IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) ID. Nos. 1705002474, ) 1705004722 ROBERT P. CAULK, ) Defendant. )
Submitted: March 5, 2021 Decided: June 29, 2021
ORDER DENYING POSTCONVICTION RELIEF AND GRANTING COUNSEL’S MOTION TO WITHDRAW
Upon consideration of Defendant Robert P. Caulk’s Motions for
Postconviction Relief (D.I. 52, 67)1, the State’s response thereto (D.I. 78), his
postconviction counsel’s Motion to Withdraw (D.I. 66), the affidavits of both trial
and appellate counsel (D.I. 73, 75), and the record in this case, it appears to the Court
that:
I. FACTUAL AND PROCEDURAL BACKGROUND
(1) On April 19, 2017, Robert Caulk entered a 7-Eleven located at 530
Greenhill Avenue in Wilmington, brought an item to the counter and handed over a
card to pay for it. When the card didn’t work, Mr. Caulk stepped aside to allow the
clerk to serve another customer. When that customer left, Mr. Caulk pulled out a
1 To avoid confusion, unless otherwise noted, the Court will reference only the docket entries from Case ID No. 1705002474. -1- knife and told the clerk to give him the money from the register. The clerk handed
over the store’s money.2
(2) On May 4, 2017, Mr. Caulk entered the same 7-Eleven. There, he
approached the same clerk—this time from behind—pressed a knife against his
back, and again demanded cash from the register.3
(3) Wilmington Police reviewed the video footage of the two robberies and
developed Mr. Caulk as the primary suspect. Via a photo lineup, the clerk identified
Mr. Caulk as the person who robbed the store on April 19, and May 4, 2017. A
warrant was then issued for Mr. Caulk’s arrest.4
(4) On May 8, 2017, Mr. Caulk, again, robbed the same clerk at the same
7-Eleven, this time taking cash, cigarettes, and lottery tickets.5
(5) Not long after this third robbery, Wilmington Police spotted Mr. Caulk
wearing the same clothing as they had just seen in the 7-Eleven surveillance video.
Wilmington Police arrested Mr. Caulk and found a screwdriver, money, a cell phone,
and cigarettes on his person.6
2 Caulk v. State, 2019 WL 1299962, at *1 (Del. Mar. 19, 2019). 3 Id. 4 Id. 5 Id. 6 Id.
-2- (6) Wilmington Police then obtained search warrants for Mr. Caulk’s home
and cellphone. At Mr. Caulk’s home, police found a blue, hooded sweatshirt
matching the robber’s as seen in the surveillance footage of the April 19th and May
4th robberies. The analysis of cell tower data for Mr. Caulk’s phone revealed that it
was in the area of the 7-Eleven around the time of the May 4th and May 8th
robberies.7
(7) A Superior Court grand jury indicted Mr. Caulk on six counts of
Robbery First Degree, five counts of Possession of a Deadly Weapon During the
Commission of a Felony (“PDWDCF”), and one count of Aggravated Menacing.8
Within a week of indictment, Ralph D. Wilkinson, IV, Esquire, was appointed to
represent Mr. Caulk and filed pleas of not guilty on his behalf.9
(8) In November 2017, the State extended a plea offer to one count of
first-degree robbery, one count of second-degree robbery, and one count of
third-degree assault with a recommendation of the minimum 25-year Level V term
required with the application of the Habitual Criminal Act (11 Del. C. § 4214) to the
7 Id. at *2. 8 Indictment, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. July 10, 2017) (D.I. 2). 9 Arraignment Waiver Form, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. July 25, 2017) (D.I. 3).
-3- first-degree robbery count.10 Mr. Caulk rejected the plea offer.11
(9) On December 20, 2017, the Court held a scheduling conference at
which Mr. Wilkinson advised that Mr. Caulk wished to forego a jury trial and
proceed with a bench trial.12 The next week, the Court held a hearing to confirm
Mr. Caulk’s plea rejection and accept his jury trial waiver. After a thorough colloquy
with him, the Court determined that Mr. Caulk understood the details of the plea
offer he had rejected and that his jury trial waiver was knowing and voluntary.13
(10) The following week the Court conducted a two-day bench trial. Before
testimony commenced, the State entered a nolle prosequi on three of the robbery
counts and one count of PDWDCF.14
(11) During its case-in-chief, the State presented testimony of: (i) Kashmir
Singh, the 7-Eleven clerk involved in all three robberies; (ii) Jennifer Johnstone, a
witness to the May 8th robbery; (iii) Wilmington Police Department (WPD) Officer
Diana Agosto, who responded to and investigated the April 19th robbery; (iv) WPD
Sergeant Michael Gifford, the May 8th arresting officer; (v) WPD Officer Shauntae
10 Case Review Tr., Nov. 27, 2017, at 4 (D.I. 81). 11 Id. at 4, 7-13. 12 Office Conference Tr., Dec. 20, 2017, at 2 (D.I. 60). 13 Jury Trial Waiver Colloquy Tr., Dec. 27, 2017, at 2-17 (D.I. 80). 14 Trial Tr., Jan. 3, 2018, at 4 (D.I. 45).
