State v. Lambert ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, :
:
:
: ID No. 1410004532
v. :
:
:
MICHAEL E. LAMBERT, :
:
Defendant. :
:
:
:
Submitted: March 17, 2022
Decided: June 30, 2022
OPINION
Lindsay Taylor, Deputy Attorney General, Department of Justice, Georgetown,
Delaware, Attorney for the State.
Benjamin S. Gifford IV, Esquire, Law Office of Benjamin S. Gifford, Wilmington,
Delaware, Attorney for the Defendant.
Clark, R.J.
This decision addresses Defendant Michael Lambert’s motion for
postconviction relief. His motion requires the Court to examine the two issues that
generally arise in ineffective assistance of counsel claims: trial counsel’s
performance, and whether trial counsel’s allegedly deficient performance prejudiced
the defendant. In this case, the Court must also resolve an issue of first impression
when it considers the first of these two inquiries.
Prior to trial, Mr. Lambert’s trial counsel (“Trial Counsel”) diligently and
competently litigated a suppression issue. The Court denied the motion and Trial
Counsel sought to preserve his right to appeal that decision. Unlike in the federal
system and in many states, Delaware does not permit a defendant to enter a
conditional guilty plea to preserve appeal rights. At trial, Trial Counsel attempted
to work around this gap in Delaware practice. Namely, he attended Mr. Lambert’s
bench trial but did nothing to defend him. He declined to make an opening
statement, declined to cross-examine the State’s witnesses, made no objections,
presented no witnesses, and made no closing argument. While declining these
measures, he incorrectly believed that he was participating in a “stipulated trial.”
To the contrary, Trial Counsel sought the functional equivalent of a conditional
guilty plea to preserve Mr. Lambert’s appeal rights.
Here, concerns of judicial economy did not justify his approach. For the
reasons discussed below, Trial Counsel performed deficiently when he did not
provide Mr. Lambert a defense, and the Court must presume that those deficiencies
prejudiced Mr. Lambert. As a result, Trial Counsel’s representation deprived Mr.
Lambert of his Sixth Amendment Right to Counsel. Mr. Lambert’s motion for
postconviction relief must be GRANTED, and he is entitled to a new trial.
2
I. BACKGROUND
As in any postconviction motion, the procedural background drives as much
of the Court’s decision as the factual background. Before discussing the procedural
and factual background, however, the Court will first discuss the applicable law that
controls the Court’s decision.
A. Applicable Law
The Sixth Amendment to the United States Constitution, applied to Delaware
through the Fourteenth Amendment, guarantees that “[i]n all criminal prosecutions
the accused shall enjoy the right . . . to have the Assistance of Counsel for his
[defense].”1 The accused’s right to counsel is one of the most fundamental
components of the criminal justice system.2 It is the most pervasive because it
affects the defendant’s ability to assert all other available rights.3 Recognizing the
Right to Counsel’s importance, the United States Supreme Court has long held that
the Right includes the right to the effective assistance of counsel.4 If counsel
provides no actual assistance to the accused, then the constitutional guarantee has
been violated.5 The Delaware Supreme Court has recognized that this guarantee is
designed to both ensure fair trials, and, in a broader sense, to promote confidence in
the fairness of the criminal justice system.6
1
U.S. Const. amend. VI; see Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (holding that the
Sixth Amendment right to counsel in criminal proceedings applies to the states through the
Fourteenth Amendment).
2
Strickland v. Washington, 466 U.S. 668, 686 (1984) (citing McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)).
3
United States v. Cronic, 466 U.S. 648, 653 (1984); Urquhart v. State, 203 A.3d 719, 728 (Del.
2019).
4
Strickland, 466 U.S. at 686 (citing McMann, 397 U.S. at 771 n.14) (emphasis added); Cooke v.
State, 977 A.2d 803, 840 (Del. 2009).
5
Cronic, 466 U.S. at 654.
6
Cooke, 977 A.2d at 840 (citing Strickland, 466 U.S. at 686, 691-92).
3
The primary framework for evaluating ineffective assistance of counsel
claims comes from the United States Supreme Court’s decision in Strickland v.
Washington.7 In the Strickland decision, the Court established a two-part inquiry to
evaluate such claims. A defendant who asserts a claim of ineffective assistance of
counsel must show that: (1) counsel’s conduct fell below an objective standard of
reasonableness (the “performance prong”), and (2) there was a reasonable
probability that, but for trial counsel’s errors, the result of the proceeding would have
been different (the “prejudice prong”).8
Under the first Strickland prong, a review of an attorney’s performance must
be deferential. It requires that courts limit hindsight and evaluate the conduct from
counsel’s perspective at the time.9 The Strickland Court provided no specific
guidelines other than to instruct the lower courts to determine if counsel’s
performance was reasonable when compared to “prevailing professional norms.”10
When conducting the inquiry, a court must first presume that counsel performed his
or her role reasonably.11 A defendant must also overcome the presumption that,
under the circumstances, “the challenged action ‘might be considered sound trial
strategy.’”12 Thus, a defendant who raises a claim of ineffective assistance must
specifically identify exactly what action or omission by counsel fell outside the
scope of reasonable professional judgment.13 The Court must then determine
7
466 U.S. 668 (1984).
8
Id. at 688-94.
9
Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
10
Id. at 688; see Meredith J. Duncan & George Butler, Lafler and Frye: Strickland Revitalized?
2012 WL 6620460, 25 Fed. Sent’g Rep. 144 (Dec. 2012) (examining Strickland’s performance
prong and noting that the Strickland Court refused to provide specific guidelines for what is
“reasonably effective assistance”).
11
Strickland, 466 U.S. at 690.
12
Id. at 689 (emphasis added) (quoting Michel, 350 U.S. at 101 (1955)).
13
Id. at 690.
4
“whether, in light of all of the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.”14
With respect to the prejudice prong, the Strickland Court explained that “an
error by counsel, even if professionally unreasonable, does not warrant setting aside
the criminal judgment if the error had no effect.”15 As a result, any deficiency in
counsel’s performance must prejudice the defense before it becomes ineffective
assistance.16 Prejudice, in Strickland terms, occurs when the attorney’s errors create
a reasonable probability that the outcome would have been different but for
counsel’s errors.17
The United States Supreme Court issued its decision in United States v.
