Opinion
I.D. No. 9504002666R.
Submitted: May 24, 2010.
Decided: June 28, 2010.
On Defendant Fogg's Counsel's Motion to Withdraw.
GRANTED.
John Williams, Esquire, Deputy Attorney General, Department of Justice, Dover, Delaware, Attorney for the State.
Bernard J. O'Donnell, Office of Public Defender, Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
Currently before the Court is Mr. O'Donnell's motion to withdraw as counsel for Defendant, Jeffrey Fogg. The only issue presented by this motion is whether Mr. O'Donnell has sufficiently established that "counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant. . . ." Without considering the merits of Defendant's substantive claims, this Court finds that Mr. O'Donnell has sufficiently demonstrated that he (subjectively) considers Defendant's claim to be without merit such that he cannot ethically advocate it. Accordingly, Mr. O'Donnell's motion to withdraw as counsel is GRANTED.
Super. Ct. R. Crim. Pro. 61(e)(2).
In 1996, Defendant and his codefendant, Daryl Andrus ("Andrus"), were convicted of Murder First Degree and Conspiracy Second Degree in connection with the murder of James Dilley. Defendant was sentenced to life in prison without the possibility of probation or parole.
Fogg v. State, 2002 WL 31053868, at * 1 (Del. Super.).
Id.
Defendant appealed his convictions to the Delaware Supreme Court, and after an initial remand, Defendant's convictions were affirmed by the Delaware Supreme Court in 1998. Subsequently, Defendant filed a motion for postconviction relief alleging ineffective assistance of counsel and other claims.
The Supreme Court initially remanded for consideration of a Bruton issue not originally raised at trial. See Mot. to Withdraw as Counsel at 1.
Fogg v. State, 1998 WL 736331 (Del. Supr.).
Defendant initially filed his first motion for postconviction relief pro se. Defendant was then able to obtain counsel, and an amended motion for postconviction relief was filed alleging ineffective assistance of counsel.
On August 1, 2000, this Court dismissed in part and denied in part Defendant's postconviction claims. Defendant appealed, and the Supreme Court remanded Defendant's appeal for a hearing on Defendant's ineffective assistance of counsel claims.
Fogg v. State, 2000 WL 1211510 (Del. Super.).
See Mot. to Withdraw as Counsel at 2.
Shortly after the order of remand, Andrus filed his own motion for postconviction relief alleging, among other claims, a Brady violation. Andrus's Brady violation related to a potential undisclosed agreement between the State and one of its key trial witnesses, Robert Richmond ("Richmond"). Allegedly, Richmond was promised favorable action by the State in connection with prison sentences he was serving at the time of his testimony. After Andrus's motion was filed, Defendant requested leave to adopt Andrus's Brady claim. This request was granted.
Id.
Id.
Id.
Id.
In 2002, this Court held a hearing on Defendant's ineffective assistance of counsel claims, and Defendant's motion for postconviction relief was denied. The Court did not consider Defendant's potential Brady argument at that hearing because Richmond was unavailable to testify. Any hearing on the potential Brady violation was postponed until Richmond was available to testify in Delaware.
Id.
Id.
Delaware eventually obtained custody of Richmond in 2009, and a hearing was held to establish the facts concerning the Brady violation. A briefing schedule was established, and Mr. O'Donnell assumed the responsibility of reviewing and presenting Defendant's postconviction claim.
Defendant was originally represented by Nancy J. Perillo, Esquire. As a result of Ms. Perillo's death in 2004, Mr. O'Donnell began to represent Defendant.
After reviewing the record, Mr. O'Donnell filed the instant motion to withdraw as counsel pursuant to Superior Court Rule of Criminal Procedure 61(e)(2), which states:
Motion to Withdraw. If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel's opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.
Super. Ct. R. Crim. Pro. 61(e)(2).
The State does not oppose Mr. O'Donnell's motion. However, Defendant filed a lengthy response raising a litany of arguments as to why he is entitled to relief and argues that the arguments he presents are meritorious. Although Defendant apparently does not object directly to Mr. O'Donnell's motion to withdraw, Defendant argues against any implication that his arguments are "so lacking in merit. . . ."
After reviewing Mr. O'Donnell's motion, this Court has determined that counsel should be permitted to withdraw. Mr. O'Donnell has asserted that it is his subjective belief that Defendant's motion is lacking in merit such that he cannot ethically advocate Defendant's position pursuant to the Delaware Rules of Professional Conduct. Although Superior Court Rule of Criminal Procedure 61(e)(2) requires counsel to "explain the factual and legal basis for counsel's opinion" this Court will not require this additional information because any statement by Mr. O'Donnell might prejudice his client and, thereby, breach the duty of loyalty established by Delaware Rule of Professional Conduct 1.8.
Although Defendant asserts that his arguments are meritorious, this Court has not reviewed the substance of Defendant's claims for the purposes of deciding the instant motion. Although Defendant's arguments may indeed have merit, this Court must only evaluate Mr. O'Donnell's subjective beliefs concerning Defendant's arguments. Because Mr. O'Donnell has stated that he believes that he can no longer ethically advocate Defendant's claims, he is permitted to withdraw.
See Geoffrey C. Hazard, Jr. W. William Hodes, The Law of Lawyering § 27.13 (2007) ("a lawyer's duty to refrain from making frivolous contentions will result in conflict with the client if the client insists that the contentions nevertheless be made . . . the lawyer is required to withdraw if the client cannot be persuaded to yield.").
Accordingly, Mr. O'Donnell's motion to withdraw as counsel is GRANTED. This Court will treat Defendant's submission in response to Mr. O'Donnell's motion as a motion for postconviction relief pursuant to Rule 61, although this Court has not yet concluded that Defendant Fogg is entitled to have any motion for postconviction relief decided on the merits. The State shall file a response to Defendant's submission by July 30, 2010.
IT IS SO ORDERED.