photos:

          Mr. Urquhart: Your Honor, I just want to know if somebody want to
          come to me and show me all the evidence that they want to pop up with
          tomorrow, next week, or whatever is going on, because every couple of
          seconds, or every other day, I’m getting stuff late. I don’t know what’s
          going on. I don’t know why. I just came here today, I’m seeing pictures
          for the first time. I’m seeing a lot of stuff for the first time. I don’t
          know nothing about that stuff.

          The Court: What are you seeing for the first time, sir?

          Mr. Urquhart: Pictures. And also out of a cell phone that’s not even
          mine—I don’t even know what’s going on. . . . And, also, it just—it
          just—a lot of things that just—I don’t understand it. I don’t, at all. I
          don’t know what’s going on.

          The Court: All right.

          Mr. Urquhart: I came here today. I just want justice. I just want some
          help. I decided not to [plea]. I just want some help. I don’t know what
          is going on.



22
     Id. at A130–31 (Trial Tr., at 10–11).
                                               7
          The Court: Are you telling me that you are dissatisfied with your
          representation?

          Mr. Urquhart: I’m not saying—like, I’m not saying I’m
          dissatisfied. . . . I come here today. Now it’s just like—it’s throwing
          me for a loop.

          The Court: Have you met with [trial counsel] before today?

          Trial Counsel: No, Your Honor. And I can explain why, Your Honor.
          I met with him back in July, and then I started a trial, a capital murder
          trial, that lasted from September to mid-December. At his first case
          review the case was covered by [another defense attorney]. The second
          case review, final case review, I was actually in another trial that did
          not end until Thursday of last week . . . .

          The Court: [trial counsel], I can understand your schedule.

          Trial Counsel: We met today. I showed him the pictures. The
          pictures—I received a package from the State dated January 21st. It
          would have come while I was in the trial. I was not able to send it to
          him until the 28th, that’s when my secretary was able to send it out. But
          he has not received them.23

                                             ...

          The Court: Your client has not seen these [pictures] until today?

          Trial Counsel: He saw them this morning, Your Honor.

          The Court: I gather because of your schedule, [Trial Counsel], you
          haven’t had a chance to meet with your client?

          Trial Counsel: Your Honor—

          The Court: Personally before today.

          Trial Counsel: Before today; no, Your Honor, I have not.




23
     Id. at A137–40 (Trial Tr., at 17–20).
                                                   8
          The Court: Have you been able to communicate with him by
          telephone?

          Trial Counsel: He has written me letters, and I have not been able—in
          response to a letter I did send it out, but he hadn’t received the
          information that I—

          The Court: Well, I can understand the schedule that you have, so don’t
          feel that you are personally at issue here.

          Trial Counsel: I understand that, Your Honor.

          The Court: But has he heard from you before today?

          Trial Counsel: No, he has not had an opportunity. I went from one
          trial into another trial into another trial.24

                                             ...

          The Court: I think—I take it, frankly, the defendant to be asking me
          pro se for a continuance? Is that correct, sir? Stand up, sir. Do you
          want a delay in your trial so that you can go over this stuff; is that what
          you are asking for?

          Mr. Urquhart: I just wanted to know, like, how this stuff—how is this
          stuff, like, allowed in? I just don’t understand it.

          The Court: Mr. Urquhart, what I am asking you is are you asking me
          to delay the trial?

          Mr. Urquhart: No, sir.

          The Court: Then [trial counsel] can explain to you how this stuff is
          coming in, if it comes in. I don’t know if it is coming in. I haven’t
          ruled on it yet.25

                                             ...




24
     Id. at A143–44 (Trial Tr., at 23–24).
25
     Id. at A144–45 (Trial Tr., at 24–25).
                                                   9
       Mr. Urquhart: I don’t understand nothing what’s going on. I’m asking
       for help.26

       Instead of trial counsel speaking up and asking for a continuance, the court

put the onus on Urquhart to request a delay. Urquhart declined, and trial proceeded

that day. After a three-day trial, the jury convicted Urquhart of all charges, and the

court sentenced him to forty-three years at Level V incarceration, suspended after

fifteen years, followed by decreasing levels of supervision. He appealed on June 8,

2015, and this Court affirmed his convictions.27 The Superior Court eventually

appointed new counsel to represent Urquhart in post-conviction proceedings.

       Urquhart claimed in his postconviction motion that trial counsel’s failure to

meet with him and prepare for trial deprived him of his Sixth Amendment right to

the assistance of counsel. The claim was not, however, stated as a typical ineffective

assistance of counsel claim under the United States Supreme Court case Strickland

v. Washington,28 where a defendant must prove both counsel’s ineffectiveness and

prejudice. Instead, Urquhart relied on a United States Supreme Court case decided

the same day as Strickland—United States v. Cronic.29 In Cronic, the Supreme

Court recognized that, when the accused is completely denied counsel at a critical

stage of the judicial proceedings, the accused is excused from demonstrating



26
   Id. at A146 (Trial Tr., at 26).
27
   Urquhart v. State, 133 A.3d 981, 2016 WL 768268 (Del. Feb. 26, 2016) (TABLE).
28
   467 U.S. 1267 (1984).
29
   466 U.S. 648 (1984).
                                            10
prejudice under Strickland.            Urquhart argued that he was excused from

demonstrating prejudice because trial counsel failed to represent him in the critical

pretrial stage of the proceedings.