Cronic18 on the same day it issued the Strickland decision. In Cronic, the Supreme
Court articulated three limited exceptions that excuse a defendant from
demonstrating actual prejudice. As the Court recognized in Cronic, these three
scenarios include “circumstances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjustified.”19 If one of these
three exceptions applies, prejudice is presumed. Then, the defendant is relieved of
his or her obligation to demonstrate a fair probability that the outcome would have
been different but for the error.
The first Cronic exception arises when there is a complete denial of counsel
at a critical stage of the criminal process.20 A “critical stage” of the process includes
one of many pretrial and post-trial stages through sentencing.21 A non-exhaustive
14
Id.
15
Id. at 691.
16
Id. at 692.
17
Martin v. Rose, 744 F.2d 1245, 1250 (6th Cir. 1984) (citing Strickland, 466 U.S. at 692).
18
466 U.S. 648 (1984).
19
Id. at 658.
20
Id. at 659; Urquhart, 203 A.3d at 729.
21
Urquhart, 203 A.3d at 729 n.57. See Reed v. State, 258 A.3d 807, 821-22 (Del. 2021)
(explaining that the right to effective assistance of counsel is not limited only to the trial, but
5
list of such stages include arraignments, post-indictment identification lineups,
preliminary hearings, the plea bargaining process, trials, and sentencings.22 The
second exception applies when “counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.”23 The third exception provides for a
presumption of prejudice when “the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate without inquiry into the actual conduct of the trial.”24
B. Allegations Against Mr. Lambert
The Delaware State Police (“DSP” ) arrested Mr. Lambert after its officers
received a report from the Anne Arundel County Sheriff’s Office (the “Sheriff”).
The Sheriff reported that Mr. Lambert had robbed and shot an individual in Anne
Arundel County, Maryland. Mr. Lambert then attempted to carjack a vehicle, was
unsuccessful, but nevertheless fired his handgun at the vehicle’s driver as she
escaped. He then successfully carjacked another vehicle at gunpoint. The Sheriff
described the stolen vehicle and reported that when Mr. Lambert fled Maryland, he
travelled directly to his residence in Houston, Delaware.
After receiving this information, DSP surveilled the Houston residence.
Outside the home, the police observed a vehicle matching the make, model, and
color of the one reported stolen from the Anne Arundel area. The vehicle at the
residence had a partially covered Maryland license plate. Several characters on the
“applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a
proceeding in which defendants cannot be presumed to make critical decisions without counsel’s
advice”) (quoting Lafler v. Cooper, 566 U.S. 156, 165 (2012)).
22
See Brian R. Means, Proceedings Where There is a Constitutional Right to Counsel,
Postconviction Remedies § 35:2 (providing a non-exhaustive list of stages found by caselaw to be
“critical” for Sixth Amendment purposes and where the Right to Counsel attaches).
23
Urquhart, 203 A.3d at 729 (quoting Cronic, 466 U.S. at 659).
24
Reed, 258 A.3d at 825 (quoting Cronic, 466 U.S. at 659-60).
6
plate were visible. The visible characters matched corresponding characters found
on the stolen vehicle’s plate.
DSP then surrounded the residence to ensure that Mr. Lambert did not escape.
At that point, DSP detectives applied for a search warrant through the videophone
process with Justice of the Peace Court No. 2 in Rehoboth. As they applied for the
warrant, an individual left the residence. DSP immediately apprehended that
individual and he told the officers that Mr. Lambert remained inside. Mr. Lambert
then exited the residence at the request of the police and DSP secured the premises
while they awaited the warrant. Their search eventually recovered a firearm and
ammunition that Mr. Lambert, a prior convicted felon, admitted in a videotaped
confession that he possessed. The State then charged him with Possession of a
Firearm by a Person Prohibited, Possession of Ammunition by a Person Prohibited,
and Receiving Stolen Property.
C. Mr. Lambert’s Motion to Suppress
Prior to trial, Trial Counsel filed a motion to suppress the physical evidence
that DSP had seized. He also sought to exclude Mr. Lambert’s confession as fruit
of the poisonous tree. Trial Counsel based the motion on the premise that DSP had
executed the search before the Justice of the Peace Court issued the warrant. In the
motion, Trial Counsel cited helpful authority to support his motion and effectively
structured the motion’s factual allegations.
The Court then held a pretrial evidentiary hearing. At the hearing, the State
presented four DSP witnesses: Sergeant Skinner, Detective Vernon, Detective
O’Leary, and Detective Daddio. On direct examination, the witnesses’ combined
testimonies described the videophone warrant application process. They also
described (1) DSP’s efforts to secure the premises while they waited for the court to
7
approve the warrant, (2) the timing and manner of warrant execution, and (3) their
search for and seizure of the challenged evidence.25
Trial Counsel’s hearing strategy included challenging the State’s position that
DSP had secured the warrant before the search.26 He effectively cross-examined
the witnesses based upon discrepancies in the facsimile timestamps found on the
documents.27 After the hearing, Trial Counsel submitted supplemental written
argument and contended that DSP failed to meet the statutory warrant application
requirements of 11 Del. C. § 2306.28 Notwithstanding his vigorous and effective
advocacy, the Court denied the motion for the reasons explained in its June 2015
decision.29
D. Mr. Lambert’s Bench Trial and Sentencing
After the Court denied the suppression motion, Mr. Lambert rejected the
State’s plea offer and proceeded to trial. On the morning of trial, the State entered
a nolle prosequi on the single charge of Receiving Stolen Property.30 Trial Counsel
then told the Court that Mr. Lambert wished to proceed with a partially stipulated
bench trial. After a written waiver and the appropriate colloquy, Mr. Lambert
waived his right to a jury trial. Trial Counsel next informed the Court that Mr.
25
Mot. to Suppress Tr., at 4,13, 29, 38, and 54.
26
Id. at 21-24.
27
Id. at 20, 26, 34, 49, and 61.