-4- Hunt, who responded to and investigated the May 4th robbery; (vi) WPD Sergeant
Steven Parrott, who responded to and investigated the May 8th robbery; (vii) WPD
Officer Thomas Lynch, who responded to and investigated the May 8th robbery;
(viii) Corporal William Gearhart of the WPD Forensic Services Unit, who testified
that certain prints lifted from the scene of the robbery did not match Mr. Caulk;
(ix) WPD Detective Joran Merced, who responded to and investigated the April 19th
and May 4th robberies; and (x) Brian Daly, a Department of Justice investigator,
who analyzed Mr. Caulk’s cell phone data.15 The State also presented the
surveillance videos from all three robberies.16 Mr. Caulk did not testify during the
trial and no defense witnesses were called.17
(12) When the State’s case concluded, Mr. Wilkinson moved for partial
judgment of acquittal on the May 8th robbery count arguing that as, neither
Mr. Singh nor Ms. Johnstone testified to actually seeing a weapon during the
commission of the crime, the State had not proven that aggravating element required
for a verdict of first-degree robbery.18 The Court denied the motion.19
15 Id. at 10, 34, 41, 50, 69, 78, 87, 98, 122, 141. 16 Caulk, 2019 WL 1299962, at *2. 17 Trial Tr., Jan. 5, 2018, at 16-18 (D.I. 46). 18 Id. at 2-5. 19 Id. at 5.
-5- (13) The Court dismissed Mr. Caulk’s aggravated menacing charge and one
count of PDWDCF as they merged with other counts.20 The Court then rendered its
verdict, finding Mr. Caulk guilty of one count of Robbery First Degree and one count
of PDWDCF for the April 19th incident.21 The Court also found Mr. Caulk guilty
of one count of Robbery First Degree for each of the May 4th and May 8th robberies.
But the Court acquitted Mr. Caulk of each PDWDCF counts tied to those two later
incidents.22 The Court then ordered a pre-sentence investigation and deferred
sentencing until its completion.23
(14) Prior to sentencing, the State moved to declare and sentence Mr. Caulk
as a habitual criminal offender.24 The Court held a hearing on the State’s motion
where Mr. Caulk argued that, while his two prior violent felony convictions did
occur, he did not have an opportunity for rehabilitation between those convictions.
Thus, argued Mr. Caulk, that required element of the habitual offender statute—as
he defined it—could not be satisfied.25 In granting the State’s motion, the Court
20 Id. at 8-9. 21 Verdict Tr., Jan. 8, 2018, at 11 (D.I. 42). 22 Id. at 11-12. 23 Id. at 13. 24 Mots. to Dec. Def. Habitual Offender, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Mar. 22, 2018, June 26, 2018) (D.I. 31, 34). 25 Sentencing Tr., July 16, 2018, at 11-12 (D.I. 61).
-6- reviewed Delaware case law on the rehabilitation issue and determined that all that
was required for predicate felonies to count in the habitual criminal sentencing
calculation is a mere lapse of time between the sentencing for one crime and the
commission of the next—that is, there can be no overlap.26
(15) The Court granted the State’s motion as to the May 4th and May 8th
robbery charges27 and sentenced Mr. Caulk: (i) for the first count of first-degree
robbery (IN17-05-0760)—25 years at Level V to be served under the provisions of
11 Del. C. § 4214; (ii) for the second count of first-degree robbery
(IN17-05-1322)—25 years at Level V to be served under the provisions of 11 Del.
C. § 4214; (iii) for the third count of first-degree robbery (IN17-05-0759)—15 years
at Level V, suspended after three years for two and one-half years months of
decreasing levels of supervision; and (iv) for PDWDCF (IN17-05-1324)—two years
at Level V.28
26 Id. at 12-15. 27 Order Dec. Def. Habitual Offender, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. July 16, 2018) (D.I. 37). 28 Sentencing Order, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. July 16, 2018) (D.I. 38).
-7- (16) Mr. Caulk immediately filed a direct appeal in the Delaware Supreme
Court. His convictions and sentences were affirmed.29
(17) Mr. Caulk then moved, pro se, to modify his sentence. He asks the
Court to order his several sentences to run concurrently.30
II. MR. CAULK’S MOTIONS FOR POSTCONVICTION RELIEF
(18) Shortly thereafter, Mr. Caulk filed, pro se, the present Motion for
Postconviction Relief31 and a Motion for Appointment of Counsel.32 The Court
granted Mr. Caulk’s Motion for Appointment of Counsel33 and Edward F. Eaton,
Esquire, was appointed to represent Mr. Caulk in his postconviction proceeding.
Mr. Eaton has filed a Motion to Withdraw as Counsel.34 In his motion, Mr. Eaton
29 Caulk, 2019 WL 1299962, at *1. Mr. Caulk was appointed appellate counsel, Santino Ceccotti, Esquire, who filed a non-merit brief and motion to withdraw under Supreme Court Rule 26(c). Id. at *2. 30 Mot. for Sentence Mod., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Aug. 26, 2019) (D.I. 49). The Court stayed the consideration of this motion until the resolution of Mr. Caulk’s postconviction proceedings. Letter Order, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Oct. 28, 2019) (D.I. 57). 31 Def.’s Mot. for Postconviction Relief, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Oct. 18, 2019) (D.I. 52). 32 Def.’s Mot. for Appt. of Counsel, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Oct. 18, 2019) (D.I. 53). 33 Order Granting Def.’s Mot. for Appt. of Counsel, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Oct. 28, 2019) (D.I. 56). 34 PCR Counsel’s Mot. to Withdraw, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. June 16, 2020) (D.I. 66).
