IN THE SUPREME COURT OF THE STATE OF DELAWARE
STEPHEN WHEELER, § § No. 244, 2022 Defendant Below, § Appellant, § Court Below: Superior Court § of the State of Delaware v. § § Cr. ID No. 1610013171(S) STATE OF DELAWARE, § § Appellee. §
Submitted: January 18, 2023 Decided: April 11, 2023
Before SEITZ, Chief Justice; VAUGHN and TRAYNOR, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Patrick J. Collins, Esquire, COLLINS & PRICE, Wilmington, Delaware, for Appellant Stephen Wheeler.
Kathryn J. Garrison, Esquire, DELAWARE DEPARTMENT OF JUSTICE, Dover, Delaware, for Appellee State of Delaware. TRAYNOR, Justice:
Stephen Wheeler was convicted in the Superior Court of four felonies for his
role in a violent home invasion. He was sentenced to 13 years in prison. After this
Court affirmed those convictions, Wheeler returned to the Superior Court seeking
postconviction relief in the form of a new trial. He says that his convictions are the
product of an ill-advised waiver of his right to have his case heard and decided by a
jury.
According to Wheeler, his lawyer counseled him to let a judge, sitting without
a jury, determine his guilt or innocence. If not for this advice, which was by
Wheeler’s lights objectively unreasonable, Wheeler claims that he would not have
waived his jury-trial right. Said differently, Wheeler contends that he gave up a
vitally important constitutional right because of his lawyer’s constitutionally
deficient representation and that his convictions are so tainted by that decision that
they cannot stand.
After an evidentiary hearing at which Wheeler and his trial counsel recounted
the circumstances surrounding the jury-trial waiver, the Superior Court denied
Wheeler’s motion for postconviction relief. Pointing to, among other things, an
extensive colloquy between Wheeler and the trial judge—an exchange designed to
ensure that Wheeler’s waiver was uncoerced and intelligently entered—the court
rejected both Wheeler’s account of the substance of his lawyer’s advice and his claim
2 that, but for that advice, he would have insisted on a jury trial. The court derived
these findings largely from the court’s assessment of the relative credibility of
Wheeler and his trial counsel. More specifically, the court credited counsel’s
account of the advice he had shared with Wheeler, while discounting Wheeler’s
version. The court also found, after hearing from Wheeler and his trial counsel at a
postconviction evidentiary hearing, that Wheeler had made an informed strategic
decision to proceed with a bench trial. Because we defer to these credibility
determinations and because the Superior Court’s decision is otherwise free from
error, we affirm the denial of Wheeler’s motion.
I
A
The charges leveled against Wheeler—home invasion, assault in the second
degree, robbery in the second degree, and conspiracy in the second degree—
stemmed from the October 2016 assault and robbery of Gerald Mueller. The assault
and robbery occurred within Mueller’s Millville residence; it was an inside job.
It seems that Mueller, who was 64 years old at the time, kept large quantities
of cash in his house, a fact that was well-known by Lauren Melton, a 19 year-old
who had recently moved into Mueller’s house. Although Melton stayed at Mueller’s
3 house “almost every night,” sleeping “[i]n his bedroom or the spare bedroom,”1 she
was also “dating”2 Wheeler.
On October 19, Melton spent much of the day with Wheeler “riding around.”3
During that time, Wheeler, who was also aware of Mueller’s penchant for keeping
large amounts of cash on hand, confided in Melton that he planned to rob Mueller.
Wheeler dropped Melton off at Mueller’s house around 8:00 p.m., and Melton and
Mueller spent the rest of the evening watching television, after which they went to
bed together.
After Mueller fell asleep, Wheeler and his cousins Jerome and Pat entered the
home through the backdoor armed with guns. Once inside Mueller’s bedroom,
Jerome and Pat beat the sleeping Mueller with their fists, asking “where is the
money?” and “what’s the combination for the safe?”4 Mueller’s hands were bound,
and he was choked with a belt and hit in the face with a heavy lamp. Meanwhile,
Wheeler and Melton tried to open Mueller’s safe. When Wheeler, who brought a
bag of tools, opened the safe and learned that it was empty, he, Jerome and Pat
ransacked the house, stealing various electronics as well as Mueller’s wallet, before
leaving. Later, Melton helped Mueller get out from underneath a large dresser that
1 App. to Opening Br. at 343. 2 Id. at A342. 3 Id. at A345. 4 Id. at A313–15. 4 had been pushed on top of him. Mueller used Melton’s cellphone to call 911, and
then Melton texted Wheeler and called her mother. Mueller suffered multiple
broken ribs and a broken nose.
