State v. Arbolay

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
Plaintiff,
1.D.: 1810013334A
Vv.
ANGEL ARBOLAY,
Nee Nee Nee ee Nee ee Nee” eee”
Defendants
ORDER FOLLOWING REMAND FROM THE SUPREME COURT
This 7" day of January, 2021 it appears to the Court that:
1. Following a nonjury trial, on July 19, 2019 Angel Arbolay was found guilty of:
(1) Possession of Deadly Weapon During the Commission of a Felony; (2) Drug
Dealing; (3) Tier One Possession; (4) Operating or Attempting to Operate a
Clandestine Laboratory; (5) Tampering with Evidence; (6) Possession of a
Controlled Substance; (7) resisting arrest; and (8) possession of Drug
Paraphernalia. Mr. Arbolay was declared a Habitual Offender for sentencing
purposes and was sentenced pursuant to 11 Del. C. §4214(c). On November 15,
2019 defendant was sentenced to a mandatory jail term of 25 years with
decreasing levels of probation to follow. On November 25, 2019 a timely notice
of appeal was filed with the Delaware Supreme Court on behalf of the Defendant.
2. Before the filing of his opening brief in the Supreme Court, Arbolay filed a
motion and affidavit asking to discharge his attorney and to represent himself in
his appeal, notwithstanding his constitutional and statutory right to counsel.
Defendant requested that his case be remanded to the Superior Court for an
evidentiary hearing so that he could demonstrate that he has made his request to
proceed pro-se in the Supreme Court knowingly, intelligently and voluntarily.
. On October 26, 2020 the Delaware Supreme Court remanded this case to the
Superior Court with the following instructions to hold an evidentiary hearing to
determine:
(i) | Whether Arbolay has retained private counsel to
represent him on appeal. If so, the Superior Court’s inquiry
can end. Ifnot, the Superior Court must determine if Arbolay
is an indigent person.
(ii) If Arbolay is indigent, the Superior Court must
determine whether he understands his right to court-appointed
counsel to assist him on appeal by an inquiry into his
educational background and his familiarity, if any, with the
criminal justice system, including the trial process. If Arbolay
is indigent, he should understand that he must either accept
representation on appeal by his present court-appointed
counsel or proceed pro-se.
(iii) If Arbolay elects to proceed pro-se, an inquiry should be
made into his decision to waive his right to retain private
counsel, or if he is indigent, his decision to waive the
assistance of his court-appointed trial counsel, including his
explanation for such a decision. This should include the
following inquiries:
(a) Whether Arbolay has consulted with any person,
including any other attorney, in the making of his
decision to waive his right to counsel. Arbolay may,
but he is not required to, identify such persons.
(b) Whether Arbolay understands that notwithstanding
his lack of legal training, he will be required to comply
with all pertinent rules of the Supreme Court.
(c) Whether Arbolay understands that notwithstanding
his lack of legal training, he will be required to comply
with all pertinent rules of the Supreme Court.
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(d) Whether Arbolay understands that noncompliance
with pertinent rules of the Supreme Court may delay or
prejudice his appeal.
(e) Whether Arbolay understands that the allowance of
oral argument is discretionary with the Supreme Court,
and that the Supreme Court’s practice in criminal cases
is not to grant oral argument to pro-se litigants.
(f) Whether Arbolay understands that if his waiver of
counsel is accepted, he will not thereafter be permitted
to interrupt or delay the appellate process to secure the
assistance of court-appointed counsel simply because
he has changed his position.
(g) The Superior Court should make such further
inquiries as deemed necessary or desirable in order to
formulate a conclusion as to whether Arbolay’s
decision to proceed pro-se is knowing and voluntary.
4, On January 7, 2021 this Court held a ZOOM hearing as was ordered by the
Supreme Court.! Present were the defendant, Patrick Collins (who the defendant
had retained to represent him on his appeal but who the Defendant now wants to
discharge) and Deputy Attorney General Michael Cooksey.
5. Based on the entire record, including the testimony taken at the January 7, 2021
hearing, this Court’s review of the various filings made by the defendant himself
(as opposed to filings made by counsel) to this Court and the Delaware Supreme
Court, this Court makes the following findings of fact.
(a) Defendant hired Patrick Collins to represent him on appeal. Defendant wants
to discharge Mr. Collins and proceed pro-se. Defendant does not want to be
represented by court appointed counsel.
(b) Defendant has no assets and cannot afford counsel.
(c) Defendant is indigent. Defendant understands that he must either accept
representation on appeal by a court-appointed counsel or proceed pro-se.
‘ Following a request from this Court, the Defendant consented to a ZOOM evidentiary hearing.
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(d) Defendant understands that he has the right to court-appointed counsel to
assist him on appeal. Defendant has a GED High School Degree. He has
over time been trained as a welder and has run his own business. He has a
minimal understanding of the criminal justice system which is based solely
on his involvement in it.
(e) Defendant wants to waive his right to retain private counsel and to waive any
court appointed counsel. His reason for not wanting counsel is that he lost
confidence in counsel and does not believe that his rights are being adequately
protected.
(f) Defendant has consulted with another person about waiving his right to
counsel.
(g) Defendant understands that the appellate process involves the application of
rules of procedure that might be difficult for him to understand.
(h) Defendant understands that even though he has no legal training he will be
required to comply with all pertinent rules of the Supreme Court.
(i) Defendant understands that noncompliance with pertinent rules of the
Supreme Court may delay or prejudice his appeal.
G) Defendant understands that oral argument in the Supreme Court is
discretionary and that it is the Supreme Court’s practice in criminal cases not
to grant oral argument to pro-se litigants.
(k) Defendant understands that if his waiver of counsel is accepted, he will not
thereafter be permitted to interrupt or delay the appellate process to secure
the assistance or court-appointed counsel simply because he has changed his
mind about wanting to be represented by an attorney.
(1) No one has coerced or forced the defendant to request that he proceed pro-se
in his appeal.
(m) No one has promised the defendant anything as a result of his decision to
proceed pro-se in his appeal.
(n) Defendant confirmed that he had no physical or mental condition that
prevented him from understanding the Court’s questions or impacted his
ability to determine whether to proceed pro-se.
(0) Defendant fully understands the consequences of his decision to proceed pro-
sé in his appeal before the Delaware Supreme Court.
CC;
(p) Defendant’s decision to proceed pro-se in the Delaware Supreme Court is
made knowingly, intelligently and voluntarily.
. This Court finds that as a matter of law that the Defendant’s decision to proceed
without the assistance of counsel in the Delaware Supreme Court and to proceed
pro-se is made knowingly, intelligently and voluntarily.
. During the hearing the Defendant advised the Court that he is not content to rely
upon his previous pro-se filings in the Supreme Court as the sole basis of his
appeal. He would like the opportunity to file a brief. Due to his limited access
to the prison’s law library as a result of COVID, Mr. Arbolay would like sixty
(60) days to file his brief. Mr. Arbolay understands that the due date for his
briefs will be determined by the Delaware Supreme Court and not the
undersigned,
IT IS SO ORDERED.
Frandis J. Jones, Judge
Patrick Collins, Esquire
Michael Cooksey, Deputy Attorney General