-8- reports that, after careful review of Mr. Caulk’s case, Mr. Caulk’s claims are so
lacking in merit that he cannot ethically advocate for them; and further, that
he is not aware of any other substantial grounds for relief.35 Mr. Caulk filed a
Supplemental Motion for Postconviction Relief, setting forth new claims and
requesting that the Court deny Mr. Eaton’s motion to withdraw.36 Mr. Caulk’s trial
and appellate counsel have each filed an affidavit addressing Mr. Caulk’s
postconviction claims.37 And the State has filed its response opposing Mr. Caulk’s
postconviction motion.38
(19) In his postconviction motion and its supplements, Mr. Caulk raises
seven claims of ineffective assistance of counsel—six against trial counsel and one
against appellate counsel—and two standalone claims of Court error. Specifically,
Mr. Caulk alleges his trial counsel, Mr. Wilkinson, was ineffective as: (i) he failed
to investigate Mr. Caulk’s history of mental health issues and substance abuse, and
present those findings at the sentencing hearing; (ii) he failed to present evidence at
35 Id. at 1, 28. 36 Def.’s Rule 61 Suppl., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. June 2, 2020) (D.I. 67). 37 Appellate Counsel Aff., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Oct. 30, 2020) (D.I. 73); Trial Counsel Aff., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Nov. 30, 2020) (D.I. 75). 38 State’s Opp’n, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Jan. 19, 2021) (D.I. 78).
-9- trial based upon conversations with Mr. Caulk, knowing that he suffered from mental
health and substance abuse issues; (iii) he permitted Mr. Caulk to waive his right to
a jury trial and proceed before a judge who was fully aware of his history; 39 (iv) he
failed to conduct a pretrial investigation and adequately prepare for trial; (v) he failed
to cross-examine the State’s witnesses using the questions provided by Mr. Caulk;
and (vi) he failed to file a motion to suppress as Mr. Caulk requested.40 Further,
Mr. Caulk alleges his appellate counsel, Mr. Ceccotti, was ineffective for moving to
withdraw and filing a Rule 26(c) non-merit brief. This, Mr. Caulk says, forced him
to proceed pro se, placing him in an impossible position due to his mental health
issues, learning disabilities, and lack of legal training.41 Lastly, Mr. Caulk contends
that the Court should have: (i) conducted a hearing to investigate the conflicts
between himself and trial counsel; and (ii) in light of these conflicts, continued the
trial to allow for more time for the defense to prepare.42
(20) In accord with this Court’s Criminal Rule 61(e)(1), Mr. Caulk was
appointed postconviction counsel.43 Mr. Eaton has now, pursuant to Rule 61(e)(7),
39 Def.’s Mot. for Postconviction Relief at 3. 40 Def.’s Rule 61 Suppl. at 1-4. 41 Def.’s Mot. for Postconviction Relief at 3. 42 Def.’s Rule 61 Suppl. at 1-4. 43 Order Granting Def.’s Mot. for Appt. of Counsel (D.I. 53).
-10- filed a brief and motion to withdraw.44 Mr. Eaton avers that, based upon a careful
and complete examination of the record, there are no meritorious grounds for relief.45
(21) Under this Court’s Criminal Rule 61(e)(7):
If counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.46
(22) Mr. Eaton has conducted a careful review of Mr. Caulk’s case and has
determined that Mr. Caulk’s claims are so lacking in merit that he cannot ethically
advocate them. Mr. Eaton explains further that he is unaware of any other substantial
ground for relief.47 Mr. Eaton provided Mr. Caulk with a copy of his withdrawal
motion and advised Mr. Caulk of his ability under Rule 61(e)(7) to file a response
thereto.48
44 PCR Counsel’s Mot. to Withdraw (D.I. 66). 45 Id. at 1, 28. 46 Super. Ct. Crim. R. 61(e)(7). 47 PCR Counsel’s Mot. to Withdraw at 1, 28. 48 Id. at 28.
-11- III. RULE 61’S PROCEDURAL REQUIREMENTS
(23) In order to evaluate Mr. Caulk’s postconviction claims, and to
determine whether his latest counsel’s motion to withdraw should be granted, the
Court should be satisfied that Mr. Eaton conducted a truly conscientious examination
of the record and the law for claims that could arguably support Mr. Caulk’s Rule
61 motion. The Court should also conduct its own review of the record to determine
whether Mr. Caulk’s Rule 61 motion is devoid of any, at least, arguable
postconviction claims.49
(24) Delaware courts must consider Criminal Rule 61’s procedural
requirements before addressing any substantive issues.50 The procedural bars of
Rule 61 are “timeliness, repetitiveness, procedural default, and former
adjudication.”51 Here, Mr. Caulk’s motion was filed less than a year after his
judgment of conviction became final.52 So it’s timely. This is Mr. Caulk’s first Rule
61 application. So it’s not repetitive.
49 State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Ct. Dec. 7, 2017). 50 Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct. Sept. 10, 2002). 51 State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. Jun. 7, 2017). 52 Def.’s Mot. for Postconviction Relief (D.I. 52); Supreme Court Mandate, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Apr. 4, 2019) (D.I. 48).
-12- (25) Rule 61(i)(3) states, too, that “[a]ny ground for relief that was not
asserted in the proceedings leading to the judgment of conviction, as required by the
rules of this court, is thereafter barred, unless the movant shows . . . [c]ause for relief
from the procedural default and . . . [p]rejudice from violation of the movant’s
rights.”53 Though this bar is inapplicable to allegations of ineffective assistance of
counsel that, in all but the rarest of circumstances, couldn’t have been raised on
direct appeal.54 So Mr. Caulk’s ineffective assistance of counsel claims aren’t
procedurally barred here. And the Court will address them on their merits.
(26) But Mr. Caulk’s standalone claims of trial error—alleging that the
Court should have conducted a hearing to investigate the conflicts between himself
and trial counsel and continued the trial to allow for more time for the defense to
prepare—are procedurally barred by Rule 61(i)(3) because Mr. Caulk never
requested such a hearing or continuance. Nor did he raise these issues during his
direct appeal.