Although Melton feigned innocence when the police arrived, it became
apparent to the police that Melton was complicit in Wheeler’s invasion of Mueller’s
home and the attendant assault and robbery. In particular, a consensual search of
Melton’s cellphone revealed incriminating text messages in which Melton told
Wheeler, among other things, that the backdoor of the residence was unlocked and
alerted him when Mueller had fallen asleep. Several months later, Melton agreed to
cooperate in the prosecution of Wheeler.5
B
After Wheeler was indicted on the previously mentioned charges, his case was
eventually scheduled for trial. Two exchanges between counsel and the trial judge
shortly before jury selection was to begin on the first day of trial set the stage for
Wheeler’s jury-trial waiver.
At an office conference, the prosecutor expressed concern that Wheeler would
attempt to introduce an irrelevant video recording found on Melton’s phone. In
5 Melton was named as Wheeler’s codefendant in each of the four counts of Wheeler’s indictment. She entered into a plea agreement in April 2017 under which she pleaded guilty to four misdemeanors and agreed to testify against Wheeler at his trial. After she did that, she was sentenced to time served, which was approximately six months. Jerome Wheeler was indicted separately and eventually pleaded guilty to robbery in the first degree and conspiracy in the second degree. He was sentenced to three years in prison followed by one year of probation. 5 response, Wheeler’s counsel confirmed that he would seek to admit a video that
depicted Melton having sex with another female while Mueller watched and
masturbated. Not surprisingly, the trial judge asked counsel to explain how the video
was relevant to the home invasion and related crimes. Wheeler’s counsel replied
that, because Melton—slated to testify as a prosecution witness—had denied in a
pretrial statement that the recorded incident had happened, the video could be used
to impeach her credibility. Counsel also contended that the video “goes to moral
turpitude”6 and also “could show a biasness [sic] towards the old man that she’s
testifying on behalf of.”7 Stating that, as a general matter, this type of evidence is
inadmissible under D.R.E. 608,8 the trial judge advised Wheeler’s counsel to
exercise caution before seeking the admission of the video. Specifically, the court
admonished counsel, “Before you ask your questions in there, . . . you ask me before
you ask the question[.] . . . [And] you better go get some [Rule] 608 brushup before
you walk into the courtroom.”9
Chastened by the court’s comments, Wheeler’s counsel met with Wheeler in
the courthouse lockup and then reported back to the court:
6 App. to Opening Br. at A182. 7 Id. at A183. 8 D.R.E. 608 provides, in relevant part, that “[e]xcept for criminal conviction under Rule 609 or evidence of bias under Rule 616, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of . . . [t]he witness. . . .” 9 App. to Opening Br. at A183. 6 Your Honor, I just went down to talk to my client again. Last minute thing. And last week when we were talking, he was mentioning about waiving jury or not. And I went through the benefits and the downfalls with waiving a jury.
I told him what was going on this morning. I went down again. He says, I still feel that I want to waive jury. I said, Here’s the benefit, here’s the downfall, it’s up to you. All parties have to agree. It’s not just us. It’s the judge and the State.10
Wheeler’s counsel added that the State was not opposed to a bench trial.
Although dismayed by this late-breaking development because a pool of
jurors had been summoned and was waiting dutifully for jury selection to begin, the
court agreed to consider Wheeler’s waiver but only if he “waives on the record . . .
[and] understands what he’s doing.”11 Wheeler’s counsel then asked if the court had
a written waiver form. The court answered candidly: “We may have. I haven’t
done it in so long, I don’t know.”
Nothing further was mentioned—or done—about Wheeler waiving his right
to a jury trial in writing despite a Superior Court rule that contemplates that such
waivers will be in writing. Even so, Wheeler was brought before the trial judge in
open court for the purpose of exploring his understanding of the significance of a
jury-trial waiver. Because the ensuing colloquy between the court and Wheeler is
10 Id. at A190. 11 Id. at A191. 7 central to Wheeler’s postconviction relief claim and its denial by the Superior Court,
we reproduce it here, with the exception of non-substantive edits, in its entirety:
THE COURT: [T]he question. . . was raised . . . that you may wish to waive a jury trial and have a bench trial. Is that correct?
THE DEFENDANT: Yes, sir.
THE COURT [to Counsel]: All right. Is there anything you wish to say before I have a colloquy with the gentleman?
