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Urquhart v. State

Supreme Court of Delaware

January 24, 2019

EVERETT URQUHART, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: November 14, 2018

          Upon Appeal from the Superior Court of the State of Delaware: Cr. ID No. 1407012946 (N) 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.

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


         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 day of trial. We find that it does, and reverse Urquhart's conviction and remand for a new trial.


         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]
• 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:
• 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]

         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:

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.
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.
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]
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 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]


         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]


         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 ...

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