           IN THE SUPREME COURT OF THE STATE OF DELAWARE


ALEX RYLE,                              §
                                        §     No. 566, 2015
      Defendant Below,                  §
      Appellant,                        §     Court Below – Superior Court
                                        §     of the State of Delaware
      v.                                §
                                        §     Cr. ID No. 1404000692
STATE OF DELAWARE,                      §
                                        §
      Plaintiff Below,                  §
      Appellee.                         §

                          Submitted: September 14, 2016
                          Decided:   October 11, 2016

Before HOLLAND, VAUGHN, and SEITZ, Justices.

                                      ORDER

      This 11th day of October, 2016, upon consideration of the parties’ briefs and

the record below, and following oral argument, it appears to the Court that:

      (1)    A Superior Court jury convicted Alex Ryle of multiple weapons

offenses. After his conviction, the Superior Court granted the State’s motion to

declare Ryle an habitual offender, and sentenced him to a total of twenty three

years at Level V, followed by decreasing levels of supervision. Ryle raises two

issues on appeal. First, he claims that the Superior Court Commissioner lacked the

authority to grant Ryle’s request to represent himself at trial. Ryle also argues that,

despite having a colloquy with the Commissioner about the risks of proceeding to

trial without counsel, he did not knowingly and voluntarily waive his right to
counsel. After careful consideration of Ryle’s arguments on appeal, we find them

to be without merit. Under the Superior Court rules, the Commissioner had the

authority to conduct non case-dispositive hearings and thus could hear and then

grant Ryle’s request to proceed to trial without counsel.                   Further, after an

independent review of the record, we find that the Commissioner adequately

reviewed with Ryle the risks of proceeding on his own, and are satisfied that his

waiver of the right to counsel was knowing and voluntary. We therefore affirm the

judgment of the Superior Court.

       (2)    On April 12, 2014, police arrested Ryle for evading probation

authorities. When the police searched Ryle incident to his arrest, they found a

handgun loaded with nine rounds of ammunition. At the time of his arrest, Ryle

was a person prohibited from possessing a gun because of prior convictions. A

grand jury indicted him on multiple weapons charges.1                   Ryle was appointed

counsel, but strongly disagreed with counsel’s legal strategy. Counsel moved to

withdraw on October 16, 2014. On October 27, 2014, the Commissioner held a

hearing on counsel’s motion to withdraw, and addressed Ryle’s desire to waive

counsel and represent himself.

       (3)    At the hearing, the Commissioner asked Ryle multiple times whether

he wanted to proceed with new counsel. She informed him of the charges against


1
  The State also charged Ryle with a drug possession offense, but dismissed the charge before
trial.
                                               2
him and explained the potential penalties he was facing. The Commissioner asked

about his level of education and advised him that it was unwise to proceed without

formal legal training. Further, she explained that the trial court would not help him

with the rules of evidence, courtroom procedure, or any of the “chores” that a

trained lawyer would normally do.2 She also explained that the court could, but

did not have to, appoint a standby lawyer, and that the court would not grant Ryle

any additional time to prepare for trial. During the colloquy, Ryle reviewed and

signed a waiver of counsel form.       The Commissioner then granted counsel’s

motion to withdraw and authorized Ryle to proceed pro se.

       (4)    On December 22, 2014, Ryle was reindicted. At his arraignment, the

Commissioner immediately asked if she could “talk [Ryle] into counsel.”3 Ryle

again declined. The Commissioner asked if Ryle still wanted to represent himself,

he replied “absolutely.” Later, she asked, “Are you sure you don’t want counsel?”

Ryle replied, “No. We settled that on October 27th, 2014, in front of you. I’m

okay.”4 Ryle signed another waiver of counsel form during the arraignment.