       The Superior Court agreed with the State that the Supreme Court’s Cronic

decision required that Urquhart’s counsel be “completely absent” from

representation to forgo Strickland’s prejudice requirement. Because trial counsel

supposedly met with Urquhart once, spoke on the telephone with him twice, and sent

him five letters before trial, the Superior Court found that trial counsel was not

completely absent during the pretrial proceedings.30 Thus, Urquhart could only

pursue an ineffectiveness claim under Strickland, which required a showing of

prejudice. Because Urquhart did not argue prejudice, the Superior Court denied

postconviction relief.31

                                               II.

       This Court reviews the denial of a motion for postconviction relief for an

abuse of discretion.32 Legal and constitutional questions are reviewed de novo.33




30
   Memo. Op., at 9–10.
31
   Urquhart also argued that his counsel was ineffective for failing to investigate two potential
witnesses. The court rejected this argument, finding that counsel made a strategic choice that was
“well within the range of professionally reasonable judgments.” Id. at 12. Urquhart did not appeal
this aspect of the Superior Court’s decision.
32
   Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
33
   Ploof v. State, 75 A.3d 840, 851 (Del. 2013).
                                               11
                                                A.

       With any appeal from a motion denying postconviction relief, we first address

whether Urquhart’s motion is timely and meets the requirements of Superior Court

Criminal Rule 61.34 This is Urquhart’s first motion for postconviction relief. It was

filed within one year after conviction. Further, a Sixth Amendment claim arguing

ineffective assistance of counsel cannot be raised on direct appeal and thus his

motion is not repetitive or procedurally defaulted.35 Urquhart’s claims are not barred

or procedurally defaulted under Rule 61.

                                                B.

       As another preliminary matter, we address the State’s argument that Urquhart

waived his ineffective assistance of counsel claims by stating the morning of trial he

was not dissatisfied with his trial counsel and declined, in the Superior Court’s

words, a “pro se” continuance.36 According to the State, “Urquhart could have

obtained a continuance and gone over any evidentiary questions with his attorney,

and taken more time to prepare his defense, but he declined.”37                        Thus, he


34
   We apply the version of Rule 61 in effect at the time the motion is filed. Bradley v. State, 135
A.3d 748, 757 (Del. 2016). Urquhart filed this motion for postconviction relief in 2016, at which
time the 2015 version of Rule 61 was in effect.
35
   Preston v. State, 306 A.2d 712, 715–16 (Del. 1973) (“[T]he issue of the effectiveness and
competency of defense counsel may not be raised for the first time on direct appeal from a
conviction . . . .”).
36
   Id. at A144–45 (Trial Tr., at 24–25).
37
   Answering Br. at 11. The State also suggests that Urquhart turned down the continuance because
he suspected one witness would not show up. But Urquhart had heard the State explicitly state
that the witness was present and available to testify immediately before this. App. to Opening Br.
at A126 (Trial Tr., at 6).
                                               12
“affirmatively waived any claim regarding trial counsel’s pretrial performance and

alleged lack of communication.”38

       An accused’s waiver of his Sixth Amendment right to effective counsel must

be knowing, intelligent, and voluntary.39 Here, Urquhart was in a state of confusion

when the trial judge addressed him about a continuance. He expressed a lack of

understanding of his predicament and requested help over ten times.40 When first

asked whether he wanted the continuance, Urquhart’s answer was to ask for

clarification about the State’s evidence he had seen for the first time. Neither the

judge nor Urquhart’s trial counsel responded to his question—the judge merely

rephrased the question, stating “Mr. Urquhart, what I am asking you is are you asking

me to delay the trial?”41 It was then that his trial counsel should have spoken up to

address Urquhart’s confusion or request a continuance on his behalf. Instead,

Urquhart’s trial counsel focused solely on explaining to the judge his reasons for

failing to meet with Urquhart. The judge stated that he understood counsel’s

caseload, telling him not to feel that he was “personally at issue.”42


38
   Answering Br. at 10.
39
   Morrison v. State, 135 A.3d 69, 76 (Del. 2016) (requiring any waiver of the right to counsel to
be knowing, intelligent, and voluntary).
40
   At the time of the first plea negotiations, Urquhart had not seen the most incriminating evidence
against him—the surveillance video and the photos—and thus arguably could not have appreciated
the value of a plea deal. And at the time of the second plea discussion on the morning of the trial,
Urquhart had just seen the photos for the first time because trial counsel had brought them to the
courthouse, and could not view the video evidence.
41
   Id. at A145 (Trial Tr., at 25).
42
   Id. at A144 (Trial Tr., at 24).
                                                13
       While Urquhart’s trial counsel was not responsible for his caseload, it did

cause trial counsel not to meet with his client to prepare for trial and should have led

him to pause and ask the court for a continuance.43 As we explained in Harden v.

State, while “the heavy caseloads that too many of our defense counsel carry may

impel them to push ahead without reflecting on the need for more time” this does

not negate counsel’s responsibility “to take the time necessary to develop a reasoned

approach to [trial] with the client’s input.”44 Viewed in the context of Urquhart’s

overall response to the court’s questions—repeated requests for help and

clarification—and trial counsel’s failure to speak up and request a continuance for

the benefit of his client, we find that Urquhart did not knowingly and intelligently

waive his right to later appeal his trial counsel’s failure to provide effective

assistance of counsel.

