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Harden v. State

Supreme Court of Delaware

February 6, 2018

DARIUS O. HARDEN, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: January 24, 2018

         Court Below: Superior Court of the State of Delaware I.D. No. 1305019629

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste, LLC, Wilmington, Delaware, Attorney for Appellant, Darius O. Harden.

          Martin B. O'Connor, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for Appellee, State of Delaware.

          Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.

          STRINE, Chief Justice


         This petition for post-conviction relief argues that defendant Darius Harden suffered prejudice because his attorney did not represent him effectively at his sentencing hearing. Sentencing was a critical stage for Harden because he committed an awful crime of violence, and did so in front of the victim's five-year-old child. As originally charged, Harden faced potential convictions for Home Invasion, Assault Second Degree, Terroristic Threatening, Theft, Offensive Touching, and Endangering the Welfare of a Child. Eventually, he pled guilty to Assault Second Degree and Endangering the Welfare of a Child, and the State agreed to cap its sentencing recommendation to 15 years.

         This agreement was important because Harden, due to his habitual offender status, faced a potential maximum sentence of life imprisonment for the crimes to which he pled guilty. This was not Harden's first act of violence, and there were plenty of good reasons why a sentencing judge could have given Harden a longer sentence than the 15 years the State agreed to recommend. Even worse, after he committed the crime, Harden blamed the assault on the victim, claiming it was in self-defense, and also attempted to threaten the victim into recanting her story.

         Before his sentencing hearing, Harden's trial counsel from the Public Defender's Office changed jobs. Rather than seek a continuance to prepare for sentencing with Harden and develop a sound strategy, Harden's new sentencing counsel proceeded to the sentencing hearing after, at best, a fleeting discussion with Harden on the day of the hearing either in lock-up or in the courtroom itself. Sentencing counsel did not prepare Harden for allocution or make any effort to discuss with him whether there was mitigating evidence that might support a more lenient sentence. Instead, Harden's new counsel acted on the supposed strategy of seeking less than the 15 years that the State agreed not to exceed in its recommendation. That this strategy was not a strategy in the sense of involving any overarching plan to achieve the intended objective showed in counsel's brief argument that the court should give Harden three years less than the State's recommendation of 15 years, without articulating any plausible reason why that was so.[1]

         Counsel then let Harden speak. Although Harden attempted to explain that he was sorry for his gruesome crime, he started off by indicating that he had experienced a "difficult" year and had "lost a lot" as a result of his conviction.[2] After listening to Harden, the Superior Court judge sentenced him to 18 years at Level V supervision: three years more than the State sought. In that decision, the judge specifically cited to Harden's allocution and his focus on himself, rather than on the effect of his crime on his victims.

          Harden did not appeal his conviction. After his pro se motion for a sentence reduction was denied, Harden brought a Rule 61 petition alleging that his counsel's performance in the sentencing phase was ineffective and prejudiced him.[3] In addressing Harden's petition, the Superior Court assumed that Harden's counsel had performed unreasonably under Strickland, but held that there was no prejudice because the record supporting a sentence of 18 years was so strong.

         We agree with the proposition that the objective facts would support a sentence of 18 years for Harden as a proper exercise of judicial discretion. But that does not answer the inquiry under Strickland. The question under Strickland is whether there is a reasonable probability that the outcome at sentencing would have been different if counsel had acted with reasonable diligence and skill. In a case where the whole point of the defense is to use a plea to get the best sentence, it is critical that counsel undertake reasonable efforts to prepare for sentencing, consider whether there is mitigating evidence (and if so, develop it), and make a rational determination about how to approach the sentencing hearing. In this case, for example, it was important to decide whether to argue against the 15 years that the State agreed to recommend, recognizing the hazards of that approach, or to argue that Harden was sorry, recognized that what he did was terribly wrong, and accepted the State's recommendation and simply would ask the court to enter a sentence at that level. Instead, without any reasonable investigation or basis to do so, counsel argued that the court should give three years less than the State recommended, and then had Harden give an unprepared allocution statement.

         Even more than preparing a witness to testify-a process that also helps determine whether a witness should testify, if not testifying is an option-preparing a defendant who has pled guilty for allocution is a duty of fundamental importance. The impression a defendant makes on a sentencing judge is critical, especially in a case where the crime is serious and the defendant tried to interfere with the victim's testimony earlier in the proceedings. All witnesses face nerves, even experienced corporate executives. So too do criminal defendants. The right to representation includes having a lawyer who makes a reasonable effort to prepare you for allocution, decides if you can do so effectively, and helps you put your best foot forward if you decide you wish to speak. Harden got no help of that kind, and his awkward, spontaneous presentation-despite including statements of contrition- started with references to the effect of the crime on himself. Harden's self-centered commentary was specifically referenced in the judge's sentencing decision as the "most troubling aspect" of the case, and was an indicator of at least one of the four aggravating factors cited in the sentencing order: lack of remorse.[4]

