Stacey v. State

Supreme Court of Delaware

Stacey v. State

358 A.2d 379, 1976 Del. LEXIS 417

CourtSupreme Court of Delaware

DecidedApril 26, 1976

StatusPublished

Cited by2 cases

This text of 358 A.2d 379 (Stacey v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stacey v. State, 358 A.2d 379, 1976 Del. LEXIS 417 (Del. 1976).

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Opinion

PER CURIAM.

In this appeal from sentences for felony-theft, 11 Del.C. § 841, and conspiracy in the second degree, 11 Del.C. § 512, the sole issue is whether defendan was entitled to the assistance of counsel at trial. Defendant conducted his own defense before the jury and, after convictions were returned', he was sentenced to five years in prison. 1 He docketed his own appeal and we appointed counsel for him.

The State argues that defendant was not indigent and, therefore, was not entitled to counsel at public expense. 2 We *380 agree that this is the critical issue, but a record was not made below as to indigency or non-indigency nor did the Court make an appropriate finding.

Presuming waiver of a right to counsel from a silent record is impermissible, Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hales v. State, Del.Supr., 344 A.2d 229 (1975), and, in our view, it is equally impermissible to presume non-entitlement to counsel from such a record. Defendant has the burden of establishing his right to counsel, Hales v. State supra, but before proceeding to trial on a felony charge which may result in a prison sentence, the Trial Court has a duty to make a determination as to indigency, just as it must do on a waiver issue. And that requires an appropriate record.

Since a determination as to indi-gency was not made, the case will be remanded to the Superior Court for proceedings consistent herewith and report to this Court within sixty days. If the Trial Court finds that defendant was not indigent and thus not entitled to appointed counsel, the Court must also determine whether defendant had a reasonable opportunity to retain private counsel.

Jurisdiction is reserved.

1

. A co-defendant pleaded guilty, testified against defendant and was placed on probation for two years; he was also fined $300 and ordered to pay a ten percent surcharge to the Victim Compensation Fund, 11 Del.C. § 9012.

2

. The State argues also that the right-to-counsel issue was not raised in the Superior Court and that, in any event, defendant’s remedy is through a Rule 35(a) motion for post-eonvietion relief. In our view of the case, neither argument is persuasive: when indigency is shown, the right to counsel in defending a felony charge is constitutional and any failure to provide such assistance is plain error.

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PER CURIAM.

In this appeal from sentences for felony-theft, 11 Del.C. § 841, and conspiracy in the second degree, 11 Del.C. § 512, the sole issue is whether defendan was entitled to the assistance of counsel at trial. Defendant conducted his own defense before the jury and, after convictions were returned', he was sentenced to five years in prison. 1 He docketed his own appeal and we appointed counsel for him.

The State argues that defendant was not indigent and, therefore, was not entitled to counsel at public expense. 2 We *380 agree that this is the critical issue, but a record was not made below as to indigency or non-indigency nor did the Court make an appropriate finding.

Presuming waiver of a right to counsel from a silent record is impermissible, Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hales v. State, Del.Supr., 344 A.2d 229 (1975), and, in our view, it is equally impermissible to presume non-entitlement to counsel from such a record. Defendant has the burden of establishing his right to counsel, Hales v. State supra, but before proceeding to trial on a felony charge which may result in a prison sentence, the Trial Court has a duty to make a determination as to indigency, just as it must do on a waiver issue. And that requires an appropriate record.

Since a determination as to indi-gency was not made, the case will be remanded to the Superior Court for proceedings consistent herewith and report to this Court within sixty days. If the Trial Court finds that defendant was not indigent and thus not entitled to appointed counsel, the Court must also determine whether defendant had a reasonable opportunity to retain private counsel.

Jurisdiction is reserved.

1

. A co-defendant pleaded guilty, testified against defendant and was placed on probation for two years; he was also fined $300 and ordered to pay a ten percent surcharge to the Victim Compensation Fund, 11 Del.C. § 9012.

2

. The State argues also that the right-to-counsel issue was not raised in the Superior Court and that, in any event, defendant’s remedy is through a Rule 35(a) motion for post-eonvietion relief. In our view of the case, neither argument is persuasive: when indigency is shown, the right to counsel in defending a felony charge is constitutional and any failure to provide such assistance is plain error.

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358 A.2d 379, 1976 Del. LEXIS 417, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stacey-v-state-del-1976.

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