                                                III.

       We now reach the heart of this appeal—whether trial counsel’s failure to meet

with his client and prepare for trial violated Urquhart’s Sixth Amendment right to

the effective assistance of counsel in his criminal trial. On appeal, Urquhart and the

State essentially reiterate the arguments made in the Superior Court—for Urquhart,




43
   See Commonwealth v. Brooks, 839 A.2d 245, 250 (Pa. 2003) (“[A] busy schedule simply cannot
serve as a reasonable basis for failing to have personal contact with a client prior to that client’s
trial.”).
44
   180 A.3d 1037, 1049 (Del. 2018).
                                                14
trial counsel’s complete absence from the critical pretrial stage of the criminal

proceedings was indisputably ineffective, and under Cronic prejudice need not be

shown—and for the State, that counsel was not “completely absent” pretrial, his

claim fell under Strickland and not Cronic, and thus Urquhart was not excused from

demonstrating prejudice.

                                              A.

       The Sixth Amendment to the United States Constitution guarantees that “[i]n

all criminal prosecutions the accused shall enjoy the right … to have the Assistance

of Counsel for his defence.” The accused’s right to counsel “is a fundamental

component of our criminal justice system.”45 ‘“Of all the rights that an accused

person has, the right to be represented by counsel is by far the most pervasive for it

affects his ability to assert any other rights he may have.”’46 Because the right has

such special value, “[i]t has long been recognized that the right to counsel is the right

to effective assistance of counsel.”47 “If no actual ‘Assistance’ ‘for’ the accused’s

‘defence’ is provided, then the constitutional guarantee has been violated.”48

       In Bell v. Cone,49 the United States Supreme Court explained the interplay

between its two seminal Sixth Amendment cases—Strickland v. Washington and



45
   United States v. Cronic, 466 U.S. 648, 653 (1984).
46
   Id., quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956).
47
   McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
48
   Cronic, 466 U.S. at 654.
49
   535 U.S 685 (2002).
                                              15
United States v. Cronic.50 The difference between Strickland and Cronic is not one

“of degree but of kind.”51 In Strickland, the Court “announced a two-part test for

evaluating claims that a defendant’s counsel performed so incompetently in his or

her representation of a defendant that the defendant’s sentence or conviction should

be reversed.”52 The defendant must prove that “counsel’s ‘representation fell below

an objective standard of reasonableness’” and second that ‘“there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different….”’53

       In Cronic, the Supreme Court “identified three situations implicating the right

to counsel that involved circumstances ‘so likely to prejudice the accused that the

cost of litigating their effect in a particular case is unjustified.’”54 The first, and,

according to the Court, “most obvious” is the complete denial of counsel at “a critical

stage,”55 meaning “a step of a criminal proceeding, such as arraignment, that held

significant consequences for the accused.”56 A “critical stage” includes the pretrial




50
   See also Jackson v. State, 21 A.3d 27, 40 (Del. 2011) (“Two United States Supreme Court cases,
espousing divergent rules for divergent circumstances, embody the law of ineffective assistance
claims.”).
51
   Bell, 535 U.S. at 697.
52
   Id. at 695.
53
   Id., quoting Strickland, 466 U.S. at 688.
54
   Id., quoting Cronic, 466 U.S. at 658-59.
55
   Id., quoting Cronic, 466 U.S. at 659 (internal quotation marks omitted).
56
   Id. at 696.
                                               16
process.57 Next, the presumption is warranted if “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.”58 And finally, the Cronic

presumption should be applied when “counsel is called upon to render assistance

under circumstances where competent counsel very likely could not….”59 When

any of these three situations occur, the likelihood of prejudice is so high that “the

defendant need not show that the proceedings were affected.”60




57
   Deputy v. State, 500 A.2d 581, 591 n.13 (Del. 1985) (citing Powell v. Alabama, 287 U.S. 45, 54
(1932)) (“The Supreme Court has stated that the presence of counsel at critical pretrial stages is
often as important, if not more so, than the presence of counsel at trial.”). See also Gerstein v.
Pugh, 420 U.S. 103, 122 (1975) (“The Court has identified as ‘critical stages'
those pretrial procedures that would impair defense on the merits if the accused is required to
proceed without counsel.”); Mitchell v. Mason, 325 F.3d 732, 742 (6th Cir. 2003) (“[T]he pre-trial
period is indeed a critical stage, the denial of counsel during which supports a Cronic analysis.”);
see id. at 744 n.5 (“[T]he Supreme Court has considered the pre-trial period to be a critical stage
of the proceedings since at least 1932, when it handed down Powell.”).
58
   Cronic, 466 U.S. at 659.
59
   Bell, 535 U.S. at 696.
60
   Id. This Court has recently discussed Cronic claims. See, e.g., Sahin v. State, 72 A.3d 111, 114-
15 (Del. 2013) (finding Cronic was not the proper test where defense counsel suggested to the
court his client was lying); Jackson v. State, 21 A.3d 27, 41 (Del. 2011) (finding the defendant was
not completely denied counsel when he was represented “at all times during the trial, the appeal,
and the post-trial proceedings”); Cooke v. State, 977 A.2d 803, 850 (Del. 2009) (finding prejudice
was presumed when counsel proceeded with a guilty but mentally ill defense completely against
the defendant’s wishes to present a defense of factual innocence, which “failed to subject the
prosecution’s case to meaningful adversarial testing” under Cronic). In the Superior Court, in
Pringle v. State, 2011 WL 6000834 Del. Super. Nov. 17, 2011), aff’d on other grounds, 2011 WL
1087633 (Del. Mar. 13, 2013), the court found a defendant was not completely denied counsel
when the trial court granted his pro se motion to withdraw his guilty plea without giving him the
opportunity to consult with his counsel. The court explained that the defendant “had more than
ample opportunity to discuss his case with defense counsel” up until the sentencing hearing—and
his counsel “made it clear that he recommended to [the defendant] that he take the plea.” Pringle,
2011 WL 6000834, at *7. Pringle is distinguishable, however, because unlike the defendant in
Pringle, Urquhart did not have “ample opportunity” to discuss his case with his trial counsel nor
see the key evidence against him until the morning of trial.
                                                17
                                                B.

