IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) ) ID No. 1610013171 v. ) ) ) STEPHEN WHEELER, ) ) Petitioner/Defendant. )
Submitted: May 23, 2022
Decided: June 14, 2022
Upon Petitioner’s Amended Motion for Postconviction Relief (R-1)
DENIED
MEMORANDUM OPINION AND ORDER
Patrick Collins, Esquire, 8 East 13th Street, Wilmington, DE 19801; Attorney for Petitioner/Defendant.
Amanda Reese Nyman, Esquire and Kevin Gardner, Esquire, Deputy Attorneys General, Department of Justice, 13 The Circle, Georgetown, DE 19947; Attorneys for State of Delaware.
KARSNITZ, R. J. INTRODUCTION
The right of Delawareans to a trial by jury in a criminal case under the United
States1 and Delaware2 Constitutions is a fundamental one that is not to be waived
lightly or ill-advisedly. This is a postconviction matter alleging that defense
counsel at trial (“Trial Counsel”) gave deficient advice to Stephen Wheeler
(“Petitioner”) which deprived Petitioner of that right. Specifically, Petitioner
alleges that Trial Counsel told him that "a bench trial would be better because
certain evidence could come in with a judge that could not come in with a jury."3
Petitioner argues that this advice was deficient because the evidence admitted
or excluded under the Delaware Uniform Rules of Evidence (“DRE”) is the same
in a bench or a jury trial.4
I reject Petitioner’s claim that he was given incorrect advice as to the type of
evidence a Judge could receive in a bench trial, and I accept what Trial Counsel
testified he advised Petitioner.
1 U.S. Const. amend. VI. 2 Del. Const. art. I, § 7. 3 See Affidavit of Stephen Wheeler, A32. "A" refers to Appendix to Amended Motion for Postconviction Relief. 4 A32.
1 This raises the related question of the extent to which the colloquy between
Petitioner and the Court about the waiver of his right to jury trial overcomes other
deficiencies in the waiver process, such as the absence of a written waiver and
ambiguities in Trial Counsel’s advice. For the reasons discussed below, I find that
the colloquy in this case was thorough, appropriate, and more than adequate to
establish that the waiver of jury trial was knowing, intelligent and voluntary, and
overcomes other deficiencies.
FACTS
Facts from Trial
In the early morning hours of October 20, 2016, in Millville, Delaware, a 64-
year-old man was awakened in his bed by several suspects who put a blanket over
his head and assaulted him. He suffered multiple injuries including a broken nose
and broken ribs.5 The victim also testified that numerous electronics and his wallet
containing cash were taken.6 Petitioner was charged in connection with the incident,
as well as Lauren Melton ("Melton") and Jerome Wheeler.7 Both Melton and Jerome
Wheeler pled guilty as codefendants prior to Petitioner’s trial.8 Melton testified
5 A311-318. 6 A316-323. 7 Al93-211, 260-261, A364-366. 8 A193-21 l, 260-261, A364-366. 2 that Petitioner had discussed with her plans to rob the victim on October 19, 2016,
the day before the home invasion robbery.9 Text messages between Melton and
the telephone she identified as belonging to Petitioner and which was found by
police in Petitioner’s possession included the following messages: "The back
door is unlocked", "We are laying down", "I'm scared lol", "He is sleep", "I'm
looking for the keys", "He called the cops", "What TF am I going to do yo" and,
"Call your mom in u delete the messages".10 Melton testified that Petitioner, Jerome
Wheeler, and “Pat” came into the victim's house, that Petitioner did not participate
in the beating of the victim, but that all three men went through the house, taking
mostly electronics.11
Facts from Evidentiary Hearing
There were two witnesses at the April 8, 2022 evidentiary hearing:
Petitioner and Trial Counsel.