28
See Supplemental Argument at 1 (arguing that the application for the search warrant could not
have been properly executed before the search was initiated because the affiant did not sign it
before faxing it to the JP court in violation of 11 Del. C. § 2306). Trial Counsel also challenged
certain exceptions to the warrant requirement argued by the State, including the inevitable
discovery doctrine. The Court ultimately relied upon that exception when finding the search to
be lawful. Id. at 5-6.
29
State v. Lambert, 2015 WL 3897810, at *7 (Del. Super. June 22, 2015), aff’d, 149 A.3d 227,
2016 WL 5874837, at *2 (Del. Oct. 7, 2016) (TABLE).
30
Bench Trial Tr. at 10-11. There is no indication in the trial record or in the postconviction record
that the State’s decision to dismiss the charge was based upon anything other than the State’s
assessment that there was insufficient evidence to proceed on that charge.
8
Lambert stipulated to two elements of the offenses charged by the State. He first
stipulated that the handgun seized during the search was a firearm as defined by 11
Del. C. § 222(13).31 Second, he stipulated that on the date of the alleged offense, he
was prohibited from purchasing, owning, possessing, or controlling a firearm or
ammunition because of his felony record.32 Mr. Lambert did not stipulate, however,
to possessing the firearm or the ammunition.
Based upon Mr. Lambert’s stipulation to certain elements, the Court
conducted the necessary additional colloquies.33 Trial Counsel, however, did not
explain to the Court that he intended to offer no defense at trial. Accordingly, the
Court did not perform a guilty plea colloquy or alternatively consider what colloquy
would be necessary to confirm whether Mr. Lambert understood Trial Counsel’s
intended strategy or if he consented to it.
As the trial began, Trial Counsel waived his opening statement. During the
State’s case in chief, the State introduced testimony from two witnesses that Trial
Counsel did not cross-examine. The State also moved Mr. Lambert’s videotaped
confession and the firearm and ammunition into evidence without objections.
Furthermore, Trial Counsel declined to cross-examine the State’s witnesses. After
the State rested, Trial Counsel introduced no evidence on Mr. Lambert’s behalf.
Then, after the State presented its closing argument, Trial Counsel waived the
opportunity to address the Court in closing. After considering the evidence and the
State’s argument, the Court found Mr. Lambert guilty of the two charges.
At sentencing, the State moved to declare Mr. Lambert a habitual offender
and the Court granted the request as unopposed.34 Unlike at trial, during sentencing,
31
Id. at 7.
32
Id.
33
Id. at 6-9.
34
Sent’g Tr. at 2.
9
Trial Counsel advocated for Mr. Lambert. He urged the Court to find and apply
mitigating factors and requested that the Court sentence Mr. Lambert to the
minimum mandatory sentence which included fifteen years of incarceration.35 After
considering the State’s position, Mr. Lambert’s position, and the presentence
investigation, the Court sentenced Mr. Lambert to sixteen years of incarceration,
followed by decreasing levels of probation.
Mr. Lambert then appealed his conviction, sentence, and the denial of the
motion to suppress to the Delaware Supreme Court. The Supreme Court affirmed
the conviction and held that the Superior Court had properly denied Mr. Lambert’s
motion.36
E. The Parties’ Postconviction Arguments
After the Supreme Court denied Mr. Lambert’s direct appeal, he filed a pro
se Rule 61 Motion. He alleged ineffective assistance of counsel, asserted several
grounds for relief, and requested that the Court appoint him postconviction
counsel.37 The Court appointed counsel and then transferred the motion to the
Commissioner for her consideration pursuant to 10 Del. C. § 512(b) and Superior
Court Criminal Rule 62.38
From the outset, Mr. Lambert’s arguments focused on the United States
Supreme Court’s decision in Cronic. First, he contended that because Trial Counsel
35
Id. at 3-4.
36
Lambert, 2016 WL 5874837, at *2.
37
A motion for postconviction relief must be filed within one year after the judgment of conviction
is final. Super. Ct. Crim. R. 61(i)(1). Mr. Lambert filed his initial Rule 61 motion on February 9,
2017, within one year of his convictions being confirmed by the Delaware Supreme Court.
Accordingly, Mr. Lambert’s motion was timely.
38
Order of Reference to Comm’r. See 10 Del. C. § 512(b)(1) (providing “[a] judge may designate
a Commissioner to conduct hearings . . . and submit to a judge of the Court proposed findings of
fact and recommendations for the disposition . . . of applications for postconviction relief . . . .”);
Super. Ct. Crim. R. 62(a)(5) (providing Commissioners with the power to conduct case-dispositive
hearings, including hearings involving postconviction relief pursuant to Super. Ct. Crim. R. 61).
10
offered him no defense at his trial, Trial Counsel performed deficiently. He then
turned his focus to the prejudice prong and argued that showing prejudice should be
excused pursuant to Cronic. In arguing that, he relied on the second Cronic
exception: where counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.39
After the Commissioner received the referral, she ordered Trial Counsel to
submit an affidavit to respond to Mr. Lambert’s allegations. Trial Counsel’s
affidavit provided only a vague explanation of his trial strategy, however.40
Namely, he merely recited that because of “the nature of the evidence and an
intended course of action” he decided to stay silent at trial.41 In the affidavit, he
also recited that he discussed the decision to conduct a bench trial with Mr. Lambert
so he could preserve Mr. Lambert’s right to appeal the Court’s suppression
decision.42 The affidavit provided no other justification for Trial Counsel’s decision
to remain silent throughout the trial. Nor did it address the extent to which Mr.
Lambert consented to a trial where his counsel provided no defense.
In response, the State contended that Trial Counsel’s effective presentation of
the suppression issue tested the State’s case adequately, which made Cronic
inapplicable.43 Furthermore, the State contended that, even if Trial Counsel had
committed errors at trial, the errors could not have caused prejudice to Mr. Lambert
because the State presented overwhelming evidence of his guilt.
After considering the parties’ arguments and the record, the Commissioner
issued her Report and recommended that the Court deny Mr. Lambert’s Rule 61
Motion. In her Report, the Commissioner applied the procedural bar of Superior
39
Id. at 659.
40
Aff. of Trial Counsel ⁋ 2.