       Urquhart claims that his case falls under the first Cronic exception—that he

was completely denied counsel at the critical pretrial phase. A complete denial of

counsel occurs “when a criminal defendant must navigate a critical stage of the

proceedings against him without the aid of ‘an attorney dedicated to the protection

of his client’s rights under our adversarial system of justice.’”61 But, “bad lawyering,

regardless of how bad, does not support the [Cronic] presumption.”62 Under Cronic

the question is not whether Urquhart’s trial counsel was inadequate, but whether the

inadequacy rose to a complete denial of representation.

       The Superior Court held that Urquhart was not completely denied counsel

under Cronic because he was represented at the preliminary hearing, arraignment,

and both case reviews; and he received two phone calls and four letters.63 Urquhart

correctly points out, however, that all but two of these occurrences took place before



61
   Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997) (citing U.S. v. Swanson, 943 F.2d
1070, 1075 (9th Cir. 1991)); see Cronic, 466 U.S. at 655 n.11 (explaining a complete denial of
counsel occurs when “the performance of counsel [is] so inadequate that, in effect, no assistance
of counsel is provided” (quoting United States v. Decoster, 624 F.2d 196, 219 (D.C. Cir. 1976))).
62
   Sullivan v. State, 1998 WL 231264, at *22 (D. Del. Apr. 30, 1998), aff’d sub nom. Sullivan v.
Snyder, 187 F.3d 626 (3d Cir. 1999) (quoting McInerney v. Puckett, 919 F.2d 350, 353 (5th Cir.
1990)); see also Scarpa v. Dubois, 38 F.3d 1, 15 (1st Cir. 1994) (“Put bluntly, [when counsel’s]
errors are more an example of maladroit performance than of non-performance, Strickland
necessitates an inquiry into the existence of actual prejudice.”); Childress, 103 F.3d at 1229 (“In
essence, we have consistently distinguished shoddy representation from no defense at all.”).
63
   Memo. Op., at 1. Urquhart only received three distinct letters: the “fourth letter” (dated Nov.
14, 2014) sent “another copy” of the trial counsel’s discovery that was previously enclosed in the
“third letter” (dated Sept. 2, 2014). App. to Opening Br. at A82 (Trial Counsel Aff., ¶ 8). Urquhart
never received the fifth letter. Memo. Op. at 5.
                                                18
arraignment. The United States Supreme Court has emphasized that “the most

critical period of the proceedings” is “the time of their arraignment until the

beginning of their trial, when consultation, thorough-going investigation and

preparation [are] vitally important.”64         Although different counsel represented

Urquhart at court appearances before trial, for the nearly four months between

arraignment and trial, Urquhart received what appears to be one non-substantive

phone call and one transmittal letter from trial counsel.65 Trial counsel’s notes

summarized the phone call: “Spoke to client. Explained that I was in a trial. That

discovery is still forth coming and that I would send it as I received it.”66

       This entry, trial counsel explained, was “an indication to trial counsel that [he]

pulled and reviewed discovery with the client.”67 Even if the entry indicated that he

reviewed discovery with Urquhart, trial counsel had not received the photos or

surveillance footage, and, as Urquhart points out, “[w]ithout that evidence, . . .

review of the discovery was inconsequential and did not provide [him] with an

opportunity to appreciate the evidence against him.”68 As for the November 14

letter, it contained a copy of the discovery trial counsel received from the State that



64
   Powell, 287 U.S. at 57.
65
   Opening Br. at 14–15.
66
   App. to Opening Br. at A82 (Trial Counsel Aff., ¶ 7). This call presumably only occurred
because Urquhart had filed a pro se motion to compel discovery which was then referred to trial
counsel by the court.
67
   Id.
68
   Opening Br. at 15.
                                              19
had already been sent to Urquhart on September 2.69 This second copy still lacked

the photos and surveillance footage—more than three months after the State had

revealed their existence at the preliminary hearing.70 The grim reality is, in the

critical pretrial phase when trial counsel must meet with his client to review the

evidence, develop strategy, and prepare for trial, that did not occur. Trial counsel

admitted as much when asked by the judge.71

       We would not be the first court to find a complete denial of counsel under

Cronic in the pretrial phase when counsel was absent before trial and did not meet

with his client to prepare for trial. In Mitchell v. Mason, the Sixth Circuit found the

defendant was completely denied counsel during the critical pretrial phase, when

“counsel was suspended from the practice of law for the month immediately

preceding trial, . . . met with [the defendant] for no more than six minutes over the

seven-month period before trial, . . . and the trial court repeatedly ignored [the