Petitioner
Petitioner testified that on March 23, 2022 he had a video call with Trial
Counsel before trial.12 Petitioner testified that Trial Counsel told him on that call that
9 A346. 10 A360-363. 11 A350-355. 12 T 5, 22. “T” refers to the transcript of the April 8, 2022 evidentiary hearing. 3 he would have a jury trial,13 and there was no discussion about having a bench
trial.14 Petitioner also met with Trial Counsel for his final case review on March 21,
2018, and Petitioner testified that a waiver of jury trial was not discussed at that
time.15 Petitioner testified that a waiver of jury trial was not discussed until Trial
Counsel's second meeting with him on March 26, 2018, the first day of trial.16
Petitioner testified Trial Counsel then told him that a bench trial would be best
because certain evidence could come in during a bench trial that could not come
in in a jury trial.17 Petitioner testified that Trial Counsel did not explain what that
evidence was, and that Petitioner did not ask.18 Petitioner testified that he did not
ask what that evidence was because he was nervous, it was his first trial, and he
thought the evidence would prove his innocence; however, he acknowledged
that he should have asked.19 Petitioner testified that he wanted a jury trial, but
ultimately decided on a bench trial because of Trial Counsel's advice that it
would allow the admission of more evidence.20 Petitioner testified that Trial
Counsel informed him that he was going to go in front of a Judge, and that he
13 T6. 14 T7. 15 T14. 16 T9. 17 T9,18. 18 T10,18. 19 T12,18-20. 20 T10,17-18. 4 should answer “yes” to all of the Judge’s questions.21 Petitioner testified that he
was not being truthful when he told the Judge that no one was forcing or
coercing him to waive his right to a jury trial, and that he was just doing what his
lawyer told him to do.22 Petitioner testified that he did not want a bench trial.23
Petitioner testified that he has the following convictions: a 2017 felony
possession of a controlled substance in a tier 3 quantity, a 2015 felony possession
of a firearm by person prohibited, and a 2017 misdemeanor theft by false pretense
less than $1,500,24 in addition to the felony charges he was convicted of in this
case.
Trial Counsel
Trial Counsel testified that he discussed the differences between a bench
trial and a jury trial, as well as the disadvantages and advantages of each, with
Petitioner.25 Trial Counsel testified that he had these conversations with the
Defendant on at least two occasions: one on the day of trial and the other before
trial.26 Trial Counsel testified that he explained a bench trial to Petitioner by
21 T10-12. 22 Id. 23 T11. 24 T15-16. 25 T22-24. 26 Id. 5 saying that the Judge “wears both hats;” i.e., is trier of fact and arbiter of the
law.27 Trial Counsel testified that he did not tell Petitioner that a bench trial
would be better than a jury trial because certain evidence could be admitted in
a bench trial that could not be admitted in a jury trial.28 Trial Counsel testified
that the first time he discussed having a bench or jury trial with Petitioner, no
decision was made by Petitioner.29 The second time he discussed it with
Petitioner the day of trial, was when Petitioner made the decision to have a
bench trial.30 Trial Counsel testified that he informed Petitioner of some of the
disadvantages of a jury trial: a codefendant might testify, the racial makeup of
a Sussex County jury might not be to his advantage, twelve jurors have to be
persuaded instead of one judge, and a judge might consider more evidence in
a bench trial with the understanding that he could give it the appropriate
weight.31 Trial Counsel testified that he never told Defendant what type of trial
to choose, that it is always Petitioner's choice, and that he never said it was
27 T31-32,35-36,44-45. 28 T41. 29 T24. 30 T24,25. 31 T28-33. 6 better to have a bench trial rather than a jury trial.32 Trial Counsel also testified
that he has approximately 35 years of criminal trial experience. 33
I. PROCEDURAL HISTORY
Delaware State Police arrested Petitioner on October 20, 2016.34 On January
9, 2017, a Sussex County Grand Jury indicted him on charges of Home Invasion,
Assault Second Degree, Robbery First Degree, and Conspiracy Second Degree.35
On March 26, 2018, Petitioner waived his right to a jury trial.36 After conducting
a colloquy with Petitioner, the Court found that Petitioner made a knowing,
intelligent, and voluntary decision to have a judge try his case instead of a jury.37
Petitioner's nonjury trial began on March 26, 2018 and lasted two days.38 At
the close of the State's case, Petitioner made a motion for judgment of acquittal, which
