State v. Cooper

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE )
)
v. ) I.D. No. 1801007017
)
MAURICE COOPER, )
)
Defendant. )
Submitted: August 3, 2022
Decided: August 3, 2022
Upon Defendant Maurice Cooper’s Motion to Disqualify Counsel,
GRANTED.
ORDER
Mark A. Denny, Jr., Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 North French Street, Wilmington, DE, Attorney for the State of
Delaware.
Peter A. Levin, Esquire, 1927 Hamilton Street, Philadelphia PA, 19130, Attorney
for Defendant Maurice Cooper.
Jan A. T. van Amerongen, Jr., Esquire, OFFICE OF DEFENSE SERVICES
OFFICE OF CONFLICTS COUNSEL, 900 King Street, Suite 320, Wilmington, DE
19801.
Maurice Cooper, James T. Vaughn Correctional Center, 1181 Paddock Road,
Smyrna, DE 19977, Defendant
WHARTON, J.
This 3rd day of August, 2022, upon consideration of Defendant Maurice
Cooper’s (“Cooper”) Motion to Disqualify Counsel, the responses to that motion of
Peter A. Levin, Esquire, the State of Delaware, and the Office of Defense Services
Office of Conflicts Counsel, Cooper’s letter withdrawing of his Motion to Disqualify
Counsel, the responses of counsel to that letter, and the record in this matter, it
appears to the Court that:
1. Defendant Maurice Cooper was convicted by a jury of Drug Dealing
(Heroin), Aggravated Possession of Heroin, four counts of Possession of a Firearm
by a Person Prohibited, and two counts of Possession of Ammunition by a Person
Prohibited on February 28, 2019.1 He was sentenced to an aggregate of 75 years of
unsuspended incarceration at Level 5, much of it minimum/mandatory incarceration.2
He also received additional periods of suspended incarceration with decreasing levels
of supervision.3 An unsuccessful appeal followed.4 On April 7, 2021, Cooper filed a
pro se motion for postconviction relief and an accompanying motion for appointment
of counsel.5 On April 19th, the Court granted the motion for appointment of counsel.6
On January 18, 2022, the Office of Conflicts Counsel moved for the admission pro
hac vice of Peter A. Levin, Esquire to represent Cooper.7 That motion was granted
1
D.I. 69.
2
D.I. 86.
3
Id.
4
Cooper v. State, 228 A.3d 399 (Del. Apr. 15, 2020).
5
D.I. 120, 121.
6
D.I. 125.
7
D.I. 126.
2
the same day.8 On June 13, 2022, Mr. Levin filed an Amended Motion for
Postconviction Relief of Cooper’s behalf.9
2. On June 8, 2022, Cooper filed this pro se Motion to Disqualify Counsel
(“Motion”).10 Cooper alleges that Mr. Levin has a conflict of interest in representing
him because he represented a “codefendant/witness” at a federal violation of
probation hearing.11 Cooper states that the codefendant/witness agreed to cooperate
against him in the federal and state proceedings against him stemming from the
racketeering investigation that resulted in Cooper’s conviction in this case.12
3. The Court solicited the positions of Mr. Levin, the State, and the Office
of Conflicts Counsel. Mr. Levin responds that he was asked by Conflicts Counsel to
represent another defendant in this case but declined because he was representing the
“codefendant/witness” in the federal violation of probation matter and that
“codefendant/witness” was also a defendant in this case.13 Therefore, he declined to
represent any defendant in this case.14 Initially, Mr. Levin was under the belief that
representing Cooper on his postconviction effort would not pose a conflict, but upon
delving deeper into the points Cooper raised in his motion to disqualify, he concludes
8
D.I. 127.
9
D.I. 135.
10
D.I. 132.
11
Id.12
Id.13
D.I. 136.
14
Id.3
that the Motion has merit.15 The State does not perceive a conflict.16 The Office of
Conflicts Counsel defers to Mr. Levin and agrees that a conflict exists.17
4. Subsequently, Cooper wrote to the Court withdrawing the Motion.18 The
letter did not provide an explanation for his change of heart.19 The Court again
solicited the comments of counsel to Cooper’s attempt to withdraw the Motion. Mr.
Levin responded on July 28th reiterating his belief that there is an incurable conflict
of interest between the interests of his former client and his continued representation
of Cooper.20 He bases that belief on a review of his former client’s file and a
conversation with that client’s counsel on his Delaware state charges.21 It appears
that Mr. Levin’s former client provided authorities with information about Cooper’s
alleged involvement in a homicide, two attempted murders, a robbery, and other
offenses.22 Mr. Levin also reviewed interview notes wherein his former client
expressed fear of Cooper and others.23 Finally, his former client has never waived
any conflict of interest.24 The Office of Conflicts Counsel responded on July 29th.25
Conflict Counsel received a call from Cooper in which he expressed his concern about
15
Id.16
D.I.
17
D.I.
18
D.I. 137.
19
Id.20
D.I. 138.
21
Id.22
Id.23
Id.24
Id.25
D.I. 140.
4
the delay that reassignment of his case to another attorney would cause.26
Nonetheless, the Office of Conflicts Counsel supports Mr. Levin’s determination that
the appointment of new counsel is necessary.27 The State does not oppose Cooper’s
request to withdraw his Motion to Disqualify Counsel.28 It believes that the basis
proffered for disqualification does not appear to conflict with any issues in Cooper’s
case.29 The State, in apparent agreement with Cooper, believes it is in the parties’
interest to proceed in a timely manner.30
5. The Court has considered the positions of all counsel and Cooper and
concludes that it would be appropriate for new counsel to be appointed to represent
Cooper. Interestingly, in all of their submissions, no one references the conflict of
interest rules of the Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”)
and only Cooper cites any case law. DLRPC Rule 1.9 provides that a lawyer “who
has formerly represented a client in a matter shall not thereafter represent another
person in the same or a substantially related matter in which that person’s interests
are materially adverse to the interests of the former client unless the former client
gives informed consent confirmed in writing.” The Court finds that the matter in
which Mr. Levin represented the former client is substantially related to Cooper’s
26
Id.27
Id.28
D.I. 139.
29
Id.30
Id.5
case.31 The Court further finds that the interests of Cooper and the former client are
materially adverse,32 and that the former client has not given informed consent to Mr.
Levin’s representation of Cooper, confirmed in writing. Accordingly, a conflict of
interest exists between Mr. Levin’s representation of his former client and his
representation of Cooper.
THEREFORE, Defendant Maurice Cooper’s Motion to Disqualify Counsel is
GRANTED, notwithstanding his attempt to withdraw it. The Office of Conflicts
Counsel is directed to appoint new counsel for Cooper as expeditiously as possible.
Upon the appointment of new counsel, the Court will issue a new scheduling order.
IT IS SO ORDERED.
/s/ Ferris W. Wharton
Ferris W. Wharton, J.
31
Cooper has provided detailed evidence supporting this conclusion in his Motion.
See, D.I. 132.
32
Mr. Levin’s former client has expressed his fear of Cooper. That fear no doubt
would be exacerbated were Mr. Levin to be successful on Cooper’s behalf.
6