69
   App. to Opening Br. at A82 (Trial Counsel Aff., ¶ 8) (“Enclosed please find another copy of
your discovery dated September 2, 2014.”).
70
   Id. at A109–10 (Prelim. Hr’g Tr., at 8–9). It should be noted that trial counsel was not at the
preliminary hearing.
71
   Id. at A139 (Trial Tr., at 19) (In response to the court asking “have you met with [trial counsel]
before today?” trial counsel responded “[n]o, Your Honor”). See also Weathers v. State, 149 A.3d
1194, 1209 (Md. Ct. Spec. App. 2016) (“[Defendant’s counsel] conceded that he had not yet
discussed the surveillance video with appellant. Indisputably, the video was a key piece of the
evidence against appellant. Contrary to any suggestion otherwise, we question whether defense
counsel could truly be prepared when he or she did not discuss the primary evidence in the case
with the client prior to the commencement of trial. We would be presented with a much different
case had the court simply granted a brief postponement, or perhaps simply continued the case until
the next day, so that these communications could take place.”).
                                                20
defendant’s] entreaties for counsel who would properly prepare a defense.”72 The

court focused on counsel’s duty to investigate, explaining there was no way to

discharge the duty if he failed to consult with his client. The court concluded that,

in these circumstances, “no effort to consult with the client was made,” and thus the

defendant was completely denied his Sixth Amendment right to the assistance of

counsel during a critical pretrial stage of the proceedings.73

       The facts here are similar. While Urquhart’s counsel was not suspended from

the practice of law, he “went from one trial into another trial into another trial” over

Urquhart’s entire pretrial period—requiring different public defenders to represent

Urquhart in his place at the pretrial hearings, including the final case review.74 In

addition, while counsel in Mitchell met with the defendant for no more than six

minutes, Urquhart’s counsel did not meet with him for almost four months before

trial. Lastly, and most significantly, Urquhart’s repeated requests for help were

effectively pushed aside by his trial counsel and the court. Thus, following Mitchell

would lead to the conclusion that Urquhart was completely denied counsel under

Cronic.75



72
   325 F.3d 732, 742 (6th Cir. 2003).
73
   Id. at 744.
74
   App. to Opening Br. at A144 (Trial Tr., at 24).
75
   In Hunt v. Mitchell, 261 F.3d 575, 584 (6th Cir. 2001), the Sixth Circuit Court of Appeals found
that forcing trial to proceed without allowing counsel more time to prepare amounted to a complete
denial of representation. The court found there was “no indication that [the defendant] consulted
with his lawyer even once before the start of voir dire.” Id. at 583. In addition, “counsel was not
                                                21
       We recognize that the line between a Strickland violation and a Cronic

violation is not always easy to draw. Other courts have given Cronic a limited

reading, making a distinction between an actual complete denial of counsel and a

constructive complete denial—the situation in Mitchell.76 The Superior Court took

the conservative tack, and held that the mere presence of counsel satisfied Cronic,

regardless of the degree of counsel’s effectiveness.

       This appeal has elements of both a Cronic and a Strickland violation, and leads

us to the conclusion that the Sixth Amendment demands more than the presence the

morning of trial of a warm body with a law degree. No one seriously argues that

trial counsel’s failure to meet in advance of trial with a client facing a serious felony

charge with lengthy minimum mandatory jail time was effective. Under the stark

facts in this appeal—no advance discussion with Urquhart of trial strategy, what

witnesses to call, how to respond to the State’s evidence, whether the defendant

should testify, and no sober conversation with counsel outside the distractions of the

morning of trial whether to enter into plea negotiations and accept a plea—the



even afforded ten minutes to confer with [the defendant] to discuss the possibility of entering into
a plea agreement.” Id.
76
    See, e.g., U.S. v. Nguyen, 619 F. App’x 136, 140 (3d Cir. 2015) (in a “complex” case, one
meeting the week of trial was sufficient to remove the issue from the Cronic presumption); State
v. Miller, 216 N.J. 40, 62 (2013) (affirming a conviction after defendant only had one brief meeting
with counsel); Parker v. Booker, 2011 WL 5984035, at *15 (E.D. Mich. Nov. 30, 2011), aff'd
Parker v. Burt, 595 F. App’x 595 (6th Cir. 2015) (finding one brief discussion with counsel was
enough to remove the case from Cronic grounds); see also Morris v. Slappy, 461 U.S. 1, 14 (1983)
(rejecting the argument that the Sixth Amendment “guarantees a meaningful relationship between
an accused and his counsel”).
                                                22
defendant should not have to point to any specific event of prejudice and disprove

the State’s contention that trial counsel was able to “wing it” enough at trial to satisfy

the Sixth Amendment. As the Supreme Court said in Cronic, some situations

“ma[k]e it so unlikely that any lawyer could provide effective assistance that

ineffectiveness [i]s properly presumed without inquiry into actual performance at

trial.”77

       Even if specific prejudice need be shown, under a Strickland analysis trial

counsel’s pretrial ineffectiveness prejudiced Urquhart in plea negotiations.