the Court denied.39 On March 27, 2018, the Court found Petitioner guilty on all
counts and ordered a presentence investigation.40 On April 6, 2018, the Court
sentenced Petitioner to a total of 13 years at Level 5 followed by probation.41
32 T37. 33 T40. 34 Al0-16. 35 DI 7, 8. "DI" refers to docket entry items in State v. Stephen Wheeler, ID# 1610013171. 36 DI 57; Al88-192, 218-224. 37 A218-224. 38 A214-217. 39 A616-620. 40 DI 58; A639-658. 41 DI 63; A661-691. 7 Petitioner appealed.42 The Delaware Supreme Court affirmed Petitioner’s
convictions and sentence on April 11, 2019.43
On January 27, 2020, Petitioner filed a pro se first motion for postconviction
relief. On September 27, 2021, Petitioner, by and through appointed postconviction
counsel, filed an Amended Motion for Postconviction Relief (the “Rule 61
Motion”). The Rule 61 Motion states one claim for postconviction relief:
that Petitioner was deprived of his right to a jury trial due to the ineffective
assistance of Trial Counsel. On December 1, 2021, Trial Counsel filed an
affidavit in response to the Rule 61 Motion (the “Affidavit”).44 On January
21, 2022, the State of Delaware filed a response to the Rule 61 Motion (the
“Response”).45 On February 24, 2022, Petitioner filed a reply to the State’s
Response (the “Reply”).46 After a review of the record of prior proceedings
in the case, the Rule 61 Motion, the Affidavit, the Response, and the Reply,
I determined that an evidentiary hearing was necessary.47 The evidentiary
hearing was held on April 8, 2022. The parties agreed to submit
42 DI 72. 43 Wheeler v. State, 209 A.3d 24 (Table) (Del. Apr. 11, 2019); DI 83-84; A794-796. 44 Super. Ct. Crim. R. 61(g)(2). 45 Super. Ct. Crim. R. 61(f)(1) and (2). 46 Super. Ct. Crim. R. 61(f)(3). 47 Super. Ct. Crim. R. 61(h). 8 simultaneous post-hearing memoranda. The State submitted its Letter
Memorandum on May 18, 2022 and Petitioner submitted his Post Hearing
Memorandum on May 23, 2022. This is my ruling on the Rule 61 Motion.
II. PROCEDURAL BARS UNDER RULE 61(i).
I first address the four procedural bars of Superior Court Criminal Rule
61(i).48 If a procedural bar exists, as a general rule, I will not address the merits of
the postconviction claim.49 Under the Delaware Superior Court Rules of Criminal
Procedure, a motion for post-conviction relief can be barred for time limitations,
successive motions, failure to raise claims earlier in the proceedings, or former
adjudication.50
First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes final.51 Wheeler’s conviction
became final for purposes of Rule 61 at the conclusion of direct review when the
Delaware Supreme Court issued its mandate on April 11, 2019.52 Since Petitioner
48 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del. 1990)). 49 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del. Super. April 28, 2009). 50 Super. Ct. Crim. R. 61(i). 51 Super. Ct. Crim. R. 61(i)(1). 52 Super. Ct. Crim. R. 61(m)(3). 9 filed his pro se motion for postconviction relief less than a year later, on January 27,
2020, this bar does not apply.
Second, second or subsequent motions for postconviction relief are not
permitted unless certain conditions are satisfied.53 Since this is Petitioner’s first
Rule 61 Motion, this bar does not apply.
Third, grounds for relief “not asserted in the proceedings leading to the
judgment of conviction” are barred unless the movant can show “cause for relief”
and “prejudice from [the] violation.”54 Ordinarily, a showing of cause is not satisfied
by merely showing that a claim was not raised. Petitioner must show that “some
external impediment” prevented him from raising the claim.55 Ordinarily, to
demonstrate prejudice, Petitioner must show that a “substantial likelihood” exists that
if the issue had been raised, the outcome would have been different.56 However, this
Rule 61 Motion is based on a claim of ineffective assistance of counsel. It is well-
settled Delaware law that, as collateral claims, ineffective assistance of counsel
claims are properly raised for the first time in postconviction proceedings. 57 Thus,
this bar does not apply.
53 Super. Ct. Crim. R. 61(i)(2). 54 Super. Ct. Crim. R. 61(i)(3). 55 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 56 Flamer v. State, 585 A.2d 736, 748 (Del. 1990). 57 State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State, 2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective 10 Fourth, grounds for relief formerly adjudicated in the case are barred.58
Petitioner’s claim of ineffective assistance of counsel was not formerly adjudicated
in this case. Thus, this bar does not apply.