(27) Mr. Caulk does contend these claimed errors should have been raised
on direct appeal, but appellate counsel ignored them and instead filed a non-merit
brief and motion to withdraw under Supreme Court Rule 26(c).55 So the Court will
53 Super. Ct. Crim. R. 61(i)(3). 54 State v. Coverdale, 2018 WL 259775, at *2 (Del. Super. Ct. Jan. 2, 2018). 55 Def.’s Rule 61 Suppl. at 4.
-13- treat the failure-to-address-the-conflict and failure-to-continue-the-trial issues as
ineffective assistance of counsel claims brought against Mr. Caulk’s appellate
counsel.
(28) In sum then, Mr. Caulk levels six claims of ineffective assistance of
counsel at his trial counsel and two claims at his appellate counsel.56
IV. DISCUSSION
A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS—TRIAL COUNSEL.
(29) A claim of ineffective assistance of counsel is reviewed under the
familiar two-part Strickland test.57 A claimant asserting ineffective assistance of
counsel must demonstrate that: (i) his defense counsel’s representation fell below an
objective standard of reasonableness, and (ii) there is a reasonable probability that,
but for counsel’s errors, the result of his proceedings would have been different.58
(30) For the first prong, deficient performance, the burden is on the claimant
to show that counsel’s conduct fell below an objective standard of reasonableness,
“i.e., that no reasonable lawyer would have conducted the defense as his lawyer
56 These two claims being: (1) withdrawing as counsel during the appeal; and (2) failing to raise Mr. Caulk’s two standalone complaints of trial court error during the direct appeal. 57 Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Neal v. State, 80 A.3d 935, 946 (Del. 2013). 58 Strickland, 466 U.S. at 688-94; see also Alston v. State, 2015 WL 5297709, at *3 (Del. Sept. 4, 2015).
-14- did.”59 There is a strong presumption that counsel’s representation was reasonable,60
and “[i]t is not this Court’s function to second-guess reasonable [ ] tactics” engaged
by trial counsel.61 Indeed, an attorneys strategic or tactical choices made after
thorough investigation of the relevant law and facts are virtually unchallengeable.62
(31) Too, one claiming ineffective assistance “must make specific
allegations of how defense counsel’s conduct actually prejudiced the proceedings,
rather than mere allegations of ineffectiveness.”63 This second prong requires the
claimant to show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”64
(32) An inmate must prove both deficient attorney performance and
resulting prejudice to succeed in making an ineffective assistance of counsel claim.
59 Green v. State, 238 A.3d 160, 174 (Del. 2020) (citing Burger v. Kemp, 483 U.S. 776, 791 (1987)). 60 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 61 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002). 62 Green, 238 A.3d at 174. 63 Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996)); Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003). 64 Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694).
-15- Failure in the first instance to prove either will doom his claim, and the Court need
not address the other.65
(33) There are a few situations that the United States Supreme Court has
recognized to be so egregious that an ineffectiveness claimant need not prove the
prejudice prong of the traditional Strickland test. In United States v. Cronic, the
Court set out three “circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.”66 These are:
(i) where there was complete denial of counsel at a critical stage of the proceeding;67
(ii) where “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing”;68 and, (iii) where “counsel is called upon to render assistance
under circumstances where competent counsel very likely could have not . . .”69
(34) In his fourth, fifth, and sixth claims of ineffective assistance of counsel
against Mr. Wilkinson, Mr. Caulk seeks to invoke the Cronic standard, claiming that
he was denied counsel altogether and counsel entirely failed to subject the
65 Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two-pronged test, and there is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice the defendant”); State v. Hamby, 2005 WL 914462, at *2 (Del. Super. Ct. Mar. 14, 2005). 66 United States v. Cronic, 466 U.S. 648, 658 (1984). 67 Id. at 659. 68 Id. 69 Bell v. Cone, 535 U.S. 685, 696 (2002).
-16- prosecution’s case to meaningful adversarial testing.70 But before the Court will
presume prejudice under Cronic, “there must be a complete failure of counsel.”71
And, as set out below, there was nothing even close to a “complete failure of
counsel.” No, Mr. Caulk’s contentions exhibit more of either his complete
disagreement with or complete misunderstanding of the professional decisions
Mr. Wilkinson made and the professional acts Mr. Wilkinson took—acts taken with,
at least, some favorable results—in Mr. Caulk’s defense. Thus, Mr. Caulk’s claims
will all be subject to the traditional Strickland analysis.
1. Failure to investigate and present mental health and substance abuse evidence at trial and sentencing.
(35) In his first two contentions of ineffective assistance of trial counsel,
Mr. Caulk alleges that Mr. Wilkinson failed to investigate and present evidence of
Mr. Caulk’s mental health and substance abuse history at trial and sentencing.72
This claim survives neither of the two Strickland inquiries.
(36) Mr. Wilkinson did investigate and consider how to utilize Mr. Caulk’s
mental health and substance abuse history. Specifically, Mr. Wilkinson obtained a
psycho-forensic evaluation of Mr. Caulk that included extensive psychological
70 Def.’s Rule 61 Suppl. at 1-4. 71 Jackson v. Carroll, 161 F. App’x. 190, 193, 2005 WL 3477556, at *2 (3d Cir. Dec. 20, 2005); State v. Jackson, 2008 WL 5048424, at *18 n.134 (Del. Super. Ct. Nov. 25, 2008). 72 Def.’s Mot. for Postconviction Relief at 3.
-17- reports from multiple state agencies.73 But, according to Mr. Wilkinson, nothing in
these records could be used to fashion a legal defense to the charged crimes.74 And
it was after conducting this investigation and reviewing the available mental health
reports that Mr. Wilkinson settled on the appropriate defense strategy in Mr. Caulk’s
case.75 Those decisions won’t be second-guessed now.76 Mr. Caulk has failed to
demonstrate that his trial counsel performed deficiently.