         Given the objective reality that Harden's unprepared allocution aggravated his sentence and the undisputed fact that counsel developed no rational strategy for arguing for a shorter sentence than the State sought, there is a reasonable probability that had counsel acted reasonably, Harden could have received a sentence in accord with the State's recommendation of 15 years, rather than the 18 years he got. In so determining, we do not fault the trial judge in any way. Rather, we only acknowledge the importance of the sentencing hearing in making difficult sentencing decisions in cases like these and the reality that how a defendant presents himself is a rational factor in determining the ultimate sentence. When a defendant's counsel fails to prepare himself or his client, and the sentencing decision itself reflects the negative effects of that failure, prejudice under Strickland exists. For these reasons, we reverse and remand for resentencing before a different judge.


         To understand the key questions in this case, it is critical to understand the seriousness of Harden's crime and the other factors aggravating toward harsh punishment for it. Harden assaulted his girlfriend, Ms. Ellison, kicking and punching her repeatedly, and eventually waking up her five-year-old son, who "came downstairs to see his mother being kicked and punched in the face numerous times while she lay on the ground."[5] "After the beating ceased, [Harden] ripped [Ms. Ellison's] phone and cash from her breast pocket, " and "threatened her not to call the police or he would kill her."[6] As a result of the assault, Ms. Ellison received "injuries to her face, stomach, and ribs; including a nasal fracture and two [lost] teeth."[7]

         Days later, Harden visited a hospital under an alias to seek treatment for "an infection and wound on his right hand."[8] Harden explained the injury as resulting from him closing his car door on his hand, but medical staff did not believe him- "presumably because of the human teeth marks visible on his hand-and contacted police."[9] When the police arrived, Harden changed his story, stating instead that Ms. Ellison bit his right hand "like a puppy" in order to prevent him from leaving the house the night of the assault.[10] In turn, "he struck her three or four times in the face-as if he was acting in self-defense."[11]

         Harden was indicted on charges of Home Invasion, Assault Second Degree, Terroristic Threatening, Theft, Offensive Touching, and Endangering the Welfare of a Child on July 8, 2013. While these charges were pending, Harden tried to convince Ms. Ellison to lie about that evening's events in an effort to "minimize" Harden's assault.[12] "As a result, [Harden] was indicted for charges of Tampering with a Witness and Act of Intimidation."[13]

         Harden's case went to a jury trial on February 18, 2014.[14] But, because of a prejudicial comment made during Ms. Ellison's testimony, that trial was declared a mistrial.[15] "After the aborted trial and before [Harden] was retried, [Harden] contacted [Ms. Ellison] to again attempt to influence her testimony regarding the incident. This correspondence was handed over to the State and Defense counsel."[16]

         On March 10, 2014, Harden pled guilty to Assault Second Degree and Endangering the Welfare of a Child. "As part of the negotiations to reach [the plea] agreement, the State [sought] to declare [Harden] a habitual offender before sentencing, " and its request was granted.[17] In return, "the State agreed to cap its recommendation for Level V supervision at 15 years."[18] Because of his status as a habitual offender, Harden faced a minimum sentence of eight years and a maximum sentence of life imprisonment.


         On May 16, 2014-a little over two months after Harden's guilty plea was entered-Harden's trial counsel, who was a Public Defender, took a new job and "ceased active representation of clients."[19] By May 28th, new sentencing counsel had been assigned to the case by the Public Defender's Office, but the prosecutor had still "not been informed of [who would] be handling the sentencing."[20]

         Harden's sentencing counsel's first affidavit, filed in response to Harden's original, pro se petition for post-conviction relief, states in a single paragraph that he discussed with Harden his "intent to adopt prior counsel's position and argue for the sentencing cap" before the sentencing hearing and that Harden "affirmatively acknowledged his acceptance of [sentencing counsel's] representation and litigation goal to argue for the sentencing cap outlined in the plea agreement."[21]

         Harden's amended petition for post-conviction relief, which was filed after he requested and received Rule 61 counsel, asked sentencing counsel specific questions. Harden's sentencing counsel's supplemental affidavit responding to those questions includes the original paragraph from his first affidavit, suggesting that his intent was to accept the State's recommendation, but adds three words to the description of his litigation goal, stating that Harden acknowledged his litigation goal to argue "for no more than" the sentencing cap.[22] And counsel's supplemental affidavit also states that his strategy at Harden's sentencing hearing was to "request that the Court consider less (12 years Level V) contrary to the sentencing cap [of 15 years]."[23] That is, contrary to his first affidavit, which suggests that counsel was going to argue for the 15 years the State accepted as a cap on its recommendation, counsel's second affidavit suggests that he was going to seek 20% less than the agreed upon cap.