Finally, the four procedural bars to do not apply either to a claim that the Court
lacked jurisdiction or to a claim that pleads with particularity that new evidence exists
that creates a strong inference of actual innocence,59 or that a new retroactively
applied rule of constitutional law renders the conviction invalid.60 Petitioner does
not claim that he has new evidence that creates an inference of his actual innocence,
or that a new retroactively applied rule of constitutional law renders his conviction
invalid.
Thus, none of the procedural bars under Rule 61 apply to the claim in this
Rule 61 Motion, and I will consider it on the merits.
III. PETITIONER’S BURDEN OF PROOF
The starting point for assessing Petitioner’s claim is the two-pronged
standard established in Strickland v. Washington,61 as adopted in Delaware by
assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective assistance that is raised for the first time in a direct appeal.”). 58 Super. Ct. Crim. R. 61(i)(4). 59 Super. Ct. Crim. R. 61(i)(5). 60 Super. Ct. Crim. R. 61(d)(2)(i) and (ii). 61 466 U.S. 668 (1984). 11 Albury v. State.62 Under Strickland and Albury, Petitioner must show that (1) Trial
Counsel’s representation “fell below an objective standard of reasonableness” (the
“performance prong”); and (2) the “deficient performance prejudiced [his]
defense.” (the “prejudice prong”).63 Petitioner must prove both prongs of the
Strickland test.
In considering the performance prong, the United States Supreme Court was
mindful that “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.”64 Strickland requires
an objective analysis, making every effort “to eliminate the distorting effects of
hindsight” and to “indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”65 In addition, “strategic
choices about which lines of defense to pursue are owed deference commensurate
with the reasonableness of the professional judgments on which they are based.”66
As to the performance prong, Petitioner must show that Trial Counsel’s decisions
were not reasonable strategic decisions.
62 551 A.2d 53 (Del. 1988). 63 Strickland at 687. 64 Id. at 690. 65 Id. at 689. 66 Id. at 681. 12 As to the prejudice prong of Strickland, Petitioner must demonstrate that
there exists a reasonable probability that, but for Trial Counsel’s unprofessional
errors, the outcome of the trial would have been different.67 Even if counsel’s
performance were professionally unreasonable, it would not warrant setting aside
the judgment of conviction if the error had no effect on the judgment.68 A showing
of prejudice “requires more than a showing of theoretical possibility that the
outcome was affected.”69
The Strickland prejudice prong has been modified for cases such as this one
where there is a claim that Trial Counsel ineffectively represented his client by
failing to ensure that Petitioner exercised his right to a jury trial. Under Vickers v.
Superintendent Graterford SCl,70 Petitioner must demonstrate a reasonable
probability that, but for Trial Counsel's failure to ensure a proper waiver of his right
to be tried before a jury, he would have exercised that right.71
Strickland also teaches that there is no reason for a court deciding an
ineffective assistance of counsel claim to approach the inquiry in any particular
order, or to address both prongs of the inquiry if the defendant makes an insufficient
67 Id. at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 68 Strickland, at 691. 69 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992). 70 858 F.3d 841 (3rd Cir. 2017). 71 Id. at 857. 13 showing on one. A court need not determine whether Trial Counsel's performance
was deficient before examining the prejudice suffered by the defendant because of
the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice, that course should be followed.72 In every
case the court should be concerned with whether, despite the strong presumption of
reliability, the result of the particular proceeding is unreliable because of a
breakdown in the adversarial process that our system counts on to produce just
results.73
The State refers me to four Delaware Superior Court decisions relating to the
alleged ineffective assistance of counsel in the context of a waiver of jury trial. In
State v. Couch74 defendant argued that his trial counsel acted unreasonably by
misrepresenting facts that coerced him into waiving his right to a jury trial. 75
Specifically, defendant alleged that his trial counsel told him that the State would
drop one of the two robbery first degree counts if he waived a jury (which the State
did) and that the State had strong evidence to convict him of both counts, with
which defendant disagreed.76 The Court found that defendant failed to establish that