41
Id.
42
Id. ⁋ 4 (emphasis added).
43
State’s Resp. to Mot. for Postconviction Relief at 5 (emphasis added).
11
Court Criminal Rule 61(i)(3).44 Alternatively, on substantive grounds, she found (1)
that Trial Counsel had competently represented Mr. Lambert, and (2) that Mr.
Lambert could demonstrate no concrete prejudice.45 She relied heavily on Mr.
Lambert’s videotaped confession when recommending that the Court deny the
motion. When doing so, she applied what she described as common sense and
reasoned that granting a new trial would waste time and resources because of the
overwhelming evidence that supported Mr. Lambert’s convictions.46
Mr. Lambert then appealed the Report. He initially attacked it on four
grounds. First, he correctly contended, and the State has conceded, that the
Commissioner incorrectly applied the procedural bar of Rule 61(i)(3) to his claim.
The other three grounds challenged the Report’s substantive findings and are
appropriately considered as two that address the Strickland prongs. First, he
contended that the Commissioner erred because Trial Counsel performed
unreasonably when he remained silent throughout the trial. Second, he contended
that the Commissioner erred when she declined to apply the second Cronic exception
to excuse him from demonstrating prejudice.
After the State received Mr. Lambert’s appeal, it declined to file a response;
instead, it explained that it remained content to rely upon the arguments it had
presented to the Commissioner. After the Court recognized that Mr. Lambert’s
44
Comm’r. Rep. at 13. See Super. Ct. Crim. R. 61(i)(3) (providing that any ground for relief not
asserted in the proceedings leading to the judgement of conviction is barred unless the movant
shows cause for relief and prejudice from violation of the movants rights). The State concedes
that no procedural bar exists in this case. Mr. Lambert’s motion alleged ineffective assistance of
counsel for the first time during this postconviction motion. The Delaware Supreme Court has
recently held that such claims may not be brought during trial or on direct appeal and are therefore
not subject to the procedural bar contained in Super. Ct. Crim. R. 61(i)(3). State v. Harris, 2021
WL 4281303, at *2 (Del. Super. Sept. 21, 2021) (citing Green v. State, 238 A.3d 160, 175 (Del.
2020)).
45
Comm’r. Rep. at 12.
46
Id.12
objections had potential merit, however, the Court requested that the State file a
response as described more fully below.47
F. The Court’s Decision to Hold a Rule 61 Evidentiary Hearing
The Court agreed with Mr. Lambert that the Report, in large part, did not
address certain substantive issues. As to Cronic, his objection focused only on the
second exception: again, where “counsel entirely fails to subject the prosecution’s
case to meaningful adversarial testing.”48 He contended that this second exception
excused him from demonstrating a reasonable probability that the result of his trial
would have been different but for Trial Counsel’s errors.
After reviewing the Report and Mr. Lambert’s objections, the Court
recognized that the Report did not fully explain why the Commissioner did not apply
the Cronic framework. The Report also failed to consider another important issue.
Namely, after the parties had concluded their briefing for the Commissioner, the
Delaware Supreme Court issued its decision in Urquhart v. State.49 There, our
Supreme Court broadly interpreted Cronic’s first exception: a “complete denial of
counsel at a critical stage of the proceeding.”50 When it addressed the first
exception, it expanded it to include the constructive complete denial of counsel.51
Because the Urquhart decision was issued after the parties finished their briefing,
neither they nor the Commissioner addressed the decision’s importance.52
47
Court’s Letter Order at 2.
48
Cronic, 466 U.S. at 659 (emphasis added).
49
203 A.3d 719 (Del. 2019).
50
Id. at 730 (emphasis added).
51
Id. at 732.
52
On January 24, 2019, the Delaware Supreme Court issued its decision in Urquhart v. State. Mr.
Lambert had already filed his Reply in the Commissioner’s referred proceedings on January 9,
2019. All initial briefing before the Commissioner had concluded before the Supreme Court issued
its decision. Understandably, neither counsel nor the Commissioner addressed the issues raised in
the Urquhart decision during that part of the postconviction proceedings.
13
Because of the potential importance of the Urquhart decision to Mr.
Lambert’s case, the Court asked the parties to address it. The Court also asked for
their positions regarding when silence at trial can constitute an effective strategy.
Specifically, by letter, the Court requested that the parties address the following:
(1) the applicability, if any, of the framework set forth in Urquhart v.
State, (2) an analysis of a line of Cronic related cases regarding the
issue of whether “silence can constitute trial strategy . . .”53 and (3) in
light of the lack of detail in trial counsel’s affidavit, whether an
evidentiary hearing is appropriate to evaluate trial counsel’s strategy
and the extent to which [that strategy] was disclosed to and agreed upon
by Mr. Lambert.54
In the State’s written argument, it contended that the framework provided in
Urquhart was informative but factually distinguishable, which in turn made Cronic
inapplicable. Second, and independently, the State circled back to the first
Strickland prong and contended that because of the weight of the evidence, Trial
Counsel’s silence was a reasonable strategy because he successfully preserved Mr.
Lambert’s right to appeal. The State contended that Trial Counsel could not have
changed the outcome regardless of his efforts. Despite the State’s argument against
postconviction relief, it nevertheless believed that an evidentiary hearing would be
appropriate because Trial Counsel’s affidavit was so vague.
Mr. Lambert also requested an evidentiary hearing. He contended that the
Urquhart decision required the Court to apply Cronic to his case. He did not address
the first exception, though; rather, he seemed to maintain his position and read the
Urquhart decision as if it turned on the second exception. Finally, when Mr.
53
See e.g., Walker v. State, 892 A.2d 547, 560 (Md. 2006) (holding that trial counsel’s strategy to
not meaningfully participate in a trial in absentia held after defendant absconded and failed to
appear for trial did not constitute a complete failure to subject the prosecution’s case, and therefore
Cronic’s presumption of prejudice, as an element of the defendant’s ineffective assistance of
counsel claim, did not apply).
54
Court’s Letter Order at 2.
14
Lambert circled back to address the performance prong of the inquiry, he contended
that Trial Counsel’s “strategy” was unreasonable because Mr. Lambert received
nothing in exchange for a complete surrender at trial.