COUNSEL: No, Your Honor. I actually explained to him that you were going to have a colloquy. I went over the rights. Obviously, the colloquy will cover what I went over with him and what he believes the benefits are and the downfalls of waiving a jury.
THE COURT [to the Defendant]: I don’t give you an opinion. I just tell you what your rights are and you make the decision. Do you understand that?
THE COURT: Your lawyer is the one that advises you. We were prepared this morning, I already had the jury, the jury is in Courtroom 1, to proceed with a selection of a jury and have a jury trial concerning your case. [Your lawyer] has advised me this morning that you have thought about some discussions you had with him last week further and wish to waive a jury trial. Is that correct?
THE DEFENDANT: Yes, sir. ....
THE COURT: There are certain decisions that you get to make and only you get to make. For example, to take a plea or go to trial, that’s your call. To have a jury trial or have a bench trial, have a judge 8 try it, that’s your call. And then the final one that’s exclusively your call is whether you testify at trial or remain silent. That’s your call completely, too. [For] [e]ach one of those[,] you get your advice from your lawyer, but you make the decision. Do you understand that?
THE COURT: You’re the captain of your ship. If you waive a jury trial, this is what you give up: A jury consisting of 12 citizens of Sussex County, and the 12 citizens would listen to the evidence and listen to the testimony, and at the end of the trial, they would be asked to make a verdict. For them to make a verdict which ends the case, there are two possible verdicts; guilty and not guilty. All 12 jurors have to be in complete agreement that you’re guilty, [and] all 12 have to be in complete agreement that you’re not guilty in order to reach one of those verdicts. The jurors decide the facts of the case based on the testimony. They must apply the law as instructed by the judge. If at the end of trial the 12 of them can’t agree, we don’t ask them whether it’s 11 to 1, 1 to 11, 7 to 5 or 8 to 4. We just set it down for another trial. Do you understand that?
THE COURT: So in a jury trial, the jury applies the law, as instructed by the judge, to the facts as they find them, based upon all of the testimony, and they make the credibility determinations and basically attempt to decide what happened. When you have a bench trial, the judge does everything. He has to apply the same law, but the judge makes the credibility determinations and makes the finding of facts. Do you understand that?
THE COURT: Is it your personal decision that you would rather have a judge try this case than a jury?
9 THE DEFENDANT: I would have a judge trial.
THE COURT: You want to have a jury trial?
COUNSEL: He said “judge,” Your Honor.
THE COURT: I’m sorry. A judge trial?
THE DEFENDANT: A judge trial.
THE COURT: This is your decision?
THE COURT: Nobody is forcing you or threatening or twisting your arm. This is how you want to do it?
THE DEFENDANT: Yes, sir.12
The court accepted Wheeler’s waiver and held a bench trial. Over the course
of the next two days, the court heard from eight witnesses, including Melton and
Mueller. Wheeler did not testify at trial and called no witnesses in his defense.
Despite the court’s pretrial comments—made when it appeared that the case
would be heard by a jury—about the relevance of Melton’s and Mueller’s sexual
conduct, the court, now sitting as the trier of fact, granted Wheeler’s counsel
considerable leeway on that subject during the trial. For instance, in his opening
statement, Wheeler’s counsel pointed out that the 64-year-old Mueller lived with
several female teenagers for whom he would buy drugs and with whom he would
12 Id. at A220–23. 10 have sex. And during his cross-examination of Melton, Wheeler’s counsel elicited
admissions from Melton that she engaged in prostitution and that, the first time she
met Mueller, he paid her $300 and the two had sexual intercourse. But when counsel
pressed Melton on whether anyone video-recorded the “threesomes” she participated
in with Mueller—a fact that the court allowed in over the prosecutor’s objection—
the court, consistently with its pretrial comments, shut down the line of questioning.
In the end, however, the lascivious testimony Wheeler’s counsel was able to
elicit did not influence the trial judge’s verdict. Instead, the court focused on the
previously described text messages and Melton’s trial testimony, which the court
characterized as “blunt and honest.”13 For the court, “this case wasn’t close at all.”14
It found Wheeler guilty on all counts and a week later sentenced him to 13 years of
incarceration at supervision Level V.