Postconviction counsel did not argue prejudice, complicating our review of a

Strickland claim. It would have been preferable for postconviction counsel to make

a fully briefed Strickland claim as an alternative to Cronic. But, the State has

consistently maintained that Strickland, not Cronic, applies to this appeal, and that

Urquhart has not demonstrated prejudice. Because the prejudice is manifest from

the record, in the interest of justice, we will consider prejudice under Strickland.78

       The reasonable probability standard under Strickland asks whether there is “a

probability sufficient to undermine confidence in the outcome.”79 In the context of



77
   Cronic, 466 U.S. at 661 (discussing Powell, 287 U.S. 45, where defense counsel was appointed
the day of trial in a capital murder case).
78
   Sup. Ct. R. 8 (questions may be considered and determined “when the interests of justice so
require”); N. River Ins. v. Mine Safety Appliances Co., 105 A.3d 369, 382-83 (Del. 2014)
(rejecting a Rule 8 argument when the “broader issue” was raised below).
79
   Strickland, 466 U.S. at 694. See also Harrington v. Richter, 562 U.S. 86, 111–12 (2011)
(“Strickland asks whether it is ‘reasonably likely’ the result would have been different. This does
                                                23
a plea offer, Strickland requires a reasonable probability “that the plea offer would

have been presented to the court . . . that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer's terms would have been

less severe than under the judgment and sentence that in fact were imposed.”80 A

fair trial does not “wipe[] clean any deficient performance by defense counsel during

plea bargaining.”81

       Here, we think it is obvious that had the objective circumstances—the

evidence the State was going to present, the length of time Urquhart faced if he went

to trial and was convicted, and the likelihood of an acquittal—been the subject of

professionally adequate consultation between client and counsel, there is a

“reasonable probability” that Urquhart would have accepted the plea. That is all

Strickland requires.82

       Trial counsel in a criminal case must discuss with his client the possibility of

a plea instead of going to trial, especially if the State has offered to resolve the case

for a sentence significantly shorter than the defendant could face if convicted at




not require a showing that counsel’s actions ‘more likely than not altered the outcome.’”) (quoting
Strickland, 466 U.S. at 693, 697).
80
   Burns v. State, 76 A.3d 780, 785 (Del. 2013) (quoting Lafler v. Cooper, 566 U.S. 156, 164
(2012)).
81
   Lafler, 566 U.S. at 169.
82
   Strickland, 466 U.S. at 694 (holding that, under Strickland’s prejudice prong, all that the
defendant must show is “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different”).
                                                24
trial.83   Plea discussions are sensitive, and for counsel to be effective in a case like

this, counsel must build trust between attorney and client through pretrial contact, a

review of the strengths and weaknesses of the State’s case, and a frank discussion

about the defendant’s chances of an acquittal after trial.84 None of that happened

here before the day of trial.85 No groundwork was laid, no trust was built up, and

there was no review of the State’s evidence against him. Whether in a fit of pique

about his attorney’s performance, a state of confusion, or because he was “seeing

things for the first time,” “getting things late,” and “needing help,” Urquhart turned

down a plea offer of ten years less than offered at the final case review. Had trial

counsel performed his pretrial responsibilities, communicated with Urquhart, and

had counsel had a rational conversation with him outside the distractions of the

morning of trial, we think under Strickland there is a reasonable probability that “the

result would have been different.”


83
   Nat’l Legal Aid and Def. Ass’n., Performance Guidelines for Criminal Defense Representation,
§ 6.1, 6.3 (2006) (suggesting counsel should fully explore and explain options to defendant during
plea negotiations and explain the advantages and disadvantages of an offer); see also ABA
Standards for Criminal Justice: The Defense Function, Standard 4-5.1 (4th ed. 2015) (suggesting
counsel should promptly communicate any plea offer and all associated risks, hazards, or
prospects).
84
   See Brooks, 576 Pa. at 337–38 (2003) (“Without such a [in person] meeting, there is little to no
hope that the client will develop a fundamental base of communication with his attorney, such that
the client will freely share important information and work comfortably with the lawyer in
developing a defense plan. Moreover, only a face-to-face meeting allows an attorney to assess the
client's demeanor, credibility, and the overall impression he might have on a jury.”).
85
   In trial counsel’s affidavit, he states that the morning of trial Urquhart agreed not to call any
witnesses. App. to Opening Br. at A82–A83 (Trial Counsel Aff., 2–3). We are, however, skeptical
of after-the-fact rationalizations for not calling witnesses when the alternative would prove
difficult if not impossible—getting witnesses to appear with no notice and no subpoena.
                                                25
                                                IV.

          The parties have framed this dispute as a choice between two United States

Supreme Court cases—Cronic or Strickland. This appeal, however, has elements of

both cases. Under Cronic, its “presumption of prejudice is the fundamental idea that

a defendant must have the actual assistance of counsel at every critical stage of a

criminal proceeding for the court’s reliance on the fairness of that proceeding to be

justified.”86 Trial counsel was absent for the critical pretrial stage of Urquhart’s

prosecution.       Under Strickland, “prejudice can be shown if loss of the plea

opportunity led to a trial resulting in a conviction on more serious charges or the

imposition of a more severe sentence.”87               Urquhart could not make informed

decisions about the new plea offer.