The Court then held an evidentiary hearing to examine (1) counsel’s strategy
at trial, (2) the extent to which Trial Counsel disclosed that strategy to Mr. Lambert,
and (3) whether Mr. Lambert consented to it.55 At the hearing, Trial Counsel
testified that he had engaged in what he considered to be a “stipulated trial” to
preserve Mr. Lambert’s right to appeal the suppression decision.56 Trial Counsel
could not recall a conversation with Mr. Lambert about his decision to present no
defense at trial, or whether Mr. Lambert agreed to it.57 Trial Counsel did not know
the proper procedure for a stipulated trial or the best route to preserve pretrial issues
for appeal.58 He testified that he had not conducted such a “stipulated trial” before
Mr. Lambert’s case, and has not since.59
Trial Counsel further acknowledged that a jury trial would have equally
maintained his right to appeal the suppression decision.60 Likewise, he
acknowledged that not presenting a defense, once the trial was underway, did
nothing to advance Mr. Lambert’s right to appeal.61 Finally, Trial Counsel could
not identify any expected benefit for Mr. Lambert for this strategy, on the front end.62
In hindsight, he pointedly acknowledged that Mr. Lambert received no benefit for it,
on the tail end.63
55
Post-Trial Evidentiary Hearing Tr. at 7.
56
Id. at 9:6-7.
57
Id. at 7:8-9.
58
Id. at 8.
59
Id. at 7:17.
60
Id. at 29:1.
61
Id. at 31:13.
62
Id.
63
Id.
15
At the conclusion of the hearing, the Court recognized that both parties had
misunderstood the Court’s inquiries regarding Urquhart. As a result, neither party
was prepared to address whether the first Cronic exception applied to Mr. Lambert’s
case. Rather, they requested additional time to address the Urquhart decision in
post-hearing briefing.
G. The Parties’ Post-Hearing Positions
After the hearing, Mr. Lambert filed his post-hearing brief. In it, he maintains
his primary focus on the second Cronic exception. Nevertheless, he now includes
argument that the first exception also applies under Urquhart. Under either
exception, he contends that he need not demonstrate prejudice.
After Mr. Lambert filed his post-hearing brief, the State filed a letter response
and changed its position. The State now concedes that Trial Counsel ineffectively
represented Mr. Lambert and that prejudice must be presumed because of the
Urquhart decision. The State now also concedes that a new trial is necessary.
II. SCOPE OF REVIEW
Pursuant to Superior Court Criminal Rule 62(a)(5), a Superior Court
commissioner is permitted to conduct hearings, submit proposed findings of fact,
and make recommendations for the disposition of a postconviction motion.64 In
what the Rule describes as an appeal of the Report, a reviewing judge “may accept,
reject, or modify, in whole or in part, the findings of fact or recommendations made
by the commissioner.”65 The Rule further provides that a party may object to the
commissioner’s recommendations.66 Upon an appeal, the reviewing judge conducts
a de novo review of the record when he or she evaluates the contested portions of
64
Super. Ct. Crim. R. 62(a)(5).
65
Id. (5)(ii).
66
Id.
16
the commissioner’s report.67 In this case, Mr. Lambert objects to both the Report’s
procedural and substantive recommendation.
III. ANALYSIS
At the outset, the Report incorrectly recommends that the Court apply a
procedural bar to Mr. Lambert’s motion.68 Here, as the State correctly concedes, no
procedural bar applies. Accordingly, the Court must fully consider Mr. Lambert’s
substantive claims.
As to his substantive claims, the Court initially addresses the first Strickland
prong to determine whether Trial Counsel performed deficiently. If Mr. Lambert
meets his burden regarding the first prong, he must then demonstrate one of two
alternatives to prevail. He will need to show either that (1) Trial Counsel’s deficient
performance prejudiced him, or (2) that one of the three Cronic exceptions excuses
him from demonstrating prejudice.69
A. Trial Counsel’s (1) attempt to execute the functional equivalent of
a conditional guilty plea to protect Mr. Lambert’s appeal rights, and (2)
his misunderstanding regarding the appropriate procedure for a
stipulated trial constituted deficient performance.
The Court starts its analysis with the performance prong. When courts
consider the two Strickland prongs, they frequently start with the second one first:
the prejudice prong. That often simplifies the analysis because a defendant must
meet both prongs to prevail.70 In this case, as the Court will explain, Mr. Lambert
67
Id. (5)(iv).
68
See Harris, 2021 WL 4281303, at *2 (explaining that a defendant may not raise ineffective
assistance of counsel claims on direct appeal and declining to apply the procedural bar in such
circumstances) (citing Green v. State, 238 A.3d 160, 175 (Del. 2020)).
69
Strickland, 466 U.S. at 697; Cronic, 466 U.S. at 659-60.
70
Strickland, 466 U.S. at 697.
17
meets his burden as to both prongs. As a result, the Court will address them
sequentially.
As to the performance prong, trial tactics may fall below the line that
delineates effective assistance of counsel if those tactics were outside the wide range
of professionally competent assistance.71 To determine what is professionally
competent assistance, the Court recognizes the primary goal of effective
representation – to ensure the integrity of the adversarial process.72
With that goal in mind, Trial Counsel’s decision to remain silent throughout
Mr. Lambert’s trial did not constitute reasonable professional judgment.73 Here, an
element of the offense – possession – remained a factual issue for trial. Although
the State presented significant evidence that supported his convictions, including
Mr. Lambert’s videotaped confession, Trial Counsel retained the obligation to
advocate for his client in a reasonably professional manner. That obligation
included, at a minimum, testing the State’s case at trial. Trial Counsel fell short
because he did not either step forward with some defense at trial or inform the Court
that his client wished to plead guilty.
The Court fully appreciates that Trial Counsel’s primary goal was to preserve
his client’s appeal rights. His silence as a strategy approach, however, attempted
the functional equivalent of a guilty plea, albeit a conditional one that preserved
those rights. When Trial Counsel failed to notify the Court what he planned to do,
he prevented the Court from confirming that Mr. Lambert understood the rights that
he was surrendering. Trial Counsel’s choice also provided the Court no opportunity
71
Id. at 690; Martin, 744 F.2d at 1249.
