State v. Brittingham

• Court: Superior Court of Delaware
• Decided: July 14, 2023
• Docket: 2111006802
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ) v. ) I.D. # 2111006802 ) EDWARD BRITTINGHAM, ) ) Defendant. ) )

Date Submitted: July 13, 2023 Date Decided: July 14, 2023

ORDER FOLLOWING REMAND FROM THE SUPREME COURT 1. On February 23, 2023, Defendant Edward Brittingham pled guilty to

one count of Burglary in the First Degree and one count of Aggravated Menacing.

For the burglary charge, Mr. Brittingham was sentenced to fifteen years at Level V,

suspended after five years with decreasing levels of probation to follow. For the

aggravated menacing charge, Brittingham was sentenced to one year at Level V,

suspended for six months at Level III probation. On March 17, 2023, a timely notice

of appeal was filed, pro se, with the Supreme Court of Delaware.

2. On May 5, 2023, Brittingham filed an affidavit asking to discharge his

attorney and to represent himself in his appeal, notwithstanding his constitutional

and statutory right to counsel. Brittingham requested that his case be remanded to

the Superior Court for an evidentiary hearing so that he could demonstrate that he has made his request to proceed pro-se in the Supreme Court knowingly,

intelligently and voluntarily.

3. On May 8, 2023, the Supreme Court of Delaware remanded this case

to the Superior Court with the following instructions to hold an evidentiary hearing

to determine:

(i) Whether Brittingham has retained private counsel to represent him on

appeal. If so, the Superior Court's inquiry can end. If not, the Superior Court must

determine if Brittingham is an indigent person.

(ii) If Brittingham is indigent, the Superior Court must determine whether

he understands his right to court-appointed counsel to assist him on appeal by

an inquiry into his educational background and his familiarity, if any, with the

criminal justice system, including the trial process. If Brittingham is indigent,

he should understand that he must either accept representation on appeal by

his present court-appointed counsel or proceed pro se.

(iii) If Brittingham elects to proceed pro-se, an inquiry should be made into

his decision to waive his right to retain private counsel, or if he is indigent,

his decision to waive the assistance of his court-appointed trial counsel,

including his explanation for such a decision. This should include the

following inquiries:

2 (a) Whether Brittingham has consulted with any person, including any

other attorney, in the making of his decision to waive his right to

counsel. Brittingham may, but he is not required to, identify such

persons.

(b) Whether Brittingham understands that notwithstanding his lack of legal

training, he will be required to comply with all pertinent rules of the

Supreme Court.

(c) Whether Brittingham understands that notwithstanding his lack of legal

training, he will be required to comply with all pertinent rules of the

(d) Whether Brittingham understands that noncompliance with pertinent

rules of the Supreme Court may delay or prejudice his appeal.

(e) Whether Brittingham understands that the allowance of oral argument

is discretionary with the Supreme Court, and that the Supreme Court's

practice in criminal cases is not to grant oral argument to pro se

litigants.

(f) Whether Brittingham ay understands that if his waiver of counsel is

accepted, he will not thereafter be permitted to interrupt or delay the

appellate process to secure the assistance of court-appointed counsel

simply because he has changed his position.

3 (g) The Superior Court should make such further inquiries as deemed

necessary or desirable in order to formulate a conclusion as to whether

Brittingham’s decision to proceed pro se is knowing and voluntary.

4. On July 13, 2023, this Court held an in-person hearing as was ordered

by the Supreme Court. Present were the Defendant, Timothy J. Weiler (Office of

Defense Services) and Deputy Attorney General Dominick Carrera.

5. Based on the entire record, including the testimony taken at the July 13,

2023 hearing, this Court’s review of the various filings made by Brittingham himself

(as opposed to filings made by counsel) to this Court and the Delaware Supreme

Court, this Court makes the following findings of fact.

(a) Timothy J. Weiler was appointed to represent Brittingham on appeal.

Defendant wants to discharge Mr. Weiler and proceed pro se.

Defendant does not want to be represented by court appointed counsel.

(b) Brittingham has no assets and cannot afford counsel.

(c) Brittingham is indigent. Brittingham understands that he must either

accept representation on appeal by a court-appointed counsel or

proceed pro se.

(d) Brittingham understands that he has the right to court-appointed

counsel to assist him on appeal. Brittingham has a high school degree

and an associates degree in criminal justice. He also has paralegal

4 training from Blackstone University. Brittingham also represented that

he has access to LexisNexis and the law library at Howard R. Young

Correctional Institution for legal research.

(e) Brittingham wants to waive his right to any court appointed counsel.

His reason for not wanting counsel is that he believes that he can

adequately represent himself on appeal without the assistance of

counsel.

(f) Brittingham has not consulted with another person about waiving his

right to counsel.

(g) Brittingham understands that the appellate process involves the

application of rules of procedure that might be difficult for him to

understand.

(h) Brittingham understands that even though he has no formal legal

training (other than paralegal studies) he will be required to comply

with all pertinent rules of the Supreme Court.

(i) Brittingham understands that noncompliance with pertinent rules of the

Supreme Court may delay or prejudice his appeal.

(j) Brittingham understands that oral argument in the Supreme Court is

discretionary and that it is the Supreme Court’s practice in criminal

cases not to grant oral argument to pro se litigants.

5 (k) Brittingham understands that if his waiver of counsel is accepted, he

will not thereafter be permitted to interrupt or delay the appellate

process to secure the assistance or court-appointed counsel simply

because he has changed his mind about wanting to be represented by

an attorney.

(l) No one has coerced or forced Brittingham to request that he proceed

pro-se in his appeal.

(m) No one has promised Brittingham anything as a result of his decision

to proceed pro se in his appeal.

(n) Brittingham confirmed that he had no physical or mental condition that

prevented him from understanding the Court’s questions or impacted

his ability to determine whether to proceed pro se.

(o) Brittingham fully understands the consequences of his decision to

proceed pro se in his appeal before the Supreme Court of Delaware.

(p) Prior to the hearing on July 13, Brittingham signed a “Waiver of

Counsel” form, attached hereto as Exhibit A.

(q) Brittingham’s decision to proceed pro se in the Supreme Court of

Delaware is made knowingly, intelligently and voluntarily.

6 6. This Court finds that as a matter of law that Brittingham’s decision to

proceed without the assistance of counsel in the Supreme Court of Delaware and to

proceed pro se is made knowingly, intelligently and voluntarily.

IT IS SO ORDERED.