C
Wheeler appealed his convictions to this Court, raising two issues: (1) that his
phone was unlawfully seized in violation of the Fourth Amendment, and (2) that
there was insufficient evidence to support his robbery conviction.15 We found no
merit in either of these arguments and affirmed the judgment of the Superior Court.16
13 Id. at A648. 14 Id. at A650. 15 Id. at A794–95. 16 Wheeler v. State, 209 A.3d 24, 2019 WL 1579600 (Del. Apr. 11, 2019) (TABLE). 11 D
Wheeler then filed a timely pro se motion for postconviction relief under
Superior Court Criminal Rule 61. After counsel was appointed to represent Wheeler,
he filed an amended motion, which contained a single claim: that he was deprived
of the right to a jury trial because of his counsel’s deficient performance. The
gravamen of Wheeler’s claim was encapsulated in his sworn affidavit:
I wanted to have a jury trial but [my lawyer] told me it was better to have a bench trial. He told me on the morning of trial that a bench trial would be better because certain evidence could come in with a judge that could not come in with a jury. I accepted [my lawyer]’s advice and waived a jury trial. [My lawyer] never explained to me what evidence would be admissible in a bench trial but not a jury trial.17
In a responsive affidavit filed at the Superior Court’s direction, Wheeler’s trial counsel stated:
Trial Counsel . . . believe[s] that all conversations, arguments, court proceeding[s] and oral representations in chambers or in open Court are most accurately depicted in the transcripts of those proceedings, in the contexts [sic] in which they were given, and not as Movant has cherry-picked the facts as presented in his Amended Motion for Post- conviction Relief. . . . Trial Counsel admits that the evidence of salacious material involving the victim, Mr. Mueller and the Co- Defendant and her friends was ruled inadmissible[.] . . . Trial Counsel believes that upon cross-examination of Mr. Muller [sic], the Court should have allowed an inquiry into the probativeness of his character for truthfulness based on moral turpitude pursuant to Rule 608 (b) of the Delaware Rules of Evidence. . . . Trial Counsel discussed and advised the benefits and disadvantages of a jury verses [sic] a non-jury trial with the Movant’s matter which included the roles which a Presiding Judge would be as a finder of fact and that 17 App. to Opening Br. at A832. 12 of a finder of law. Both roles by one person and would not be separate roles of a Jury and Judge. Trial Counsel believes he was explicit in his discussion and believes that the Movant’s misinterpretated [sic] this discussion in his assertions in his affidavit submitted. . . . Finally, Trial Counsel agrees that there was no written waiver of Movant’s rights to waive a Jury Trial and agrees that the Court’s oral colloquy is reflective in the proceeds [sic] transcripts.18 Because of the lack of clarity in counsel’s affidavit, the Superior Court
scheduled an evidentiary hearing so that counsel’s explanation of the advice he had
given would be subject to cross-examination by Wheeler. Wheeler and his trial
counsel testified at the hearing, and their versions of their pre-waiver discussions
differed from each other.
Wheeler testified, for example, that there had been no discussions with his
counsel about the difference between a bench trial and a jury trial, except those that
occurred on the first day of trial. He recalled that he had two meetings with his
counsel that morning, and that, contrary to what he told the trial judge during the
waiver colloquy, the first time that he and his counsel discussed a jury-trial waiver
was during the second meeting. By contrast, Wheeler’s counsel testified that he and
Wheeler discussed the topic at least two times—once before trial and again on the
first day of trial.
As to the substance of Wheeler’s counsel’s advice, Wheeler’s testimony did
not stray from the account given in his affidavit. According to Wheeler, his lawyer
18 Id. at A882–86. 13 told him that “it’s best for me to have a bench trial because certain evidence could
come in in a bench trial that couldn’t come in during a jury trial.”19 Explaining why
he told the judge in the pre-waiver colloquy that he wished to waive his right to a
jury trial, Wheeler said, “I went with my lawyer’s advice. I thought . . . he knew
what was best.”20
Wheeler’s counsel recounted the substance of his advice in similar, if slightly
more nuanced, terms. He testified that he never told Wheeler that a judge or jury
trial would be better or worse—“I just gave him options.”21 Counsel testified that,
in addition to the issue of the lascivious impeachment evidence, he had multiple
concerns that influenced his views on whether a bench trial might be preferable to a
jury trial. His concerns included the unavailability of a witness whose attorney
would not let him testify—a fact that a jury might construe against Wheeler—as well
as racial considerations given that Melton and Mueller were white and Wheeler was
Black.