(37) Moreover, even if Mr. Caulk were able to show deficient performance
on this claim, it would still fail for his inability to show resulting prejudice. This is
for two reasons. First, at the sentencing hearing Mr. Wilkinson did present
Mr. Caulk’s mental health and substance abuse history to the Court. He argued, in
part, that based on that history Mr. Caulk had not had the opportunity for
rehabilitation required to be declared a habitual criminal offender.77 The Court
rejected that argument.78 Second, Mr. Caulk was sentenced to the minimum
73 Trial Counsel Aff. ¶ 1. 74 Id. 75 See Green, 238 A.3d at 174 (“Indeed, [i]f an attorney makes a strategic choice after thorough investigation of law and facts relevant to plausible options, that decision is virtually unchallengeable . . .” (quoting Purnell v. State, 106 A.3d 337, 342 (Del. 2014) (internal quotation marks omitted))). 76 Drummond, 2002 WL 524283, at *1. 77 Sentencing Tr., July 16, 2018, at 11-12. 78 Id. at 15-16.
-18- mandatory sentence required for each of his several offenses.79 Any further appeal
by Mr. Wilkinson to the Court’s discretion would not and could not have affected
the outcome Mr. Caulk’s sentencing—the Court had no discretion to sentence below
the statutory minimums. Because he demonstrates neither deficient performance nor
resultant prejudice, Mr. Caulk’s first and second ineffective assistance of trial
counsel claims fail.
2. Allowing Mr. Caulk to Waive Jury Trial.
(38) Mr. Caulk’s next contention of ineffective assistance of trial counsel is
a complaint that Mr. Wilkinson allowed him to waive his right to a jury trial and “be
tried before a Judge [who was] fully aware of [his] extensive history.”80 Once again,
this claim fails.
(39) Mr. Caulk has not shown that Mr. Wilkinson’s representation here was
deficient. Nor could it be in this circumstance. The ultimate authority to make
certain fundamental decisions regarding his case—which include whether to plead
guilty, waive trial by jury, testify, or appeal—lays with the criminal defendant.81
This is because the consequences of these decisions fall on the defendant alone and
79 Sentencing Order, at 3-4. Mr. Wilkinson requested that Mr. Caulk receive no more than the mandatory minimum for his charges. Sentencing Tr., July 16, 2018, at 25-26. 80 Def.’s Mot. for Postconviction Relief at 3. 81 Taylor v. State, 28 A.3d 399, 406 (Del. 2011) (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)).
-19- “are too important to be made by anyone else.”82 Thus, the decision to waive his
jury trial was Mr. Caulk’s decision alone.
(40) That said, a criminal defense attorney no doubt has a duty to advise his
client regarding the waiver of any of these core rights, including the waiver of a jury
trial.83 And Mr. Wilkinson did just that. He “spent extensive time speaking with
Mr. Caulk about his rights to a jury trial” and made one prison visit to Mr. Caulk for
the sole propose of discussing his desire to waive his right to a jury trial. 84 Mr.
Wilkinson explained to Mr. Caulk “the advantages and disadvantages of a jury trial
compared to a bench trial.”85 Even so, “Mr. Caulk was insistent on his desire to
proceed by bench trial despite the advice of counsel.”86
(41) At bottom, when complaining of his lawyer’s conduct regarding a
waiver of the right to trial by jury, “the defendant bears the burden of proving that
his counsel was unreasonable and whether counsel’s deficiency prejudiced
82 Cooke v. State, 977 A.2d 803, 842 (Del. 2009). 83 See Com. v. Mallory, 941 A.2d 686, 698 (Pa. 2008) (“Of course, lawyers have an obligation to counsel their clients in conjunction with the waiver of basic rights, including the waiver of a jury.”). 84 Trial Counsel Aff. ¶ 2. 85 Id. 86 Id.
-20- defendant's waiver of a trial by jury.”87 Thus, Mr. Caulk would—to carry his burden
on such a claim—have to demonstrate some deficiency in Mr. Wilkinson’s
discussion with him about a waiver of a jury trial and then demonstrate that
deficiency somehow tainted Mr. Caulk’s waiver to such a degree as to overcome the
record of his waiver colloquy.88
(42) The Court conducted, with Mr. Wilkinson present, an extensive
colloquy with Mr. Caulk when accepting his jury trial waiver.89 It was only after
this exchange that the Court found that Mr. Caulk knowingly and voluntarily waived
his right to trial by jury and accepted his executed waiver form.90 Any potential
shortcomings on Mr. Wilkinson’s part, were cured by the Court’s extensive waiver
colloquy.91
(43) Because Mr. Caulk fails to show that his counsel performed deficiently,
the Court need not address his claim of alleged prejudice—i.e., that he was tried by
87 State v. Taye, 2014 WL 785033, at *3 (Del. Super. Ct. Feb. 26, 2014), aff’d, 2014 WL 4657310 (Del. Sept. 18, 2014). 88 State v. Couch, 2007 WL 987403, at *2 (Del. Super. Ct. Mar. 30, 2007), aff’d, 2008 WL 390754, at *2 (Del. Feb. 14, 2008). 89 Jury Trial Waiver Colloquy Tr., Dec. 27, 2017 (D.I. 80). 90 Id. at 15. 91 State v. Hall, 2016 WL 241192, at *3 (Del. Super. Ct. Jan. 19, 2016) (“If trial counsel is deficient in explaining to a defendant their right to a jury trial and the consequences of waiving that right, trial counsel’s deficiency can be cured by the Court through a colloquy.”).