72 Strickland, at 697. 73 Id. at 696. 74 2007 WL 987403 (Del. Super. Mar. 30, 2007), aff'd, 945 A. 2d 593 (Table) (Del. 2008). 75 Id. at *2. 76 Id at *2-4. 14 he was prejudiced.77 The Court also found that any deficiency was cured because
the trial judge had emphasized to defendant his right to a jury trial and the
consequences of waiving that right in an extensive colloquy.78 As a result, the Court
denied defendant’s motion for postconviction relief.79 Defendant appealed the
Superior Court's denial to the Delaware Supreme Court, which applied the
Strickland test and found that defendant twice told the trial judge that he wanted a
bench trial, and that defendant had not demonstrated that, but for error on the part
of trial counsel, he would not have been convicted.80
In State v. Taye81 defendant argued that his jury trial waiver was not
voluntary, knowing, and intelligent because he was not aware when he made his
decision to waive jury trial that his counsel would concede his identity as the driver
and his reckless conduct at trial.82 Under Strickland, the Court held that defendant
bore the burden of proof that trial counsel’s performance was unreasonable. 83 The
Court found that defendant bore the burden of proof that, but for trial counsel's alleged
error, defendant would have been acquitted, and that if substantial evidence existed
77 Id. 78 Id. at *4. 79 Id. 80 State v. Couch, 945 A.2d 593 at *2 (Table) (Del. 2008). 81 2014 WL 785033 (Del. Super. Feb. 26, 2013), aff''d, 2014 WL 4657310 (Del. Sept. 18, 2014). 82 Id. at *3. 83 Id., citing Couch, supra. 15 to support his conviction, his claim was undermined.84 The Court also held that,
even if counsel was deficient, any deficiency is cured when the trial judge engages
in a colloquy with defendant, ensuring that he understood his right to a jury trial and
the consequences of any waiver.85 The Court found that the trial judge engaged in
an extensive colloquy with defendant, and that as a result defendant’s waiver was
voluntary, knowing, and intelligent.86 The Court also found that trial counsel's
advice to defendant to waive a jury trial was a strategic and reasonable decision,
and that there was substantial evidence to support his conviction. 87 Therefore, the Court
found that the two-pronged Strickland test had not been met, and that defendant’s
claim of ineffective assistance of counsel failed.88
In State v. Hall,89 defendant argued that trial counsel was ineffective in
advising him to waive his right to a jury trial on two firearm possession charges that
were severed.90 The Court found this argument to be without merit since the trial
judge had engaged in a thorough colloquy with defendant, and his decision to waive
his jury trial was knowingly and intelligently made.91 The Court also found that
84 Id. 85 Id. 86 Id. at *4. 87 Id. 88 Id. 89 2016 WL 241192 (Del. Super. Jan. 19, 2016). 90 Id. at *1. 91 Id. at *3. 16 even assuming that counsel's performance was deficient, any deficiency was cured
by the Court's colloquy.92
In the most recent Superior Court case, State v. Caulk,93 defendant argued that
trial counsel erred by allowing his case to be tried by a judge, who was aware of his
criminal history.94 The Court found that trial counsel could not be deficient under
these circumstance because defendant’s decision to waive his jury trial was his
decision alone.95 Defendant has the ultimate authority to make certain fundamental
decisions regarding his case, including whether to plead guilty, waive trial by jury,
testify, and appeal,96 because these decisions are too important to be made by anyone
else.97 However, trial counsel retains a duty to advise his client regarding the waiver
of these rights.98 The Court stated that defendant must prove some deficiency in
trial counsel’s discussion with him about the waiver of a jury trial, and also prove
that deficiency tainted his waiver to such a degree as to overcome the record of his
waiver colloquy.99 The Court found that the trial judge conducted an extensive
92 Id. 93 2021 WL 2662250 (Del. Super. June 29, 2021). 94 Id. at *7. 95 Id. 96 Id., citing Taylor v. State, 28 A.3d 399,406 (Del. 2011) (quoting Jones v. Barnes, 463 U.S. 745,751 (1983)). See also Delaware Rules of Prof. Conduct, Rule 1.2(a). 97 Id., citing Cooke v. State, 977 A.2d 803, 842 (Del. 2009). 98Id. 99 Id. 17 colloquy with defendant and that any deficiencies on trial counsel's part were cured
by the trial judge's extensive waiver colloquy.100
IV. ANALYSIS
Performance of Trial Counsel
Advice of Trial Counsel
The gravamen of Petitioner’s claim that Trial Counsel’s assistance was
ineffective is that Trial Counsel advised him that he should waive a jury trial
because certain impeachment evidence might be admitted in a bench trial that could
not be admitted in a jury trial.101 Certain salacious evidence was found on a