72
Martin, 744 F.2d at 1250.
73
Strickland, 466 U.S. at 690.
18
to determine if Mr. Lambert consented to relinquishing his Sixth Amendment Right
to Counsel at trial.74
By way of further explanation, Delaware Superior Court Criminal Rules do
not permit conditional guilty pleas. In contrast, Federal Rule of Criminal Procedure
11(a)(2) provides, in relevant part, that “[w]ith the consent of the court and the
government, a defendant may enter a conditional plea . . . reserving in writing the
right to have an appellate court review an adverse determination of a specified
pretrial motion.”75 Delaware’s version of Rule 11, on the other hand, does more than
simply fail to provide for such a process. It tellingly provides that the conditional
plea subsection, that would have established such a process, is “omitted.”76
Were the Court to include a conditional guilty plea process in the courts’
criminal rules, it could benefit judicial economy in some cases. Of course, deciding
whether Superior Court criminal practice should contain such a procedure is outside
the scope of this decision. Reviewing the decision to exclude such a process would
require the consideration of long lists of pros and cons.77 There is an obvious
internal inconsistency, however, where the State is permitted to conditionally
dismiss a case to appeal an adverse pretrial suppression decision pursuant to 10 Del.
C. § 9902, but a defendant is permitted no similar mechanism.78
74
During the postconviction evidentiary hearing, Trial Counsel could not recall to what extent, if
any, he discussed with Mr. Lambert about proceeding in this manner. Post-Trial Evidentiary
Hearing Tr. at 7:6-9.
75
Fed. R. Crim. P. 11(a)(2).
76
Super. Ct. Crim. R. 11(a)(2).
77
See Wayne R. LaFave, et al., Conditional Pleas, 5 Crim. Proc. § 21.6(b) (4th ed. 2021)
(recognizing the benefits of such a rule which prevent the waste of time, money, and other
resources, and the major arguments against it which include increasing appellate litigation, that it
militates against finality, harms the integrity of appellate review because of constricted records,
and forces courts to decide constitutional questions that could otherwise be avoided).
78
See 10 Del. C. § 9902(b)-(c) (providing that “[w]hen any order is entered before trial in any
court suppressing or excluding substantial and material evidence, the court, upon certification by
the [State] that the evidence is essential to the prosecution of the case, shall dismiss the complaint,
indictment, or information, or any count thereof to the proof of which the evidence suppressed or
19
Notwithstanding the question of whether such a practice should be available,
one is not. Here, Trial Counsel’s motivations were well-meaning, and he intended
to save the resources of the Court and the parties. Pointedly, Mr. Lambert did not
have a strong trial defense available after the Court had denied his suppression
motion. Nevertheless, Delaware criminal practice provides no mechanism that
permits what Trial Counsel sought – the constructive equivalent of a conditional
guilty plea. Once Mr. Lambert’s trial began, Trial Counsel had the obligation to
meet the Sixth Amendment’s floor for reasonable performance. At trial, his
performance fell below that benchmark.
In addition to attempting an inappropriate workaround of a nonexistent
practice, Trial Counsel also misunderstood the nature of a stipulated trial. That
misunderstanding also rose to the level of a deficiency in Strickland terms. Notably,
even properly constructed stipulated trials can create procedural and substantive
problems. There is no one-size-fits-all definition of a stipulated trial. They are
frowned upon in some jurisdictions because confusion often arises over the subjects
of the stipulations. Such uncertainty, even in the best of circumstances, makes it
difficult for a defense attorney and the court to properly advise a defendant about the
rights that he or she surrenders.79
Despite such potential pitfalls, there are acceptable “stipulated trial” processes
that provide adequate safeguards. For instance, defendants who are terminated from
the Court’s drug diversion program face such a proceeding. In diversion cases, the
excluded is essential . . . . The State shall have an absolute right of appeal to an appellate court
from an order entered pursuant to subsection (b) . . . and if the appellate court . . . shall reverse the
dismissal, the defendant may be subjected to trial.”)
79
See Commonwealth v. Gomez, 104 N.E.3d 636, 643-44 (Mass. 2018) (discussing that stipulated
evidence trials are incapable of supporting a conviction unless a comprehensive colloquy itemizing
the rights the defendant is surrendering and confirming that the defendant understands the
significance of the rights he or she gives up and also noting that stipulated trials are rife with
procedural pitfalls).
20
Department of Justice refers a defendant to the program. In exchange, the defendant
consents to a later “stipulated trial” if he or she does not successfully complete the
program.80 If the defendant does not graduate, he or she proceeds to trial based
only upon the facts alleged in the police report.81 Before a defendant enters the
program, he or she must waive the right to a jury trial, waive certain appeal rights,
and consent to this process after a Court-conducted colloquy. Finally, an attorney
who recommends such a process obtains a considerable benefit for the defendant –
the State’s agreement to dismiss the pending charges if the defendant graduates.82
Contrasting Trial Counsel’s misunderstanding of the structure of a stipulated
trial with the stipulated trial in the diversion program helps to illustrate why Trial
Counsel’s decision was unreasonable. Namely, Trial Counsel obtained no benefit
for Mr. Lambert by remaining silent throughout the trial. Furthermore, the record
contains no evidence that Mr. Lambert understood the process or consented to it.
Finally, Trial Counsel’s choice to remain silent and failure to inform the Court of his
intention to present no defense prevented the Court from performing an appropriate
colloquy. All lie in contrast to the elements present in an acceptable stipulated trial.
Although Trial Counsel’s silence throughout the trial was unreasonable, a
portion of the stipulated trial in this case was appropriate. Namely, as in Mr.
Lambert’s case, parties in a criminal case may stipulate to certain facts, or even to
an element or elements of an offense.83 A defendant who agrees to such a process
80
Brown v. State, 2017 WL 89059, at *5 (Del. Super. Jan. 9, 2017), aff’d, 170 A.3d 148, 2017 WL
3573788 (Del. Aug. 17, 2017) (TABLE). See e.g., Delaware Superior Court, A Participants Guild/
Handbook to the Drug Court Diversion Program, at 18 (2015),
https://courts.delaware.gov/Superior/pdf/drug court participants handbook english 2015.pdf
(explaining that the participant engages in a “stipulated trial” upon termination because the
participant waived his or her trial rights by voluntarily entering the program).
