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Delaware Supreme Court Describes What Constitutes ‘Effective’ Counsel at Sentencing

by Dale Chappell

Providing a lesson on what defense lawyers should and should not do to get their client a lower sentence, the Supreme Court of Delaware held that counsel was ineffective when he met with his client for the first time just minutes before sentencing and did not coach him on allocution.

There was no doubt that Darius Harden’s crime called for a serious sentence, the Court said, but his defense lawyer’s lack of assistance was too much to ignore. Harden, who pleaded guilty in 2014 to offensive assault second degree and endangering the welfare of a child for physically assaulting his girlfriend in front of her child, went into his sentencing hearing expecting to receive no more than the 15 years in prison. The State had agreed to recommend 15 years as part of a plea agreement. Instead, he received 18 years.

Harden then filed a Rule 61 motion for post-conviction relief, claiming that his counsel was ineffective during the sentencing phase. The superior court, though, denied his motion, holding that the record supported the 18-year sentence, so Harden was not prejudiced by counsel’s ineffective assistance. Harden appealed, and the Delaware Supreme Court agreed to hear his case.

The Supreme Court also agreed that the record supported the 18-year sentence, considering Harden faced up to life as a recidivist offender. However, that was not the measuring stick to assess counsel’s performance, the Court said. The question was not whether the sentence was reasonable, but whether counsel’s performance was—and whether the sentence would have been different absent counsel’s errors.

The proper measuring stick was established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), where the Court held that counsel is constitutionally ineffective if his or her performance is below the standard of what a reasonable lawyer would have done in the same circumstances, and whether that deficient performance “prejudiced” the defendant or changed the outcome of the proceeding. The Court also has held that sentencing is a “critical stage” in a criminal case that requires the effective assistance of counsel.

Pointing to the American Bar Association Standards for Criminal Justice, the Delaware Supreme Court said a “reasonable” lawyer at sentencing would (1) be “fully informed” of available sentencing alternatives, (2) consider and explain those alternatives to the defendant, (3) inform the defendant of his right to allocution, and (4) consider whether the defendant’s allocution would hurt or help at sentencing. None of that happened in Harden’s case, the Court said.

Instead, counsel met with Harden literally just minutes before sentencing. Counsel never investigated whether there were any mitigating factors to support a lower sentence and never coached Harden on how to effectively allocute or speak on his behalf in court. While counsel did argue for a lower sentence, he had no evidence to support such a sentence.

The judge was not impressed. Saying that Harden’s allocution showed he had no remorse for his crime, she imposed a higher sentence than what the State had asked for. The Supreme Court blamed counsel. Had counsel instructed Harden on how to allocute effectively, or took the time to figure out Harden’s allocution was going to hurt him, the Court said counsel should have spoken on behalf of Harden or simply accepted the State’s recommended sentence, which the Court likely would have imposed.

“But because counsel did not meet with Harden until the day of the sentencing hearing, there was no time to investigate mitigating factors, interview possible witnesses, discuss a sentencing strategy, or prepare Harden to allocute (or decide that he should not allocute),” the Court said.

Accordingly, the Court reversed and remanded to the superior court for resentencing before a different judge. See: Harden v. State, 2018 Del. LEXIS 55 (2018). 

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