       (5)    Ryle represented himself at trial without standby counsel.         On

February 11, 2015, a Superior Court jury convicted him of possession of a firearm

by a person prohibited, possession of ammunition by a person prohibited, and

carrying a concealed deadly weapon. The State then moved to sentence Ryle as an

2
  App. to Opening Br. at 37.
3
  Id. at 48.
4
  Id. at 55.
                                         3
habitual offender. Ryle asked for a new trial, alleging that the Superior Court

should have appointed him standby counsel. He also asked for assistance of

counsel at sentencing. The Superior Court denied his motion for a new trial, and

appointed Ryle’s original attorney to serve as counsel during sentencing. On

October 8, 2015, the Superior Court granted the State’s motion to declare Ryle an

habitual offender and sentenced him to a total of twenty three years of level V

incarceration, followed by decreasing levels of supervision. This appeal followed.

          (6)       Ryle argues that the Superior Court Commissioner did not have

jurisdiction to hear his request to waive his right to counsel and represent himself.

According to Ryle, the Superior Court Commissioner’s authority derives from 10

Del. C. § 512 (Jurisdiction and powers of Commissioners of the Superior Court);

Superior Court Criminal Rule 62 (Commissioners); and Administrative Directive

2007-5 (Commissioners). Ryle claims that none of these sources of jurisdiction

specifically authorize the Commissioner to hear Ryle’s request to discharge

counsel and represent himself. Instead, he argues that the authority appears to be

reserved to the Office Judge, who, under the Superior Court Criminal Case

Management Plan for New Castle County, addresses “[r]eview of pro se

applications where the applicant has not been sentenced.”5




5
    Id. at 21-23.
                                            4
       (7)     Because Ryle did not raise the issue with the Superior Court, we

would ordinarily apply a plain error standard of review.6 But Ryle couches his

argument as a challenge to subject matter jurisdiction, which can be raised at any

time during the proceedings. Thus, we review his challenge to the Commissioner’s

subject matter jurisdiction de novo.7

       (8)     The statute in question, 10 Del. C. § 512, covers the jurisdiction and

powers of Commissioners of the Superior Court. Only the provisions relevant to

this appeal will be discussed. First, under § 512 (a)(1), a Commissioner has “[a]ll

powers and duties conferred or imposed upon Commissioners by law or by the

Rules of Criminal and Civil Procedure for the Superior Court.” Second, with the

approval of the President Judge or her designee, the President Judge or a designee

can “designate” a Commissioner “to hear and determine any pretrial matter

pending before the Court,” and “to conduct hearings, including evidentiary

hearings, and to submit proposed findings of fact and recommendations for the

disposition” to the Superior Court judge.8               In other words, a Superior Court

Commissioner has the jurisdiction conferred by statute, the Superior Court Rules,




6
  Cassidy v. Cassidy, 689 A.2d 1182, 1184 (Del. 1997) (claims not raised in the trial court are
reviewed only in the interests of justice under Supreme Court Rule 8 and for plain error).
7
  Gunn v. McKenna, 116 A.3d 419, 420-21 (Del. 2015) (questions directed at subject matter
jurisdiction can be raised for the first time on appeal).
8
  10 Del. C. § 512(b)(1). The statute sets forth exceptions to the Commissioner’s authority,
which are not relevant here. Id. at § 512(b)(1)a.
                                                5
and by “designation” by the President Judge or her designee to preside over certain

pretrial matters.

       (9)    Ryle argues that a Superior Court judge did not “designate” the

Commissioner to hear his request to represent himself, and therefore the

Commissioner did not have jurisdiction to decide the issue. But Ryle ignores the

most obvious grant of jurisdiction by the Superior Court Criminal Rules to hear

Ryle’s request. Under Rule 62 governing Commissioners, the Commissioner has

authority to decide “[n]on case-dispositive matters” which are defined as “non

case-dispositive hearings, including non case-dispositive evidentiary hearings” and

“any pretrial or other non case-dispositive matter pending before the Court.”9

Ryle’s request to discharge his counsel and represent himself is a “non case-

dispositive matter pending before the Court” and is therefore not subject to any of

the Rule’s exceptions. Thus, the Superior Court had subject matter jurisdiction to

rule on Ryle’s request to represent himself.10

       (10) Ryle also argues that he did not knowingly and voluntarily waive his

right to counsel under the Sixth Amendment to the United States Constitution.