Although Wheeler’s counsel was unsure whether he had shared all of his
concerns with Wheeler, he testified that he had explained to Wheeler, who was “very
active in his defense,”22 about the dual role a judge plays in a bench trial:
19 Id. at A951–52. 20 Id. at A954. 21 Id. at A979. 22 Id. at A971. 14 But I did tell him about the fact that the judge, if you have a bench trial, he will see or hear the evidentiary arguments before being made and make a decision on those arguments, and he will also be the finder of fact. So everything goes in front of a judge in a bench trial. In a jury trial, the jury doesn’t see the evidentiary arguments and just sees what the evidence presented that would be admitted by the judge. So I explained that to him, and I believe -- I can’t be certain, but the concern about trying to at least get the flavor that Mr. Mueller was -- didn’t have clean hands.23
Wheeler’s counsel acknowledged that, as a legal matter, the judge as fact-finder
cannot be influenced by what he hears during argument; “[t]hey have to keep it
separate.”24 He explained, however, that “[w]hen I prepare for any trial, any
advantage, whatever that advantage might be, within the realms of the law, I will
take if it might be advantageous.”25
E
Wheeler urged the Superior Court to find that his counsel’s advice was so
erroneous and deficient as to constitute ineffective assistance of counsel—a
conclusion that, according to Wheeler, warrants a new trial. The court, however,
was not persuaded, making consequential credibility findings that eroded the
foundation of Wheeler’s claim. It found “serious discrepancies”26 in Wheeler’s
testimony. By contrast, the court was convinced that Wheeler’s counsel “was telling
23 Id. at A973. 24 Id. at A974. 25 Id. 26 Wheeler, 2022 WL 2134686, at *7. 15 the truth”27 during the Rule 61 evidentiary hearing. And more specifically, the court
found that “[Wheeler’s counsel’s] testimony that he did not tell [Wheeler] 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.”28
As we read the Superior Court’s opinion, these credibility determinations underpin
the court’s ultimate conclusions that (i) Wheeler’s counsel’s advice was not
constitutionally deficient, and (ii) “[Wheeler] made an informed, strategic decision
to proceed with a bench trial after consultations with Trial Counsel.”29 Based on
these conclusions, the court denied Wheeler’s motion for postconviction relief.
In this appeal, Wheeler contends that the Superior Court erred in denying his
postconviction relief motion and insists that his counsel’s constitutionally deficient
advice caused him to waive his right to a jury trial. He now says that, but for his
counsel’s deficient performance, he would have exercised his right to a jury trial.
Wheeler also claims that the absence of a written waiver as required by Delaware
Superior Court Criminal Rule 23(a) is further evidence of his trial counsel’s deficient
performance.
27 Id. 28 Id. 29 Id. at *9. 16 II
We review the Superior Court’s denial of postconviction relief for abuse of
discretion.30 We will not disturb the trial court’s factual determinations on appeal
“if they are based upon competent evidence and are not clearly erroneous.”31 In
deciding legal or constitutional questions, we apply a de novo standard of review.32
III
To establish that his right to effective assistance of counsel was curtailed,
Wheeler must show “first, that his counsel’s representation fell below an objective
standard of reasonableness and, second, that the deficiencies in counsel’s
representation caused him substantial prejudice.”33 These are the frequently cited
“well-worn standards” applicable to ineffective-assistance-of-counsel claims
announced by the United States Supreme Court nearly four decades ago in Strickland
v. Washington.34 We may uphold the denial of an ineffective-assistance claim
without addressing the reasonableness of trial counsel’s performance if prejudice is
lacking.35
30 Gattis v. State, 955 A.2d 1276, 1280–81 (Del. 2008). 31 Burrell v. State, 953 A.2d 957, 960 (Del. 2008). 32 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 33 Green v. State, 238 A.3d 160, 174 (Del. 2020). 34 466 U.S. 668 (1984). 35 Id. at 697. 17 In this case, Wheeler does not complain that his counsel’s trial performance
was lacking. Instead, he claims that the advice his counsel provided in advance of
his jury-trial waiver was “manifestly deficient”36 because it was erroneously
grounded in a flawed understanding of the rules of evidence. Implicit in Wheeler’s
claim is that it is objectively unreasonable for defense counsel to advise his client
that evidence that was inadmissible at a jury trial could be admitted in a bench trial.
No reasonable lawyer would, according to Wheeler, give that advice.