          Not all plea decisions, including decisions to enter a plea on the morning of

trial, are subject to challenge for ineffective assistance of counsel. Obviously, there

are material differences between a case when a defendant faces a modest sentence

and the facts and law are not complex, and this case. In the former, defendant and

counsel can often come to a reasoned decision in a compact time frame. But where,

as here, the defendant faces serious charges and the possibility of generations of

prison time, the need for a correspondingly serious effort to counsel the client must



86
     Burdine v. Johnson, 262 F.3d 336, 345 (5th Cir. 2001).
87
     Lafler, 566 U.S. at 168.
                                                 26
be recognized if Strickland is to have its intended protective effect. And where, as

here, defense counsel has not engaged in a meaningful review of the evidence with

the defendant, who in turn tells the court that he is confused and needs help, we are

unwilling to ignore trial counsel’s shortcomings by saying that trial counsel did

competent work at trial with what he had. The Sixth Amendment requires more than

the physical presence of counsel the first day of trial in a serious felony case with

the possibility of a lengthy minimum mandatory incarceration.

       The Superior Court’s judgment is reversed, and the case remanded to the

Superior Court. Although the defendant has asked for a new trial, we leave it to the

Superior Court to decide whether a new trial should be ordered, or the State and the

defendant agree on another remedy.88 Jurisdiction is not retained.




88
  See Lafler v. Cooper, 566 U.S. 156, 174 (2012) (when counsel is ineffective in plea negotiations
the appropriate remedy “is to order the State to reoffer the plea agreement.”).
                                               27
VAUGHN, Justice, dissenting:

       The Majority finds that the Public Defender’s Office was ineffective in its

representation of Urquhart under both United States v. Cronic1 and Strickland v.

Washington.2 I disagree.

       For claims of ineffective assistance of counsel under Cronic, prejudice need

not be shown and is presumed in three specific situations.3 First and “[m]ost

obvious” is the “complete denial of counsel”—that is, where the accused is denied

counsel at a “critical stage” of trial.4 A “critical stage,” according to the Supreme

Court, is “a step of a criminal proceeding, such as arraignment, that [has] significant

consequences for the accused.”5 Prejudice is also presumed “if counsel entirely fails

to subject the prosecution’s case to meaningful adversarial testing.”6 Finally, “in

cases like Powell v. Alabama, where counsel is called upon to render assistance

under circumstances where competent counsel very likely could not, the defendant

need not show that the proceedings were affected.”7

       Urquhart relies upon the first situation—complete denial of counsel. I would

find that he was not completely denied counsel at any critical stage of the proceeding.


1
  466 U.S. 648 (1984).
2
  466 U.S. 668 (1984).
3
  See Bell v. Cone, 535 U.S. 685, 695-96 (2002) (listing the three situations that Cronic recognized
as involving circumstances “so likely to prejudice the accused that the cost of litigating their effect
in a particular case is unjustified” (quoting Cronic, 466 U.S. at 658-59)).
4
  Cronic, 466 U.S. at 659.
5
  Bell, 535 U.S. at 696.
6
  Cronic, 466 U.S. at 659.
7
  Bell, 535 U.S. at 696 (citing Powell, 287 U.S. 45, 53 (1932)).
Urquhart was represented by the Public Defender’s Office continuously from his

preliminary hearing to the completion of his direct appeal. An attorney from that

office appeared with Urquhart at every court proceeding, including his three-day

trial in the Superior Court. According to assigned trial counsel’s affidavit, trial

counsel met with Urquhart on August 14, 2014. In September 2014, trial counsel

sent Urquhart the State’s initial discovery response. On January 21, 2015, trial

counsel obtained supplemental discovery from the State and on January 28, 2015,

shortly prior to trial, sent it to Urquhart. As it developed, the supplemental discovery

apparently did not reach Urquhart at the prison before the February 3 trial date. On

the morning of trial, trial counsel discussed the case with Urquhart. In his affidavit,

trial counsel described his discussion of the case with Urquhart:

             On the day of trial, client confirmed what he had told trial
             counsel at a previous discussion: client did not have any
             witnesses or alibi witnesses for his case. Prior to the start
             of Trial[,] counsel reviewed the evidence and determined
             what evidence was objectionable or unauthenticated, as
             well as what evidence was admissible. A review of the
             evidence was that there was no evidence placing my client
             in the getaway car. Client was correctly confident that no
             one would identify him as “E.”

                    ....

             Trial counsel was aware of Nyla Miller as a potential
             witness. Trial counsel and client were also aware of the
             fact that no witness would identify him as the getaway
             driver or an operator of the car, and that Nyla Miller was
             absent from the Court. Prior to starting the trial, trial
             counsel and client discussed the facts concerning Nyla
             Miller, and agreed not to call her as a witness. We
                                           2
               concluded that there was no tactical advantage to calling a
               witness who could not provide an alibi, and who could
               provide detrimental and incriminating evidence. Trial
               counsel decided not to attempt to secure her appearance
               for the second day of trial.

                       ....