cellphone related to the unseemly character of Melton: that the victim induced
Melton, then 19 years old, to have sex with another young woman while he watched
and masturbated, that the victim induced Melton and other young women to stay
with him by offering them drugs and that Melton was a prostitute. Trial Counsel
had previously stated in a pretrial office conference that he wanted to admit this
evidence to impeach Melton’s character for truthfulness or untruthfulness under the
Delaware Uniform Rules of Evidence (“DRE”) Rule 608, but the Judge ruled that this
sort of evidence was inadmissible for impeachment. Trial Counsel may have
100 Id. at *8. The Court did not address defendant’s claim of prejudice because defendant had failed to show that trial counsel performed deficiently. 101 A832. 18 believed that the Judge would be more lenient with the consideration of such
evidence in a bench trial than in a jury trial since he was both the trier of fact and the arbiter
of the law. However, this was difficult to ascertain because the Affidavit did not directly
respond to the allegations of ineffective assistance of counsel. The Affidavit was hardly a
model of clarity and left ambiguity as to exactly what advice Trial Counsel gave Petitioner
regarding the waiver of jury trial. This is one of the reasons I held an evidentiary hearing,
to hear the direct testimony of Trial Counsel, subject to cross-examination by Petitioner.
In any event, Petitioner argues that, since evidence admitted or excluded under
the DRE for purposes of determination of witness credibility by the trier of fact is
treated the same in a bench or a jury trial, Trial Counsel’s advice was erroneous and
deficient.102 Petitioner also argues that, given the Judge’s prior ruling that the
evidence was inadmissible under DRE 608, Trial Counsel should not have then
advised Petitioner to opt for a bench trial.103 However, during the trial, Trial
Counsel asked witnesses questions about their sexual proclivities, including if they
had had a threesome, which the Judge allowed over the State's objection.104 Trial
Counsel also asked and elicited responses regarding prostitution and drug use, and
pointed out the unseemliness of the 64-year-old victim consorting with a 19-year-
102 Amended Motion for Postconviction Relief, p.32. 103 Amended Motion for Postconviction Relief, pp.32-33. 104 A381, although the C o u r t did not allow Trial Counsel to ask if there was a video of the threesome. A381. 19 old woman. In other words, Trial Counsel was able to get the salacious
impeachment evidence into the record, although presumably the Judge did not
consider it as to credibility, in keeping with his prior ruling on inadmissibility.
Based on the testimony at the evidentiary hearing, summarized above, I must
weigh the credibility of Petitioner against that of Trial Counsel. I find serious
discrepancies in Petitioner’s testimony. He himself admitted that he was
untruthful with the Court during his jury trial waiver colloquy immediately
preceding his trial.28 During that colloquy, he told the Court that he wanted to
have a bench trial and that no one was forcing him to do that.29 However, at the
evidentiary hearing, he admitted that that was not true, that he wanted a jury
trial, and that he was forced into having a bench trial.30
On the other hand, Trial Counsel’s testimony at the evidentiary hearing was
consistent throughout. His testimony that he did not tell Petitioner that a bench trial
would be better than a jury trial, because certain evidence could be admitted in a
bench trial that could not be admitted in a jury trial, was credible. What Trial
Counsel may have been suggesting is that, when there is an objection in a bench
trial, the Court often hears evidence with the understanding that he or she is able
to give it the appropriate weight and to parse through the evidence to separate the
inadmissible from the admissible in a way a jury cannot. Having heard Petitioner
20 and Trial Counsel, I am convinced that Trial Counsel was telling the truth.
Written Waiver under Superior Court Criminal Rule 23
Petitioner also raises the issue, for the first time, that a written waiver of
jury trial was not completed in this case as required by Superior Court Criminal
Rule 23.105 Trial Counsel specifically asked the Judge about submitting a written
waiver, to which the Judge responded: "We may have. I haven't done it in so
long, I don't know."106 In any event, both Trial Counsel and the Judge ensured
that an appropriate and extensive colloquy was performed. In my view,
Petitioner’s oral waiver of jury trial, clearly memorialized on the record in response
to a fulsome colloquy, is more important and significant. While a written waiver is
important and preferable, I am satisfied with the colloquy.