Framed in this manner, Wheeler’s argument is more than colorable. But,
unfortunately for Wheeler, the Superior Court rejected his characterization of his
counsel’s advice and did so because it found counsel’s rendition of the advice more
credible than Wheeler’s. As quoted above, the court was “convinced that Trial
Counsel was telling the truth,”37 while finding “serious discrepancies in [Wheeler’s]
testimony.”38
When a trial court acts as fact-finder, its findings will not be disturbed on
appeal if they are supported by the record and are the product of an orderly and
logical deductive process.39 “When the determination of facts turns on the credibility
of the witnesses who testified under oath before the trial judge, this Court will not
36 App. to Opening Br. at A866. 37 Wheeler, 2022 WL 2134686, at *7. 38 Id. 39 Levitt v. Bouvier, 287 A.2d 671, 673 (Del. 1972). 18 substitute its opinion for that of the trial judge.”40 We see no reason here to depart
from these time-honored principles of appellate review. Thus, we accept the trial
court’s assessment of the relative credibility of Wheeler and his trial counsel.
Concomitantly, we reject, as the Superior Court did, “[Wheeler’s] claim that he was
given incorrect advice as to the type of evidence a Judge could receive in a bench
trial”41 and accept counsel’s version of the advice he gave Wheeler.
We turn then to the advice Wheeler’s counsel offered to Wheeler as he
considered whether he should waive his right to a jury trial. Counsel testified that
he had “several conversations with Mr. Wheeler concerning the benefits and the
drawbacks for having a jury or nonjury trial.”42 Although counsel did not tell
Wheeler that evidence that was inadmissible before a jury would be admissible
before the judge, he did suggest that the judge would be exposed to inadmissible
evidence when considering evidentiary objections. Specifically, he recalled how he
broached this topic with Wheeler:
[I]f you have a bench trial, [the judge] will see or hear the evidentiary arguments before being made and make a decision on those arguments, and he will also be the finder of fact. So everything goes in front of a judge in a bench trial. . . . In a jury trial, the jury doesn’t see the evidentiary arguments and just sees . . . the evidence presented that
40 Vann v. Daniels, 45 A.3d 150, 2012 WL 1852233, at *1 (Del. May 21, 2012) (TABLE); Meding v. Meding, 584 A.2d 1228, 1990 WL 197839, at *1 (Del. Nov. 7, 1990) (TABLE); O’Brien v. State, 820 A.2d 372, 2003 WL 897431, at *2 (Del. Mar. 6, 2003) (TABLE) (“Questions of witness credibility and the resolution of conflicts in witness testimony lie solely within the province of the trier of fact.”). 41 Wheeler, 2022 WL 2134686, at *1. 42 App. to Opening Br. at A965–66. 19 would be admitted by the judge. So I explained that to [Wheeler], and I believe -- I can’t be certain, but the concern about trying to at least get the flavor that [the victim] -- didn’t have clean hands.43
Wheeler’s counsel recalled that he explained the available options to Wheeler,
who actively participated in his defense, but emphasized that the choice between a
bench trial and a jury trial was Wheeler’s to make. Finally, Wheeler’s counsel
denied Wheeler’s charge that he directed Wheeler how to respond to the trial judge’s
questions during the waiver colloquy.
Although counsel’s advice regarding the trial judge’s exposure to
inadmissible evidence could be viewed as technically correct, it is also suggestive of
a dubious trial strategy, one we are loath to condone. After all, putting inadmissible
evidence before an experienced trial judge knowing that it must be ignored when the
judge renders his verdict is of questionable value.44 Wheeler’s trial is a case in point.
The trial judge gave Wheeler’s counsel a wide berth, allowing evidence that painted
Mueller as a dissolute and opportunistic man. The court also allowed testimony that
showed Melton was mired in a world of sex, drugs, and deception. We will never
know whether, had the case been tried to a jury, the court would have been so tolerant
of Wheeler’s forays into these unseemly details. In the end, however, the court based
43 Id. at A973 44 See Burke v. State, 692 A.2d 411, 1997 WL 139813, at *2 (Del. Mar. 19, 1997) (TABLE) (“[A] judge, sitting 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.”) (alteration in original) (quoting United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993)). 20 its verdict, not on Mueller’s and Melton’s lifestyles, but on the cellphone evidence
and Melton’s “blunt and honest” in-court testimony.
Despite our misgivings over the nature and clarity of counsel’s strategic
advice to Wheeler, we must under Strickland’s performance prong “indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.”45 As Strickland reminds us, “[n]o particular set of detailed
rules for counsel’s conduct can satisfactorily take account of the variety of
circumstances faced by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant.”46
Here, Wheeler’s counsel considered his inability to get certain evidence of
which the trial judge was aware before a jury, as well as the racial make-up of the
key actors, and the possibility that a key witness might refuse to testify. Counsel
suggested to Wheeler that he should consider a bench trial because of those factors,
but made it clear that the decision was Wheeler’s to make. Counsel undoubtedly
drew comfort from his knowledge that, should Wheeler opt for a bench trial, the trial
judge would carefully question Wheeler to ensure that his waiver was knowing,
intelligent, and voluntary. Under these circumstances, it was not an abuse of
45 Strickland, 466 U.S. at 689. 46 Id. at 689–90. 21 discretion for the Superior Court to conclude that Wheeler’s trial counsel’s
performance—and specifically his pre-waiver advice—was not deficient.