               Trial counsel was aware of the fact that there was a witness
               who identified a black jacket worn by the perpetrator.
               Trial counsel made a professional decision not to pursue
               this witness. Prior to trial, trial counsel discussed with
               client the fact that the “backhoe operator” could not and
               did not identify the perpetrator. Trial counsel, with client
               consent, wanted to focus on the fact that the client had a
               large and distinguishable tattoo that was not visible on the
               store’s video tape. Trial counsel had the video stilled,
               enlarged and presented as evidence.8

Trial counsel developed a strategy for trial and also discussed the State’s morning-

of-trial plea offer with Urquhart.

        Because Cronic requires a complete denial of counsel at a critical stage of the

proceeding, it is “very narrow” in scope and the burden of showing that it applies is

“very heavy.”9 I think the activities of the Public Defender’s Office, including

assigned trial counsel, set forth above, are sufficient to establish that Urquhart was




8
  App. to Appellant’s Opening Br. at A82-83.
9
  United States v. Roy, 855 F.3d 1133, 1144, 1144-45 (11th Cir. 2017) (en banc) (noting that “the
Supreme Court has repeatedly refused to find [Cronic] applicable” and “[o]nly once in the 30 years
since the Cronic decision was issued has the Supreme Court applied Cronic to presume prejudice”
(citing Penson v. Ohio, 488 U.S. 75, 88 (1988) (applying the presumption of prejudice when the
granting of an attorney’s motion to withdraw had left the petitioner “entirely without the assistance
of counsel on appeal”))), cert. denied, 138 S. Ct. 1279 (2018).
                                                 3
not “completely denied” counsel at a critical stage of the proceeding. I would reject

his Cronic claim and find that he is not entitled to a presumption of prejudice.

       I would find that Urquhart’s claim is governed by Strickland.10 The United

States Supreme Court has stated that the difference between Cronic and Strickland

“is not of degree but of kind.”11 They do not overlap. It is one or the other, but not

both. Here, counsel can be criticized for not requesting a continuance, for not being

more aggressive in obtaining the photos and surveillance footage earlier, for not

investigating the case more thoroughly, for not meeting with Urquhart before the

day of trial as the trial date approached, and perhaps for other things, but these are

all Strickland issues.

       Under Strickland, “[i]t is not enough for the defendant to show that errors had

some conceivable effect on the outcome of the proceeding.”12 The movant “must

make specific allegations of actual prejudice and substantiate them”;13 these

allegations must show “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”14 “A

reasonable probability is a probability sufficient to undermine confidence in the




10
   466 U.S. 668.
11
   Bell, 535 U.S. at 697.
12
   466 U.S. at 693.
13
   Outten v. State, 720 A.2d 547, 552 (Del. 1998) (en banc) (quoting Wright v. State, 671 A.2d
1353, 1356 (Del.) (en banc), cert. denied, 517 U.S. 1249 (1996)).
14
   Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 694).
                                              4
outcome.”15 “[I]t requires more than a showing of a theoretical possibility that the

outcome was affected.”16 In sum, the defendant must prove actual prejudice.17

       The problem is that Urquhart has not presented a Strickland claim in this

appeal and has not claimed that trial counsel’s conduct caused him any specific,

actual prejudice. The Majority thinks that if trial counsel had done more pretrial

preparation and discussed the case more fully with Urquhart before the morning of

trial, there is a reasonable probability that the result would have been different; that

is, Urquhart probably would have accepted the State’s plea offer.

       The record suggests otherwise. Urquhart’s first case review was held on

October 20, 2014. At that case review, no plea offer was made. His final case review

was held on January 26, 2015, in the week preceding trial. At that time, the State

made an offer with a fifteen-year minimum at Level V. Urquhart rejected that offer.

On the morning of trial, the State made a revised plea offer of five years at Level V.

Urquhart rejected that plea offer, stating to trial counsel, “I rather do 95 years then

[sic] take a plea to 5, [i]t all the same to me.”18




15
   Strickland, 466 U.S. at 694.
16
   Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992), cert. denied, 507 U.S. 954 (1993); see also
Strickland, 466 U.S. at 693 (“Even if a defendant shows that particular errors of counsel were
unreasonable, therefore, the defendant must show that they actually had an adverse effect on the
defense.”).
17
   Strickland, 466 U.S. at 693 (“[A]ctual ineffectiveness claims alleging a deficiency in attorney
performance are subject to a general requirement that the defendant affirmatively prove
prejudice.”).
18
   App. to Appellant’s Opening Br. at A82.
                                                5
       Urquhart’s only opportunity to take the five-year plea offer was on the

morning of trial. Whether Urquhart would have accepted the offer that morning if

his trial counsel had done more preparation or spoken more with him before the day

of trial is speculative. Urquhart has never even claimed that if trial counsel’s

representation had been different, he probably would have accepted the plea offer

made to him the morning of trial. The idea that he would have accepted the plea

offer if things had happened differently is not supported by the record. It is the kind

of hypothetical, theoretical prejudice that the Strickland standard specifically

rejects.19

       I would affirm the judgment of the Superior Court.




19
  See, e.g., Frey, 974 F.2d at 351 (“[A]lthough it is theoretically possible that, if [the defendant]
had proper assistance of counsel, the jury would have sentenced him to life imprisonment, that
outcome was not ‘reasonably probable.’”).
                                                 6