Indeed, in Davis v. State,107 the Delaware Supreme Court held that a colloquy
is preferable to the mere acceptance of a defendant's written jury trial waiver, and that
Delaware trial judges should conduct colloquies with defendants.108 The Court
found that the purpose of a colloquy is to ensure that the defendant understands the
105 Amended Motion for Postconviction Relief, p.34-35. Super. Ct. Crim. R. 23(a) provides: “Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the Court and the consent of the State.” [Emphasis supplied.] 106 A191. 107 809 A.2d 565 (Del. 2002). 108 Id. at 571. 21 nature of his or her right to trial by jury that is being relinquished and the
implications of that decision.109 The purpose is not to ascertain the underlying
objectives for the defendant's decision to forego a trial by jury, since that could
impermissibly implicate the defendant's constitutional rights.110 The Court held that
the defendant bears the burden of proving that he or she did not exercise a valid
waiver of his or her right to a jury trial.111 The Court found that the Judge conducted
a limited colloquy with Davis, during which Davis testified that he understood his
right to a jury trial and to a waiver, and that he had discussed a waiver with his
attorney.112 Based on this, the Court found that Davis failed to demonstrate that his
waiver was anything other than intelligent and voluntary, and affirmed the Superior
Court's judgment.113
Timing of Waiver of Jury Trial
Petitioner also argues that his decision to waive a jury trial was made at the
last minute.114 However, the record shows that Trial Counsel spoke with Petitioner
109 Id. 110 Id. 111 Id. at 570 citing Adams v. United States ex rel. McCann, 317 U.S. 269, 281 (1942); United States v. Libretti, 28 F.3d 523,530 (10th Cir. 1994), aff'd, 516 U.S. 29 (1995); United States v. Robinson, 8 F.3d 418, 422 (7th Cir. 1993). 112 Id. at 570. 113 Id. at 573. 114 Amended Motion for Postconviction Relief, p.35. 22 about waiving his right to a jury trial on at least two separate occasions.115 Although
the colloquy and the waiver itself occurred on the morning of trial, both Petitioner
and Trial Counsel informed the Court that they had a conversation the week before
the trial as well as the day of the trial about the advantages and disadvantages of
waiving a jury trial.116
Colloquy
The Judge conducted an extensive colloquy to ensure that Petitioner
understood both his right to trial by jury and the implications of his decision to
waive that right.117 Furthermore, although Trial Counsel made a
recommendation as to Petitioner’s waiver of jury trial, the Judge’s colloquy
demonstrates to me that Petitioner understood that it was his choice and his choice
alone to waive a jury trial, and that he could just as well have chosen to have a jury
trial.118 Although Petitioner, with the benefit of hindsight, may now wish that
he had chosen differently, he cannot reverse his own decision. In short, I find
that Petitioner’s waiver of his jury trial was voluntarily, knowingly, and
intelligently made.
Petitioner submits that Trial Counsel’s advice was deficient under the
115 Al 90, A221. 116 A190, A221. 117 A220-224. 118 Id.
23 performance prong of Strickland. The State submits that Trial Counsel's
explanation of the advantages and disadvantages of a jury trial, as well as his
strategic advice to choose a judge trial, is owed a strong presumption of
professional reasonableness and sound trial strategy, and was not deficient. I do
not find that Trial Counsel’s advice to Petitioner was deficient under the
performance prong of Strickland.
Prejudice to Petitioner
Assuming arguendo that Trial Counsel’s performance was deficient, I
further find that Petitioner was not prejudiced by any such deficiency.
Although I do not have to address the prejudice prong given my finding on the
performance prong, I do so to address the parties’ disagreement on which
standard should be used to determine whether Petitioner was prejudiced by Trial
Counsel’s performance.
The State initially relied on the traditional Strickland prejudice standard: is
there a reasonable probability that, but for Trial Counsel’s unprofessional errors,
the outcome of the trial would have been different; i.e., that Petitioner would have
chosen a jury trial and been acquitted? Petitioner relies on the Vickers standard: is
there a reasonable probability that, but for Trial Counsel's failure to ensure a
proper waiver of his right to be tried before a jury, Petitioner would have
24 exercised that right? Under either standard, I find no prejudice.