81
Robinson v. State, 744 A.2d 988, 1999 WL 1319147, at *1 n.2 (Del. Dec. 17, 1999) (TABLE).
82
Tusio v. State, 1997 WL 366850, at *1 (Del. Super. Mar. 20, 1997).
83
United States v. Muse, 83 F.3d 672, 678 (4th Cir. 1996). See Wayne R. LaFave, et al., Trial on
Stipulated Facts, 5 Crim. Proc. § 21.6(c) (4th ed. 2021) (explaining the use of trials on stipulated
21
waives only the requirement that the State produce evidence to establish the
stipulated fact or element beyond a reasonable doubt.84 Such stipulations present no
difficulties in postconviction analysis because the defendant received at least some
benefit from the decision and counsel and the court confirm his or her decision to
participate in the process.
Trial Counsel sought no benefit for Mr. Lambert when he chose this course of
conduct, which further contributed to its unreasonableness. A permissible
stipulation requires some mutuality of benefit. Namely, the State may receive a
benefit because (1) the stipulation relieves the State of the burden to produce
evidence as to the fact or element, and (2) the defendant can no longer argue that the
evidence as to that fact or element is insufficient.85 On the other hand, a defendant
may also receive a benefit that could include, inter alia, the dismissal of other
charges as consideration, an agreement by the State for a favorable sentencing
recommendation in the event of a conviction, or the ability to minimize the
detrimental impact of prejudicial evidence on the trier of fact.86 Mutual benefit may
also flow as a result of professional cooperation between counsel where they seek to
avoid wasting time and resources and where, in defense counsel’s professional
judgment, the defendant suffers no harm.
facts and collecting cases using that method); John Burns, Stipulated Trials on the Minutes, 4A Ia.
Prac. Crim. Proc. § 16:3 (2022 ed.) (explaining that in a stipulated trial, the defendant waives a
jury trial and stipulates to a portion of the allegations).
84
Muse, 83 F.3d at 679.
85
Id. United States v. Reedy, 990 F.2d 167, 169 (4th Cir. 1993).
86
See Adams v. Peterson, 968 F.2d 835, 842 (9th Cir. 1992) (recognizing the variety of strategic
reasons for proceeding by a trial on stipulated facts, ranging from preservation of issues to
attempting to mitigate sentencing by acceptance of responsibility, or by controlling the evidence
presented). See also State v. Miller, 2017 WL 1969780, at *2 (Del. Super. May 11, 2017)
(recognizing that “[i]n exchange for [the defendant’s] willingness to proceed with a stipulated
bench trial, the State entered a nolle prosequi as to [the remaining charges].”) (emphasis added).
22
On balance, an appropriate partially stipulated trial differs significantly from
Trial Counsel’s unilateral decision to not defend Mr. Lambert at his trial. Here,
there was no “stipulation” in Mr. Lambert’s case that obligated Trial Counsel to
remain silent, and Mr. Lambert received no benefit for it. Trial Counsel’s failure to
provide a defense to Mr. Lambert at trial was not the result of reasonable professional
judgment.
B. Mr. Lambert need not demonstrate prejudice to prevail because the
first Cronic exception applies.
Mr. Lambert focused primarily on the second Cronic exception throughout
the postconviction proceedings; he contended that his attorney did not put the
prosecution’s case to a meaningful adversarial test. Here, the first Cronic exception
controls the prejudice inquiry, however. It controls because of the Delaware
Supreme Court’s recent decision in Urquhart v. State.87
Nevertheless, because the parties primarily addressed the second Cronic
exception throughout their briefing, the Court will discuss it first. That Cronic
exception requires the Court to address trial counsel’s errors when assessed against
the State’s case, as a whole.88 When the Court considers Mr. Lambert’s case in its
entirety, it recognizes that Trial Counsel advocated well for Mr. Lambert during
different phases of the case. For instance, Trial Counsel made a strong showing for
Mr. Lambert when presenting his suppression motion. Those efforts advanced Mr.
Lambert’s case, and in turn, significantly tested the State’s case. Trial Counsel also
advocated well for Mr. Lambert at sentencing. His representation at that stage
provided further benefit to Mr. Lambert and a further test of the State’s case.
87
203 A.3d 719 (Del. 2019).
88
Bell v. Cone, 535 U.S. 685, 697 (2002) (emphasis added).
23
Although Trial Counsel unreasonably declined to participate at Mr. Lambert’s trial,
he also preserved Mr. Lambert’s right to appeal the suppression decision.
Because Trial Counsel advocated for his client at certain points in the case
and put the State’s case to a meaningful adversarial test at those points, there is a
reasonable argument that he put the State’s case to a meaningful test. On the other
hand, Mr. Lambert cites some persuasive authority to support applying the second
Cronic exception.89
Mandatory authority does not support Mr. Lambert’s position regarding the
second exception. Namely, the United States Supreme Court has not elaborated
upon the second exception since its decision in Bell v. Cone.90 When it did, it
significantly narrowed it in application. In Cone, the defendant alleged ineffective
assistance because his trial attorney presented no mitigating evidence and made no
closing argument during the penalty phase of a capital case.91 Counsel did, however,
cross-examine state witnesses and gave an opening statement during that phase.92
The defendant, therefore, challenged his attorney’s performance only at “specific
points” during the proceeding.93 As a result, the Court held that Cronic’s second
exception did not apply. Rather, the Court limited its application to only where the
attorney’s failure is complete with respect to the entire proceeding, as opposed to
89
See Martin, 744 F.2d at 1250 (finding a presumption of prejudice, in a decision issued eighteen
years before the United States Supreme Court’s decision in Cone, where the petitioner’s attorney
refused to participate in any aspect of the trial after several pretrial motions had been denied, and
as a result, the petitioner was unable to subject the government’s case to “meaningful adversarial
testing,” denying the petitioner effective assistance of counsel); Cannon v. State, 252 S.W.3d 342,
350 (Tex. Crim. App. 2008) (applying the first and second Cronic scenarios, without specifically
applying one or the other and holding that defense counsel’s decision to not participate at trial after
the denial of a motion to recuse amounted to an entire failure to subject the prosecution’s case to
meaningful adversarial testing).