-21- a judge who would have known of his extensive criminal history.92 But this aspect
of a criminal bench trial alone is wholly insufficient to demonstrate the actual
prejudice required. For a trial judge sitting alone to make legal determinations and
“as a trier of fact, is presumed to have made his verdict only on the admissible
evidence before him and to have disregarded that which is inadmissible.” 93 That
judge also “is presumed to have the capability to attribute the proper weight to the
evidence and to disregard evidence that is [immaterial or] unreliable.”94
3. Failure to conduct a pre-trial investigation and to adequately prepare for trial.
(44) In this claim, Mr. Caulk contends that he was denied counsel all
together because Mr. Wilkinson did not visit him during the pre-trial process, did
not investigate or interview any witnesses on his behalf, and did not go over the
evidence with him.95 During trial, Mr. Caulk had a series of outbursts expressing
his dissatisfaction with Mr. Wilkinson. During one of these outbursts, Mr. Caulk
stated:
92 Hamby, 2005 WL 914462, at *2. 93 Burke v. State, 1997 WL 139813, at *2 (Del. Mar. 2, 1997) (internal quotation marks and citation omitted). 94 Truman v. Watts, 598 A.2d 713, 720 (Del. Fam. Ct. 1991). 95 Def.’s Rule 61 Suppl. at 1-3.
-22- First of all, I’ve been locked up eight months and I’m now just seeing this man. I ain’t seen him. He did not confer with me about nothing, anything. I wrote to him several times asking for a suppression hearing. He didn’t do that. And I feel as though him and the State are in cahoots.”96
(45) The credible evidence in the postconviction record belies Mr. Caulk’s
protestations. Mr. Wilkinson met with Mr. Caulk on at least ten occasions, including
numerous visits to the Howard R. Young Correctional Institution, where Mr. Caulk
was detained pre-trial.97 During their discussions, Mr. Wilkinson spent extensive
time with Mr. Caulk going over the evidence against him, his plea offer, trial
strategy, and his desire to proceed with a bench trial.98 Mr. Wilkinson also had an
investigator contact witnesses that Mr. Caulk advised him of and had those witnesses
subpoenaed for trial.99
(46) In the face of all this, Mr. Caulk fails to explain just what Mr. Wilkinson
may have missed.100 Mr. Wilkinson was well-prepared for trial and he was in regular
96 Trial Tr., Jan. 3, 2018, at 63. 97 Trial Counsel Aff. ¶ 3. 98 Id. 99 Id. 100 See State v. Adkins, 2019 WL 3202254, at *3 (Del. Super. Ct. July 16, 2019) (where postconviction movant provides no adequate explanation as to what may have been missed, his “conclusory allegations of ineffective assistance of counsel do not establish that his counsel’s representation was objectively unreasonable.”).
-23- communication with Mr. Caulk as he prepared what defense he could.101 There is
simply no demonstrable deficiency here.
(47) Lastly, Mr. Caulk fails to address the other necessary Strickland
showing—that, but for Mr. Wilkinson’s conduct, the outcome of the trial would have
been different (i.e., that Mr. Caulk would have been acquitted of the charges he was
convicted of).102 For this reason too, Mr. Caulk’s ineffectiveness claim alleging
failure to investigate and communicate fails.
4. Failure to cross-examine witnesses using the questions provided by Mr. Caulk.
(48) In his next claim, Mr. Caulk alleges that Mr. Wilkinson conducted
inadequate cross-examination of the State’s witnesses.103 Specifically, Mr. Caulk
states that he “was submitting questions to [Mr. Wilkinson] to ask and
[Mr. Wilkinson] wasn’t asking any of the questions relevant to the case.”104
Mr. Caulk contends that his Sixth Amendment right to counsel “requires more than
the mere presence of defense counsel to the day of trial to perform perfunctory
101 Trial Counsel Aff. ¶ 3; Trial Tr., Jan. 3, 2018, at 64 (The Court: “No, I don’t think Mr. Wilkinson thinks it’s funny at all. He has been prepared.”). 102 Wright, 671 A.2d at 1356 (“Mere allegations of ineffectiveness will not suffice. A defendant must make specific allegations of actual prejudice and substantiate them.”). 103 Def.’s Rule 61 Suppl. at 1, 3. 104 Id. at 1.
-24- cross-examination of state witnesses as to their prior statements during the [r]obbery,
which included their identification of Caulk prior to his arrest and in court
identification at trial.”105 Mr. Caulk contends that he recognized Mr. Wilkinson’s
shortcomings at trial and wrote questions “based off his knowledge of the case and
review of evidence and conflicts between evidence and statements” and requested
Mr. Wilkinson use those questions, but Mr. Wilkinson did not.106
(49) In order to prevail on this claim, Mr. Caulk must prove, again,
(i) deficient performance, and (ii) resulting prejudice.107 And again, Mr. Caulk fails
to do so.