In Vickers, defendant sought federal habeas corpus relief after the denial of
his state postconviction motion was affirmed on appeal. Neither a written waiver nor
an oral waiver of defendant’s right to a jury trial was on the record.119 Had there
been, then trial counsel would not have been found to be deficient and no prejudice
would have been found.120 In reviewing defendant’s claim, the Third Circuit
applied the two-prong Strickland test: 1) whether trial counsel's performance was
deficient, and 2) whether defendant established the requisite prejudice.121 The Court
found that trial counsel was deficient because he failed to ensure that defendant
properly waived his right to a jury trial.122 The Court found that failure to comply
with jury waiver requirements (such as the Delaware requirement for a written
waiver) does not establish a per se constitutional violation, but such requirements
do provide assurance that defendant has been fully apprised of his right to a jury
trial and insulates the waiver from constitutional challenge.123 The Court also found
that competent trial counsel is expected to ensure a defendant receives the benefit
of these well-established protections; however, defendant’s trial counsel did not
119 Vickers at 847 (3rd Cir. 2017). 120 Id. at 850-852. 121 Id. 122 Id. at 850. 123 Id. at 851, citing Gov't of Virgin Islands v. Parrott, 476 F.2d 1058, 1061-62 (3rd Cir. 1973); Commonwealth v. Mallory, 941 A.2d 686, 697-98 (Pa. 2008). 25 conduct any investigation to determine whether defendant had been given an
appropriate colloquy before his case was scheduled for a bench trial and simply
assumed that there had been a customary waiver.124 Had trial counsel reviewed the
file, docket or record, he could have ensured that an appropriate colloquy had been
completed.125 Although trial counsel inherited the case only weeks before trial, the
Court nonetheless found that he was required to ensure that defendant formally
waived his jury trial right.126 As a result, the Court found that trial counsel’s conduct
was unreasonable under the performance prong,127 and turned to the prejudice
prong.
The Court held that prejudice should not be presumed;128 however, where
defendant claims ineffective assistance of counsel based on a pre-trial process that
caused him to forfeit a constitutional right, the proper prejudice standard is whether
defendant can demonstrate a reasonable probability that, but for trial counsel's
ineffectiveness, he would have opted to exercise that right. 129 In so holding, the
Court modified the prejudice test set forth in Strickland, which requires a reasonable
probability that, but for trial counsel's unprofessional performance, the result of the
124 Id. at 851. 125 Id. 126 Id. 127 Id. 128 Id at 855. 129 Id. at 857. 26 proceeding would have been different.130 The Court then found that defendant was
unable to establish on the record a reasonable probability that he would have chosen
a jury trial but for his counsel's deficiency.131 Instead, the Court found that the
record did not contain any credible evidence that defendant would have chosen
a jury trial and instead showed that he made an informed, strategic decision to
proceed with a bench trial after numerous consultations with trial counsel.132
In my view, Petitioner fails to meet the traditional Strickland prejudice test
that the result of his trial would have been different. There was overwhelming
evidence to convict in his case. The trial judge stated, “I think realistically this case
wasn't close at all".133
Moreover, applying Vickers' modified prejudice test, Petitioner’s claim still
fails because the record does not establish that he would have chosen a jury trial.
Rather, the record shows to me that Petitioner made an informed, strategic decision
to proceed with a bench trial after consultations with Trial Counsel. This is what
the Court found in Vickers, even without the benefit of a colloquy. Although the
Court found that defendant’s trial counsel’s performance was deficient, it denied
130 Id. at 856-857. 131 Id. at 858. 132 Id. at 857. 133 A650.
27 his ineffective assistance of counsel claim and writ of habeas corpus because he
failed to demonstrate that, but for his counsel's deficiency, he would have had a
jury trial.134
V. CONCLUSION
Since it plainly appears to me from the record of prior proceedings in the
case, the Rule 61 Motion, the Affidavit, the Response, the Reply, the
evidentiary hearing, the State’s Letter Memorandum and Petitioner’s Post
Hearing Memorandum, that Petitioner is not entitled to relief, I am entering an
order for its summary dismissal.135
Petitioner Stephen Wheeler’s Amended Motion for Postconviction Relief is
DENIED.
IT IS SO ORDERED.
____________________________ /s/Craig A. Karsnitz
cc: Prothonotary Andre M. Beauregard, Esquire
134 Vickers at 858. 135 Super. Ct. Crim. R. 61(d)(5). 28