90
535 U.S. 685 (2002).
91
Id. at 687; Stuart E. Walker, “What we meant was . . .” The Supreme Court Clarifies Two
Ineffective Assistance Cases in Bell v. Cone, 53 Mercer L. Rev. 1271, 1273 (2003).
92
Cone, 535 U.S. at 692.
93
Id. at 687; Walker, supra note 91, at 1274.
24
specific points in the proceeding.94 Commentators have generally accepted that the
Cone decision limits the breadth of Cronic’s second exception. In fact, many case
decisions and legal commentators interpret Cone to have significantly limited all
three Cronic exceptions.95
The Court need not resolve the State and Mr. Lambert’s argument regarding
the second exception, however. It need not because the circumstances of this case
now fit firmly within the scenario described in the first Cronic exception, as required
by Urquhart.96
In Urquhart, the defendant sought a new trial and alleged that the first Cronic
exception applied to his case.97 There, the Court began its analysis by describing
the pretrial phase of the defendant’s proceedings as the relevant “stage.”98 During
that stage, trial counsel had only minimal contact with the defendant from the
94
Cone, 535 U.S. at 697 (emphasis added); Walker, supra note 91, at 1283; see also Black’s Law
Dictionary (defining “proceeding” as “including all possible steps in an action from its
commencement to the execution of judgment”). Notwithstanding the Court’s reference in Cronic
to the “case” as the benchmark, and in Cone to the proceeding, the Cone decision nevertheless
seems to parcel its frame of reference on only one portion of the proceedings – the penalty phase
in a capital case. Cone, 535 U.S. at 697.
95
Walker, 892 A.2d at 557. See Walker, supra note 91, at 1287 (limiting “Cronic’s prejudice
presumption to only those situations in which an attorney’s failure is complete with the respect to
the entire proceeding . . . .”); see also Jennifer Williams, The Sixth Amendment Right to Counsel
– The Supreme Court Minimizes the Right to Effective Counsel, 28 U. Ark. Little Rock L. Rev.
149, 170-73 (2005) (explaining that the exceptions of Cronic were thought to provide some relief
for defendants but recognizing that Bell v. Cone and Florida v. Nixon narrowed the exceptions to
make them almost impossible to reach); Kimberly H. Zelnick, Note, In Gideon’s Shadow: The
Loss of Defendant Autonomy and the Growing Scope of Attorney Discretion, 30 Am. J. Crim. L.
363, 379-80 (2005) (discussing the Cronic presumption’s limited application and opining that
“[a]ny lingering hopes that Cronic may still be revived, moreover, were effectively foreclosed by
the Court’s more recent holding in Bell v. Cone.”); Robert J. Nolan, Prejudice Presumed: The
Decision to Concede Guilt to Lesser Offenses during Opening Statements, 55 Hastings L.J. 965,
974-80 n.69 (2004) (noting that Bell limits Cronic and most federal courts have read the Cronic
presumptions more narrowly following Bell).
96
Urquhart, 203 A.3d at 732.
97
Id. at 726.
98
Id. at 731.
25
arraignment until the beginning of trial.99 The Court then evaluated whether trial
counsel’s inadequate representation rose to the level of a complete denial of
representation.100 Despite trial counsel’s physical presence at two points during the
pretrial stage, he provided very little assistance to the defendant throughout that
entire stage.101
In its analysis, the Urquhart Court acknowledged a difference in how lower
courts interpret the first Cronic exception.102 When doing so, it took what it
described as the unconservative approach.103 Namely, it expanded the exception in
Delaware to include more than the mere physical absence of counsel. The expansion
now includes the constructive complete denial of counsel within Cronic’s first
exception.104 Accordingly, under the Urquhart decision, a physically present
attorney, who fails to advocate for his or her client during a critical stage of the
proceedings, causes a constructive complete denial of counsel.105 That, in turn,
excuses the defendant from demonstrating prejudice.106
When the Court applies Urquhart’s holding to Mr. Lambert’s case, it first
recognizes that a bench trial is a “critical stage of the proceedings.” Because Trial
Counsel physically attended the entire trial, the inquiry shifts to whether Trial
99
Id.
100
Id. at 732.
101
Id.
102
Id. See also Brian R. Means, Second Category of Cases: Per se violations, Postconviction
Remedies § 35:25, n.2 (2021) (listing cases where absence means physical absence); c.f. n.2
(listing cases that find absence under what can best be described as “complete constructive denial”
as described in the Urquhart decision).
103
Urquhart, 203 A.3d at 732; but see id. at 735 (Vaugh, J., dissenting) (taking the “conservative
tack” mentioned by the majority, as used by the trial court below, and submitting that where
counsel entered his or her appearance and physically appeared at pretrial events, there was not a
“complete denial” of counsel at a critical stage).
104
Id. at 732 (emphasis added).
105
Id.
106
Id. at 733.
26
Counsel’s conduct constituted a constructive complete denial.107 Where he failed to
participate at any point in the trial and provided Mr. Lambert no defense at all, there
was a constructive complete denial of counsel that triggers Cronic’s first exception.
Therefore, to prevail in his postconviction motion, Mr. Lambert need not
demonstrate prejudice. Because prejudice is presumed, he satisfies what would
otherwise be the second Strickland prong without the need to granularly review the
evidence.
IV. CONCLUSION
For the reasons discussed in this Opinion, Trial Counsel performed deficiently
in Strickland terms when he failed to provide Mr. Lambert a defense at his trial.
Furthermore, because prejudice is presumed under these circumstances, Trial
Counsel’s conduct resulted in a violation of Mr. Lambert’s Sixth Amendment Right
to Counsel. As a result, the Court rejects the Commissioner’s Report and
Recommendation in its entirety. Mr. Lambert’s postconviction motion must be
GRANTED, and he is entitled to a new trial.
107
Id. at 732.
27