         Counsel's supplemental affidavit provides additional details about his representation, stating that he received the case file "at best 2-3 days" before Harden's sentencing hearing took place on May 30th.[24] Counsel's affidavit also states that he met with Harden for the first time for 15 to 20 minutes in "lock-up" before the sentencing hearing began.[25] But the sentencing hearing transcript suggests a slightly different reality, which is that sentencing counsel spoke to Harden for the first time right before Harden's sentencing hearing started, when counsel requested and received permission from the court to speak with Harden.[26]

         During Harden's sentencing hearing, the State spoke first, and advocated for a 15-year sentence, in accordance with its plea agreement with Harden. The State discussed Harden's lack of remorse in its presentation:

[Harden] refuses to accept responsibility for his actions. He blames the victim. He says that she provoked him. He says that she attacked him first, which is not consistent with the physical evidence in the case nor consistent with the version of the facts given to me by either the State's witnesses or Ms. Ellison. I'm not saying there wasn't an argument. We don't know, we were not there, but certainly to say that he was [not] the physical instigator of this is very specious.[27]

         Harden's counsel then made his presentation and did not stick to asking the court to accept the sentencing cap agreed to by the State. Instead, counsel sought to have Harden receive less than the cap, and suggested that "12 years, give or take, as opposed to 15 is a good starting point." [28] This was a 20% reduction from the State's agreed recommendation. In making this argument, counsel discussed Harden's choice to plead and cooperation on unrelated matters as mitigating his criminal history and the violent nature of the assault:

Thankfully, with clearly a history of bad decision making, wrong choices, perhaps finally [Harden] ma[d]e a correct choice in pleading . . . . I think Mr. Harden understands that you simply cannot hit someone hard enough to knock their teeth out and cause injury. That is what happened in this case. . . .
[H]e is eight years minimum right out of the gate, which is a significant punishment. . . . For my part, I can only bring a few points to the Court's attention, perhaps something slightly less than [the State's recommendation of 15 years] would be appropriate, because at the end of the day even Mr. Harden understands he has to get a significant punishment off of what happened here. . . . He made a good [choice] by pleading. This is not a defensible case. He also made a good choice by cooperating with the State in collateral matters. The difficulty there is it has not come to fruition yet . . . . So it is premature to say he should get the benefit right now of that cooperation . . . .
I think it is one of few positive[s] that he cooperated with the State, as he should. It is a good choice. Good choices do not outweigh bad choices but it is a start.[29]

         After Harden's counsel concluded his presentation, Harden spoke and said this during his allocution:

[B]een a year for me right here difficult, lost a lot this year, not just my freedom, also Ms. Ellison, difficult, man. I can't explain how I feel right now, crazy, like, modify life right here. I can sit here and sugar coat what happened that night, I can't at the end of the day, made a decision I shouldn't have did, shouldn't have put my hand on her. Regardless of what happened, I should have been man enough to walk away. At the end of the day is all I can say [is] I apologize. I mean, I know I am not allowed to speak to her. I know she is back there listening. At the end of the day all I can say is sorry. I'm not holding any kind of grudges, over and done with. Still love her. So, you know, supposed to get married [and] all type of stuff. Here I am.[30]

         The sentencing judge then issued her decision, emphasizing Harden's lack of remorse:

I think to add insult to injury, my understanding [is] that you actually turned up at a medical center in Pennsylvania to see if you could press charges against her for biting you. I recognize you do not deny hitting her, but to claim even during your interview, nobody ever asked her what provoked me. She attacked me first. What was I supposed to do?
I was protecting myself. Pictures don't show that. Medical evidence certainly does not show that. . . . Obviously and lack of remorse, to the extent you had any contact with this victim, I do not blame her, it was, again, you trying to control her, and try[ing] to play the system in order to try to escape the punishment.[31]

         The sentencing judge also discussed Harden's criminal history at length:

Factors that I am also considering in this is your prior history of violence. It is extremely concerning to have seven felony convictions that include Rape Fourth, six convictions for failing to register as a sex offender, 19 violations of probation. 2003, my understanding [is] you were convicted of carrying a concealed deadly weapon, for threatening, being one of a group who threatened and robbed two victims at gunpoint.
2004, convicted for forcibly raping a 13-year-old girl. You have a history of domestic violence-related charges, and convictions including a threat in 2006, to shoot an ex-girlfriend, and arrests and other domestic-related charges in 2009, 2010, and 2011. . . .
Looks like your criminal history began at age 11 with other sexual[ly] violent crimes, at least an adjudication. At that age, I see also [a July 2012] charge [for] strangulation, unlawful imprisonment second degree against a pregnant woman.[32]

         But the sentencing judge noted that Harden's allocution was the "most ...

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