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Tingle v. State

Supreme Court of Delaware

May 10, 2019

JEREMAINE T. TINGLE, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: May 8, 2019

          Court Below: Superior Court of the State of Delaware Cr. ID Nos. N1702000035 N1702000526

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

          ORDER

          GARY F. TRAYNOR JUSTICE

         This 10th day of May 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:

         (1) Jermaine Tingle was convicted by a Superior Court jury in January 2018 of multiple drug and firearm offenses and eventually sentenced as a habitual offender to 20 years of unsuspended Level V incarceration. In this direct appeal, Tingle does not claim that anything untoward occurred during his trial. Instead, his appellate claims relate exclusively to the Superior Court's denial of his 11th-hour request for a continuance so that he could fire his privately retained counsel to hire another lawyer. We see no merit to Tingle's claims and therefore affirm the Superior Court's judgment.

         (2) Tingle was arrested on February 1, 2017. A few months later, a privately retained lawyer entered his appearance on Tingle's behalf.[1] Tingle's lawyer conducted discovery and filed two motions to suppress evidence, one in October 2017 and the other in December 2017. The Superior Court denied both motions.

         (3) On the morning when Tingle's trial was scheduled to begin and after the court entertained argument on and denied Tingle's second motion to suppress, the court engaged Tingle in the standard colloquy regarding his rejection of the State's final plea offer.

         (4) During the colloquy, Tingle expressed dissatisfaction with his lawyer and, in particular, his inability to give "definite answers to yes or no questions"[2]about what might occur during his trial. The Superior Court asked Tingle and his counsel whether there were any questions the court might answer that would not require the disclosure of confidential communications. Tingle's counsel responded that Tingle was asking questions "about how things will be done at trial, "[3] observing that such questions cannot be "answer[ed]. . . 100 percent in the affirmative or negative"[4] because decisions that are made during a trial depend on "what evidence and testimony . . . reveal[]."[5] The trial judge then again told Tingle that she would answer any questions he had that could be asked without revealing his trial strategy and confidential information. Tingle then asked, "[s]o you're saying there's no way I can seek new counsel?" The court replied, "[t]hat's correct. It's too late. We are ready for trial today."[6]

         (5) After the Superior Court told Tingle that the trial would not be continued, Tingle asked the court if he could express an objection. It was not clear whether Tingle was asking about his right to make objections at trial or whether he wished to object to the court's answer to his question regarding his ability to seek new counsel. The following exchange addressed the difference between these possibilities:

THE COURT: . . . [I]f you want to object to a question that the State is asking a witness, your attorney has to do that. You cannot do that. If you want to put on the record that you object to the Court's ruling that you be permitted to get new counsel, then you can do that.
[TINGLE]: Well, I would like to object to the Court's ruling and put that on. Let the record reflect that I objected to the Court's denying me to seek new counsel.[7]

         (6) On appeal, Tingle raises two issues, both grounded in our guidance in Briscoe v. State[8] regarding eve-of-trial continuance requests for the purpose of retaining substitute counsel. First, Tingle argues that the Superior Court committed reversible error when it did not continue Tingle's trial so that he could replace his privately-retained lawyer with a new one. Second, Tingle contends that the Superior Court erred by not determining whether he wished to represent himself "even after he implicitly requested to represent himself"[9] in violation of his right to self-representation under the Sixth Amendment of the United States Constitution and Article 1, Section 7 of the Delaware Constitution.[10]

         (7) "We review the denial of a continuance for a change of counsel at the start of a criminal trial for an abuse of discretion."[11] "As an issue of constitutional dimension, we review de novo the trial court's denial of [a defendant's] request to proceed pro se."[12]

         (8) In Briscoe, we held that when a defendant requests a continuance on the eve of trial to seek new counsel, the Superior Court must engage in a two-part inquiry.[13] First, "[t]he trial court must initially determine if the reasons for the defendant's request for substitute counsel constitute good cause to justify a continuance of the trial, in order to allow new counsel to be obtained."[14] Second, "[i]f the trial court determines that the defendant is not entitled to a continuance, in order to engage new counsel, the defendant must then choose between two constitutional options, either continuing with his existing counsel or proceeding to trial pro se."[15] If the defendant chooses to proceed pro se, then the Court must ensure that his waiver of his right to counsel is knowing, intelligent, and voluntary.[16]

         (9) On appeal, Tingle's claim that the Superior Court erred when it did not continue his trial is based on the court's purported failure to ascertain whether his dissatisfaction with his trial counsel constituted good cause to justify a continuance.[17] But this argument ignores our close adherence in Briscoe to United States v. Welty, [18] in which the Third Circuit Court of Appeals held:

[W]hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client's objection to counsel and should withhold a ruling until reasons are made known.[19]

Welty concluded that a defendant could establish good cause to warrant a substitution of counsel on the eve of trial by showing "a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with his attorney."[20]

         (10) In Jones v. State, [21] we addressed a claim similar to Tingle's. In Jones, the defendant stated that his reasons for seeking new counsel were his attorney's lack of preparation and apparent interest in having him accept a plea bargain instead of going to trial.[22] Because the defendant did "not identify any other pertinent information that the court should have known before deciding whether to grant his request," we concluded, citing Welty, that the Superior Court did not abuse its discretion by failing ...


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