Wednesday, February 7, 2018

A Critical Stage

The Delaware Supreme Court found ineffective assistance of counsel at sentencing

This petition for post-conviction relief argues that defendant Darius Harden suffered prejudice because his attorney did not represent him effectively at his sentencing hearing. Sentencing was a critical stage for Harden because he committed an awful crime of violence, and did so in front of the victim’s five-year-old child. As originally charged, Harden faced potential convictions for Home Invasion, Assault Second Degree, Terroristic Threatening, Theft, Offensive Touching, and Endangering the Welfare of a Child. Eventually, he pled guilty to Assault Second Degree and Endangering the Welfare of a Child, and the State agreed to cap its sentencing recommendation to 15 years.

This agreement was important because Harden, due to his habitual offender, status, faced a potential maximum sentence of life imprisonment for the crimes to which he pled guilty. This was not Harden’s first act of violence, and there were plenty of good reasons why a sentencing judge could have given Harden a longer sentence than the 15 years the State agreed to recommend. Even worse, after he committed the crime, Harden blamed the assault on the victim, claiming it was in self-defense, and also attempted to threaten the victim into recanting her story.

Before his sentencing hearing, Harden’s trial counsel from the Public Defender’s Office changed jobs. Rather than seek a continuance to prepare for sentencing with Harden and develop a sound strategy, Harden’s new sentencing counsel proceeded to the sentencing hearing after, at best, a fleeting discussion with Harden on the day of the hearing either in lock-up or in the courtroom itself. Sentencing counsel did not prepare Harden for allocution or make any effort to discuss with him whether there was mitigating evidence that might support a more lenient sentence. Instead, Harden’s new counsel acted on the supposed strategy of seeking less than the 15 years that the State agreed not to exceed in its recommendation. That this strategy was not a strategy in the sense of involving any overarching plan to achieve the intended objective showed in counsel’s brief argument that the court should give Harden three years less than the State’s recommendation of 15 years, without articulating any plausible reason why that was so

Counsel then let Harden speak. Although Harden attempted to explain that he was sorry for his gruesome crime, he started off by indicating that he had experienced a “difficult” year and had “lost a lot” as a result of his conviction.2 After listening to Harden, the Superior Court judge sentenced him to 18 years at Level V supervision: three years more than the State sought. In that decision, the judge specifically cited to Harden’s allocution and his focus on himself, rather than on the effect of his crime on his victims.

 The court

 Even more than preparing a witness to testify—a process that also helps determine whether a witness should testify, if not testifying is an option—preparing a defendant who has pled guilty for allocution is a duty of fundamental importance. The impression a defendant makes on a sentencing judge is critical, especially in a case where the crime is serious and the defendant tried to interfere with the victim’s testimony earlier in the proceedings. All witnesses face nerves, even experienced corporate executives. So too do criminal defendants. The right to representation includes having a lawyer who makes a reasonable effort to prepare you for allocution, decides if you can do so effectively, and helps you put your best foot forward if you decide you wish to speak. Harden got no help of that kind, and his awkward, spontaneous presentation—despite including statements of contrition— started with references to the effect of the crime on himself. Harden’s self-centered commentary was specifically referenced in the judge’s sentencing decision as the “most troubling aspect” of the case, and was an indicator of at least one of the four aggravating factors cited in the sentencing order: lack of remorse.

 Given the objective reality that Harden’s unprepared allocution aggravated his sentence and the undisputed fact that counsel developed no rational strategy for arguing for a shorter sentence than the State sought, there is a reasonable probability that had counsel acted reasonably, Harden could have received a sentence in accord with the State’s recommendation of 15 years, rather than the 18 years he got. In so determining, we do not fault the trial judge in any way. Rather, we only acknowledge the importance of the sentencing hearing in making difficult sentencing decisions in cases like these and the reality that how a defendant presents himself is a rational factor in determining the ultimate sentence. When a defendant’s counsel fails to prepare himself or his client, and the sentencing decision itself reflects the negative effects of that failure, prejudice under Strickland exists. For these reasons, we reverse and remand for resentencing before a different judge.

(Mike Frisch)

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