Submitted: November 14, 2018
Appeal from the Superior Court of the State of Delaware: Cr.
ID No. 1407012946 (N) REVERSED and REMANDED.
J. Maurer, Jr., Esquire and Elise K. Wolpert, Esquire,
(argued), Eugene J. Maurer, Jr. P.A., Wilmington, Delaware,
for Appellant, Everett Urquhart.
Adams, Esquire, Department of Justice, Georgetown, Delaware,
for Appellee, State of Delaware.
STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR,
Justices, constituting the Court en Banc.
JUSTICE, FOR THE MAJORITY:
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
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
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 day of
trial. We find that it does, and reverse Urquhart's
conviction and remand for a new trial.
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.
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
• July 28, 2014: A public defender represented Urquhart
at the preliminary hearing.
• July 31: Trial counsel sent Urquhart a letter of
representation explaining the trial process.
• August 14: A public defender, possibly trial counsel,
met with Urquhart and might have reviewed the probable cause
affidavit with hm.
• August 27: Urquhart called trial counsel and discussed
filing a motion to dismiss the indictment.
• September 2: A public defender sent Urquhart a copy of
discovery from the State.
• September 30: A public defender sent Urquhart the case
• October 20: A public defender represented Urquhart at
the first case review, when he was arraigned. After arraignment
and leading up to trial, Urquhart had the following contacts
with defense counsel:
• 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."
• 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.
• January 26, 2015: A different public defender
represented Urquhart at the final case review.
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." 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" 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."
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. Additionally, his only two-way contact
with trial counsel were calls he initiated. 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
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.The State also offered Urquhart a
five-year plea deal. Urquhart turned it down.Before jury
selection, Urquhart addressed the court, expressing his
frustration with his current situation:
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.
asked to address the court about the evidence trial counsel
showed him that morning-the video surveillance and cell phone
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
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.
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
The Court: Have you met with [trial counsel]
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
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.
The Court: Your client has not seen these
[pictures] until today?
Trial Counsel: He saw them this morning,
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.
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
The Court: But has he heard from you before
Trial Counsel: No, he has not had an
opportunity. I went from one trial into another trial into
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
Mr. Urquhart: I don't understand nothing
what's going on. I'm asking for help.
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. The Superior
Court eventually appointed new counsel to represent Urquhart
in post-conviction proceedings.
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,  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. 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 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
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. 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
Court reviews the denial of a motion for postconviction
relief for an abuse of discretion. Legal and constitutional
questions are reviewed de novo.
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. 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 ...