(50) Mr. Caulk’s perceived failings during cross-examination led to some of
his outbursts during the trial. For instance, after Mr. Wilkinson completed his
cross-examination of State’s witness Officer Diana Agosto, Mr. Caulk complained
loudly: “This is bullshit. Come on, man. I’m telling you stuff and you ain’t saying
nothing. This is bullshit. I feel as though I’m getting railroaded. I just brought this
to your attention and you didn’t say nothing.”108
105 Id. at 3. 106 Id. 107 Strickland, 466 U.S. at 688-94. 108 Trial Tr., Jan. 3, 2018, at 48-49.
-25- (51) A criminal defense attorney counsel is given wide latitude in making
strategic trial decisions; this extends to the conduct of cross-examination.109
The questions to be asked and how a given cross-examination is conducted are
tactical decisions.110 And when challenging those decisions, the movant has the
burden of supplying precisely what information would have been obtained had
counsel conducted the cross as the complaining inmate desired and just how this
information would have changed the result of his trial.111
(52) Mr. Caulk doesn’t identify what questions Mr. Wilkinson should have
asked, which witnesses Mr. Wilkinson should have further cross-examined, what
answers those questions would have produced, or how a different line of questioning
would have produced a different result. And, again, Mr. Caulk’s contentions are
belied by the record. The trial transcript shows that Mr. Wilkinson cross-examined
all of the State’s witnesses,112 and regularly consulted Mr. Caulk before concluding
109 State v. Powell, 2016 WL 3023740, at *25 (Del. Super. Ct. May 24, 2016). 110 Outten v. State, 720 A.2d 547, 557 (Del. 1998) (“Whether to call a witness, and how to cross-examine those who are called are tactical decisions.”); see also Jean K. Gilles Phillips, and Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a Criminal Case?, 71 J. KAN. BAR ASS’N 28, 29 (2002) (citing Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977)) (“[T]he United States Supreme Court [has] held that the attorney possesses the right to decide certain strategic and tactical decisions, including what witnesses to call, whether and how to conduct cross-examination, what trial motions should be made, and what evidence should be introduced.”). 111 See Outten, 720 A.2d at 557 (quoting U.S. v. Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995)). 112 Trial Tr., Jan. 3, 2018, at 28 (cross-examination of Singh), 38 (cross-examination of Johnstone), 47 (cross-examination of Agosto), 58 (cross-examination of Gifford), 75 -26- his cross-examinations.113 The Court recognized and explained all of this to
Mr. Caulk after one of his mid-trial outbursts:
Mr. Wilkinson’s job is to analyze the evidence in this case, ask the questions he believes to be appropriate and I see him on a regular basis coming back and consulting with you before he finishes. You may believe that he needs to ask other questions . . . but Mr. Wilkinson is a professional, he’s well-experienced. He’s represented many criminal defendants. And he needs to make the strategic choices . . . as to which questions to ask and which questions to forego.114
(53) Mr. Wilkinson was not “merely present” at trial as Mr. Caulk describes
it. Rather, Mr. Wilkinson actively challenged the State’s case via examination of
the state’s witnesses and objections to the State’s evidence and questioning.115
(54) Mr. Caulk has failed to show that Mr. Wilkinson’s cross-examination
methods fell below an objective standard of reasonableness. And with this failure
alone, the Court need go no further in its Strickland examination.116
(cross-examination of Hunt), 84 (cross-examination of Parrott), 95 (cross-examination of Lynch), 112 (cross-examination of Gearhart), 138 (cross-examination of Merced), 158 (cross-examination of Daly). 113 Id. at 32 (Mr. Wilkinson asking, “Your Honor, can I have a couple of moments?” consulting Mr. Caulk and then stating, “I have no further questions.”), 40, 48, 59, 77, 98, 119, 137, 162, 165. 114 Id. at 64-65. 115 Id. at 18, 72, 129. 116 Hamby, 2005 WL 914462, at *2.
-27- 5. Failing to file motion to suppress at Caulk’s request.
(55) Mr. Caulk’s last claim of ineffective assistance of trial counsel is that
Mr. Wilkinson failed to file a motion to suppress as Mr. Caulk requested.117
But, Mr. Caulk does not identify just what evidence Mr. Wilkinson should have
sought to have suppressed. Nor does he address how any suppression motion would
have changed the outcome of his case. So, again, Mr. Caulk fails to substantiate a
claim for ineffective assistance of counsel.
(56) During his direct appeal, Mr. Caulk raised an issue with his May 8th
arrest. He claimed that his Miranda rights were violated when he was stopped,
frisked, and arrested.118 The Delaware Supreme Court rejected Mr. Caulk’s Miranda
claim finding that “[o]ther than Officer Lynch testifying that Caulk identified
himself when asked, Caulk d[id] not identify any statements he made to the police
that were admitted at trial.”119 So, there was nothing to suppress and the Court found
no plain error.
(57) Additionally, during the trial and on direct appeal, Mr. Caulk raised an
issue with the blue, hooded sweatshirt that was found at his house, claiming that it
did not match the clothing of the robber in the April 19th and May 4th surveillance
117 Def.’s Rule 61 Suppl. at 1. 118 Caulk, 2019 WL 1299962, at *2. 119 Id. at *3.
-28- videos.120 Mr. Wilkinson addressed the issue of the blue, hooded sweatshirt during
his closing argument, asking the Court to study the garment in the video and compare
it to the one admitted at trial: “[I]s that the same blue sweater that you see in the
video?”121 But as the Court noted in its query during argument, any quibble over the
blue, hooded sweatshirt was a mere aside because the surveillance videos of the
robberies showed the face of the person who committed them—Mr. Caulk.122 The
Delaware Supreme Court also found this issue of the blue, hooded sweatshirt to be
unavailing, noting that the question of “whether the hooded sweatshirt recovered at
the house was the same hooded sweatshirt as in the video went to the weight of the
evidence and not its admissibility.”123
(58) So, even if the Court assumes that Mr. Wilkinson was deficient in
failing to file a suppression motion regarding any statement or the sweatshirt, this
claim still fails under the Strickland prejudice analysis. Mr. Caulk was identified as
the robber through the surveillance footage, Mr. Singh’s identification, and his
120 Id. at *4; Trial Tr., Jan. 3, 2018, at 139-40. 121 Trial Tr., Jan. 5, 2018, at 40. 122 Id. at 40-41. 123 Caulk, 2019 WL 1299962, at *3.