Wheeler also argues that “[i]t was error to hold that . . . Wheeler’s waiver was
valid absent a written waiver.”47 Wheeler notes that, under Superior Court Criminal
Rule 23(a), “[c]ases 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 added.) But Wheeler did not raise this argument on direct appeal
and thus it is barred under Rule 61(i)(3) unless he shows “[c]ause for relief from the
procedural default and . . . [p]rejudice from violation of . . . [his] rights.”
Wheeler makes no effort to show “cause and prejudice.” He attempts instead
to fold this claim into his ineffective-assistance-of-counsel claim. This fails for two
independent reasons. First, Wheeler did not cite the failure to secure a written waiver
as a performance deficiency in his motion for postconviction relief or related papers
in the Superior Court; hence, this argument is waived under Supreme Court Rule 8.48
Secondly, Wheeler ignores the fact that his trial counsel actually suggested to the
trial judge, immediately before the waiver colloquy, that “an actual waiver on
47 Opening Br. at 41. 48 Supr. Ct. R. 8 (“Only questions fairly presented to the trial court, may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”). 22 paper”49 might be appropriate. Wheeler does not explain why it was objectively
unreasonable for his trial counsel to refrain from pressing more fervently for a
written waiver when the trial judge shrugged off this suggestion. Nor does Wheeler
contend that, had he been asked to execute a written waiver form, he would have
changed his mind and retracted the answers he gave under oath to the trial judge
during the waiver colloquy. In short, Wheeler’s claim that he is entitled to a new
trial because of the absence of a written jury-trial waiver is without merit.
Despite its determination that Wheeler’s counsel’s advice passed muster
under Strickland’s performance prong—a determination that, standing alone, was
case dispositive—the Superior Court pressed on and considered the prejudice issue.
We do likewise for the purpose of clarifying the proper prejudice standard to apply
when pretrial waivers of important constitutional rights are involved.
Under Strickland’s prejudice standard, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.”50 Applied here—and, in the
Superior Court and at oral argument in this Court the State suggested it did apply—
49 App. to Opening Br. at A191. 50 Strickland, 466 U.S. at 694. 23 this standard would require Wheeler to show that, had Wheeler’s counsel not given
Wheeler deficient advice, he would have exercised his right to a jury trial, the result
of which would have been different than the bench trial that actually occurred.51
Wheeler argues, as he did below, that the Strickland prejudice standard does
not apply to a deficiently counseled jury-trial waiver. The correct standard,
according to Wheeler, was articulated by the United States Court of Appeals for the
Third Circuit in Vickers v. Superintendent Graterford SCI.52 Like this case, Vickers
involved a claim of ineffective assistance of counsel in connection with a jury-trial
waiver that was not evidenced by either a written or an oral waiver. Vickers’
counsel, who had inherited the case only weeks before trial, had “assumed there had
been a normal waiver at the bar and whatnot like that.”53 The court held that
“prevailing professional norms required and continue to require counsel in this
circumstance to verify, through a review of the record or an inquiry with the court
or prior counsel, that the client formally waived his jury trial right.”54 Counsel’s
failure to conform to this norm constituted deficient performance under Strickland,
so the court turned to the issue of prejudice.
51 The State’s answering brief appears to concede that the Vickers prejudice standard, discussed more fully next, applies in this case. 52 858 F.3d 841 (3d Cir. 2017). 53 Id. at 851. 54 Id. 24 The Court of Appeals first determined that Vickers’ counsel’s deficient
performance, under the circumstances, did not constitute a structural error and thus
that prejudice should not be presumed. In ascertaining the proper prejudice test, the
court looked to a trio of United States Supreme Court cases that explained the
appropriate inquiry in similar circumstances. In Hill v. Lockhart,55 which involved
a guilty plea that was the product of ineffective assistance, the Supreme Court did
not require a showing that the petitioner would not have been convicted had he gone
to trial instead of pleading. The proper inquiry was “whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.”56
In Roe v. Flores-Ortega57 and Lafler v. Cooper,58 the Supreme Court adopted
a similar approach. In Flores-Ortega, a case involving the petitioner’s forfeiture of
his right to appeal because of deficient advice, the Court held that, to establish
prejudice, the petitioner had to show that “but for counsel’s deficient conduct, he
would have appealed.”59 And in Lafler, where the performance took the form of
advice to reject a plea offer, the Court held that the prejudice inquiry must ask
whether, but for counsel’s ineffective assistance, the petitioner would have accepted
the guilty plea.