According to Ryle, the Commissioner did not adequately cover the risks of going


9
 Super. Ct. Crim. R. 62(a)(4).
10
  Ryle also claims that the Superior Court’s order was defective because the Commissioner did
not send a copy of the order to the Defendant as required by Rule 62(a)(4)(ii). Although notice
was not sent to Ryle, he suffered no prejudice. The court granted his request to represent
himself, meaning Ryle would not have challenged the ruling. The only conceivable prejudice
would have been to the State, who has not objected to the Commissioner’s order.
                                               6
to trial without counsel and did not touch upon all the factors set forth in Briscoe v.

State.11 He also claims that the Commissioner did not make a specific finding that

Ryle’s waiver was knowing and voluntary. We review Ryle’s claim de novo,

recognizing that the validity of the waiver “depends upon the particular facts and

circumstances surrounding that case, including the background, experience, and

conduct of the defendant.”12

       (11) In Briscoe, this Court followed the guidelines suggested by the United

States Court of Appeals for the Third Circuit in United States v. Welty13 to assist

the trial courts in determining whether a defendant’s waiver of his Sixth

Amendment right to counsel was knowing, intelligent, and voluntary.14 Although

it is preferable for the judicial officer to review each of the Briscoe factors with the

defendant, there is no requirement that they be followed in the same order using

the same language.15 Rather, the record must show that the court conducted a



11
   606 A.2d 103 (Del. 1992).
12
   Id. at 107.
13
   674 F.2d 185 (3d Cir. 1982).
14
   The Briscoe factors are:
         (1) defendant will have to conduct his defense in accordance with the rules of
         evidence and criminal procedure, rules with which he may not be familiar; (2) that
         the defendant may be hampered in presenting his best defense by his lack of
         knowledge of the law; (3) that the effectiveness of his defense may well be
         diminished by his dual role as attorney and accused; (4) the nature of the charges;
         (5) the statutory offenses included within them; (6) the range of allowable
         punishments thereunder; (7) possible defenses to the charges and circumstances in
         mitigation thereof; and (8) all other facts essential to a broad understanding of the
         whole matter. Briscoe, 606 A.2d at 108.
15
   Drummond v. State, 15 A.3d 216, 2011 WL 761522, at *2 (Del. March 3, 2011) (TABLE).
                                                7
“searching inquiry” that thoroughly advised the defendant of the risks associated

with self representation.16

       (12) Our independent review of Ryle’s colloquy with the Commissioner

leads us to conclude that Ryle’s waiver was knowing and voluntary. During the

hearing, the Commissioner explained Ryle’s charges to him and the potential

penalties he was facing. She stressed how unwise it was to proceed without formal

legal training. She told Ryle that the trial judge would not help him with the rules

of evidence or courtroom procedure, and that the court would not give Ryle extra

time to prepare for trial. During the colloquy, Ryle signed a waiver of counsel

form which recited the Briscoe factors. Further, at his reindictment arraignment,

the Commissioner again tried to persuade Ryle to invoke his right to counsel. He

repeatedly acknowledged the hazards of self representation, refused counsel, and

signed another waiver.17 Thus, Ryle knowingly and voluntarily waived counsel.

       NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                                   BY THE COURT:

                                                   /s/ Collins J. Seitz, Jr.
                                                          Justice


16
  Smith v. State, 996 A.2d 786, 790-97 (Del. 2010).
17
  Ryle also argues that the court was required to review anew the Briscoe factors with him upon
his reindictment. We explained in Stigars v. State, 674 A.2d 477, 480 (Del. 1996), however, that
the right to self-representation continues unabated through the proceedings unless revisited by
the defendant or the trial judge.
                                               8