-29- cell-tower data.124 Thus, it cannot be shown that there was a reasonably probability
that but for Mr. Wilkinson’s failure to suppress any other evidence, Mr. Caulk would
have been acquitted.
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS—APPELLATE COUNSEL.
(59) Any claim of ineffective assistance of counsel against appellate
counsel is analyzed under the same Strickland framework.125 To prove deficient
performance, a claimant must show that his appellate counsel “was objectively
unreasonable in failing to find arguable issues to appeal—that is, that counsel
unreasonably failed to discover nonfrivolous issues and to file a merits brief raising
them.”126 The requirement here is “to show that a reasonably competent attorney
would have found one nonfrivolous issue warranting a merits brief.”127 This does
not require appellate counsel to “raise every nonfrivolous claim, but rather select
from among them in order to maximize the likelihood of success on appeal.”128
124 Id.; see also Trial Tr., Jan. 5, 2018, at 47 (The Court: “[b]ut even if we set aside Mr. Singh’s [identification], if the Court looked at the video itself and said, I believe he has been properly identified just from the video evidence that’s the same person, can’t that be sufficient?”). 125 Neal, 80 A.3d at 946 (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)). 126 Id. (quoting Robbins, 528 U.S. at 285). 127 Id. (quoting Robbins, 528 U.S. at 288). 128 Id. (quoting Robbins, 528 U.S. at 288).
-30- (60) If the Rule 61 movant can clear this first hurdle, he must then prove
resulting prejudice.129 “That is, he must show a reasonable probability that, but for
his counsel's unreasonable failure to file a merits brief, he would have prevailed on
his appeal.”130
(61) Here, Mr. Ceccotti presented no arguments on appeal.
Instead, he filed a motion to withdraw under Supreme Court Rule 26(c) and stated
that he made a “conscientious examination of the record and the law and conclude[d]
that the appeal [was] wholly without merit.”131
(62) Mr. Caulk now says Mr. Ceccotti was ineffective because: (i) by
moving to withdraw and filing a Rule 26(c) non-merit brief, Mr. Ceccotti forced
Mr. Caulk to proceed pro se, which placed him in an impossible position due to his
mental health issues, learning disabilities, and lack of legal training; 132 and (ii) by
failing to recognize, and raise on appeal, the trial court’s errors of failing conduct a
hearing to investigate the conflicts between himself and Mr. Wilkinson and failing
to continue the trial to allow for more time for the defense to prepare his case.
129 Id. at 947. 130 Robbins, 528 U.S. at 285. 131 PCR Counsel’s Mot. to Withdraw, App. Vol. II, at A388 (Appellate Counsel’s Mot. to Withdraw) (D.I. 70); Caulk, 2019 WL 1299962, at *2. 132 Def.’s Mot. for Postconviction Relief at 3.
-31- According to Mr. Caulk, Mr. Ceccotti denied him of his Sixth Amendment right to
counsel on direct appeal.133 These claims will be addressed together.
(63) When reviewing a motion to withdraw under Rule 26(c), the Supreme
“Court must: (i) be satisfied that [appellate] counsel has made a conscientious
examination of the record and the law for arguable claims; and (ii) conduct its own
review of the record and determine whether the appeal is so totally devoid of at least
arguably appealable issues that it can be decided without an adversary
presentation.”134 On direct appeal, the Delaware Supreme Court:
. . . reviewed the record carefully and [ ] concluded that Caulk’s appeal is wholly without merit and devoid of any arguably appealable issue. [And was] also [ ] satisfied that Counsel ha[d] made a conscientious effort to examine the record and the law and ha[d] properly determined that Caulk could not raise a meritorious claim in this appeal.135
(64) In order to bring a successful claim of ineffective assistance of counsel
against an appellate attorney that did not raise any issue on appeal,
Mr. Caulk must show that Mr. Ceccotti was objectively unreasonable in failing to
find an arguable issue to raise.136 To do so, Mr. Caulk need only show that a
133 Def.’s Rule 61 Suppl. at 4. 134 Caulk, 2019 WL 1299962, at *2. 135 Id. at *4. 136 Neal, 80 A.3d at 946.
-32- reasonably competent attorney would have found at least one appealable issue. 137
He hasn’t and for good reason. Neither Mr. Ceccotti, a full-time criminal appellate
practitioner, nor the panel of justices on Mr. Caulk’s direct appeal—after the
examinations described above—could locate “a meritorious claim” or “any arguably
appealable issue” to press.138 And so, Mr. Caulk has failed to demonstrate that
Mr. Ceccotti performed deficiently when prosecuting his direct appeal. And on that
basis alone his claims of ineffectiveness against Mr. Ceccotti fail.139
V. CONCLUSION
(65) Having reviewed the record carefully, the Court has concluded that
Mr. Caulk’s claims are without merit, and no other substantial grounds for relief
exists. He has not met his heavy burden under Strickland of demonstrating that his
attorneys’ representation fell below an objective standard of reasonableness and that,
but for their alleged errors, the outcome of his case would have been any different.
Accordingly, Mr. Caulk’s Motion for Postconviction Relief is DENIED and
Mr. Eaton’s Motion to Withdraw is GRANTED.
137 Id. at 948. 138 Caulk, 2019 WL 1299962, at *4. 139 Hamby, 2005 WL 914462, at *2.
-33- SO ORDERED this 29th day of June, 2021.
Paul R. Wallace, Judge
Original to Prothonotary
cc: Timothy Maguire, Deputy Attorney General Matthew C. Bloom, Deputy Attorney General Edward Eaton, Esquire Ralph D. Wilkinson, Esquire Santino Ceccotti, Esquire Mr. Robert P. Caulk, pro se
-34-