55 474 U.S. 52 (1985). 56 Id. at 59. 57 528 U.S. 470 (2000). 58 566 U.S. 156 (2012). 59 Flores-Ortega, 528 U.S. at 486. 25 The Vickers court aptly synthesized those United States Supreme Court
precedents:
Although acknowledging that the “[t]he goal of a just result is not divorced from the reliability of a conviction,” the Court in Lafler made explicit the principle underlying its decisions in Hill and Flores- Ortega—that when evaluating prejudice in the context of a pre-trial error that changed the nature of the subsequent proceedings, the “question is not the fairness or reliability of the trial but the fairness and regularity of the processes that preceded it, which caused the defendant to lose benefits he would have received in the ordinary course but for counsel’s ineffective assistance.”60
Reading Hill, Flores-Ortega, and Lafler together, the Vickers court was
persuaded that the Supreme Court had unquestionably redirected the focus of the
Strickland prejudice inquiry in the pretrial waiver context. Under these
circumstances, no longer is the inquiry directed to the likely outcome of the
defendant’s hypothetical trial. Instead, “where a defendant claims ineffective
assistance based on a pre-trial process that caused him to forfeit a constitutional
right, the proper prejudice inquiry is whether the defendant can demonstrate a
reasonable probability that, but for counsel’s ineffectiveness, he would have opted
to exercise that right.”61
In this case, the Superior Court noted that the parties took differing approaches
to the prejudice issue, the State suggesting that the traditional Strickland approach
60 Vickers, 858 F.3d at 856 (quoting Lafler, 566 U.S. at 169). 61 Id. at 857. 26 was preferable and Wheeler favoring the Vickers formulation. Rather than adopting
one approach or the other, though, the court separately evaluated Wheeler’s
prejudice claim under both standards and found it lacking under both. Pointing to
“overwhelming evidence to convict”62 and the trial judge’s comment when
announcing his verdict that the case “wasn’t close at all,”63 the court found that
Wheeler had not satisfied the traditional Strickland prejudice standard. The court
found further that the record did not establish that Wheeler would have chosen a jury
trial, but for his counsel’s purportedly erroneous description of how the rules of
evidence operate in a bench trial. Thus, Wheeler’s prejudice claim also failed under
Vickers.
In our view, the Superior Court’s findings of the absence of prejudice are
supported by the record. And that view holds under either of the prejudice rubrics
discussed above. The record establishes that Wheeler was an active participant in
his defense and that there were reasons other than counsel’s inartful explanation of
the rules of evidence that motivated Wheeler’s jury-trial waiver. And neither
Wheeler’s affidavit nor his evidentiary-hearing testimony establishes that his waiver
decision turned on his counsel’s comments concerning his ability to get inadmissible
62 Wheeler, 2022 WL 2134686, at *9. 63 App. to Opening Br. at A650. 27 evidence before the trial judge.64 In sum, the Superior Court did not abuse its
discretion by finding that Wheeler had not shown that he was prejudiced by his
counsel’s deficient performance.
That being said, we write further to answer the question our prior case law has
left unanswered. Here, we agree with Wheeler that the Third Circuit’s interpretation
in Vickers of the United States Supreme Court’s holdings in Hill, Flores-Ortega, and
Lafler is correct. When a criminal defendant waives an important constitutional trial
right because of the ineffective assistance of counsel, a defendant shows that he has
been prejudiced when he demonstrates a reasonable probability that he would have
exercised that right in the absence of counsel’s ineffective assistance. Wheeler did
not make that showing in this case.
IV
For the reasons set forth above, we affirm the Superior Court’s June 14, 2022
Memorandum Opinion and Order, denying Wheeler’s Amended Motion for
Postconviction Relief.
64 To be fair, Wheeler testified that his reason for “switching from jury [trial] to bench [trial] on the day of trial,” was “because . . . he told me that he was going to get some evidence in,” (see App. to Opening Br. at A952) a statement that could be read as checking this box. But we do not view this answer as being so clear, especially in light of the Superior Court’s other findings, that it mandates, without more, a finding of prejudice. 28