State v. Caulk

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID. Nos. 1705002474,
) 1705004722
ROBERT P. CAULK, )
Defendant. )

Submitted: March 5, 2021
Decided: June 29, 2021

ORDER DENYING POSTCONVICTION RELIEF
AND GRANTING COUNSEL’S MOTION TO WITHDRAW

Upon consideration of Defendant Robert P. Caulk’s Motions for

Postconviction Relief (D.I. 52, 67)1, the State’s response thereto (D.I. 78), his

postconviction counsel’s Motion to Withdraw (D.I. 66), the affidavits of both trial

and appellate counsel (D.I. 73, 75), and the record in this case, it appears to the Court

that:

I. FACTUAL AND PROCEDURAL BACKGROUND

(1) On April 19, 2017, Robert Caulk entered a 7-Eleven located at 530

Greenhill Avenue in Wilmington, brought an item to the counter and handed over a

card to pay for it. When the card didn’t work, Mr. Caulk stepped aside to allow the

clerk to serve another customer. When that customer left, Mr. Caulk pulled out a

1
To avoid confusion, unless otherwise noted, the Court will reference only the docket entries
from Case ID No. 1705002474.
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knife and told the clerk to give him the money from the register. The clerk handed

over the store’s money.2

(2) On May 4, 2017, Mr. Caulk entered the same 7-Eleven. There, he

approached the same clerk—this time from behind—pressed a knife against his

back, and again demanded cash from the register.3

(3) Wilmington Police reviewed the video footage of the two robberies and

developed Mr. Caulk as the primary suspect. Via a photo lineup, the clerk identified

Mr. Caulk as the person who robbed the store on April 19, and May 4, 2017. A

warrant was then issued for Mr. Caulk’s arrest.4

(4) On May 8, 2017, Mr. Caulk, again, robbed the same clerk at the same

7-Eleven, this time taking cash, cigarettes, and lottery tickets.5

(5) Not long after this third robbery, Wilmington Police spotted Mr. Caulk

wearing the same clothing as they had just seen in the 7-Eleven surveillance video.

Wilmington Police arrested Mr. Caulk and found a screwdriver, money, a cell phone,

and cigarettes on his person.6

2
Caulk v. State, 2019 WL 1299962, at *1 (Del. Mar. 19, 2019).
3
Id.
4
Id.
5
Id.
6
Id.

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 (6) Wilmington Police then obtained search warrants for Mr. Caulk’s home

and cellphone. At Mr. Caulk’s home, police found a blue, hooded sweatshirt

matching the robber’s as seen in the surveillance footage of the April 19th and May

4th robberies. The analysis of cell tower data for Mr. Caulk’s phone revealed that it

was in the area of the 7-Eleven around the time of the May 4th and May 8th

robberies.7

(7) A Superior Court grand jury indicted Mr. Caulk on six counts of

Robbery First Degree, five counts of Possession of a Deadly Weapon During the

Commission of a Felony (“PDWDCF”), and one count of Aggravated Menacing.8

Within a week of indictment, Ralph D. Wilkinson, IV, Esquire, was appointed to

represent Mr. Caulk and filed pleas of not guilty on his behalf.9

(8) In November 2017, the State extended a plea offer to one count of

first-degree robbery, one count of second-degree robbery, and one count of

third-degree assault with a recommendation of the minimum 25-year Level V term

required with the application of the Habitual Criminal Act (11 Del. C. § 4214) to the

7
Id. at *2.
8
Indictment, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. July 10,
2017) (D.I. 2).
9
Arraignment Waiver Form, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del.
Super. Ct. July 25, 2017) (D.I. 3).

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first-degree robbery count.10 Mr. Caulk rejected the plea offer.11

(9) On December 20, 2017, the Court held a scheduling conference at

which Mr. Wilkinson advised that Mr. Caulk wished to forego a jury trial and

proceed with a bench trial.12 The next week, the Court held a hearing to confirm

Mr. Caulk’s plea rejection and accept his jury trial waiver. After a thorough colloquy

with him, the Court determined that Mr. Caulk understood the details of the plea

offer he had rejected and that his jury trial waiver was knowing and voluntary.13

(10) The following week the Court conducted a two-day bench trial. Before

testimony commenced, the State entered a nolle prosequi on three of the robbery

counts and one count of PDWDCF.14

(11) During its case-in-chief, the State presented testimony of: (i) Kashmir

Singh, the 7-Eleven clerk involved in all three robberies; (ii) Jennifer Johnstone, a

witness to the May 8th robbery; (iii) Wilmington Police Department (WPD) Officer

Diana Agosto, who responded to and investigated the April 19th robbery; (iv) WPD

Sergeant Michael Gifford, the May 8th arresting officer; (v) WPD Officer Shauntae

10
Case Review Tr., Nov. 27, 2017, at 4 (D.I. 81).
11
Id. at 4, 7-13.
12
Office Conference Tr., Dec. 20, 2017, at 2 (D.I. 60).
13
Jury Trial Waiver Colloquy Tr., Dec. 27, 2017, at 2-17 (D.I. 80).
14
Trial Tr., Jan. 3, 2018, at 4 (D.I. 45).

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Hunt, who responded to and investigated the May 4th robbery; (vi) WPD Sergeant

Steven Parrott, who responded to and investigated the May 8th robbery; (vii) WPD

Officer Thomas Lynch, who responded to and investigated the May 8th robbery;

(viii) Corporal William Gearhart of the WPD Forensic Services Unit, who testified

that certain prints lifted from the scene of the robbery did not match Mr. Caulk;

(ix) WPD Detective Joran Merced, who responded to and investigated the April 19th

and May 4th robberies; and (x) Brian Daly, a Department of Justice investigator,

who analyzed Mr. Caulk’s cell phone data.15 The State also presented the

surveillance videos from all three robberies.16 Mr. Caulk did not testify during the

trial and no defense witnesses were called.17

(12) When the State’s case concluded, Mr. Wilkinson moved for partial

judgment of acquittal on the May 8th robbery count arguing that as, neither

Mr. Singh nor Ms. Johnstone testified to actually seeing a weapon during the

commission of the crime, the State had not proven that aggravating element required

for a verdict of first-degree robbery.18 The Court denied the motion.19

15
Id. at 10, 34, 41, 50, 69, 78, 87, 98, 122, 141.
16
Caulk, 2019 WL 1299962, at *2.
17
Trial Tr., Jan. 5, 2018, at 16-18 (D.I. 46).
18
Id. at 2-5.
19
Id. at 5.

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 (13) The Court dismissed Mr. Caulk’s aggravated menacing charge and one

count of PDWDCF as they merged with other counts.20 The Court then rendered its

verdict, finding Mr. Caulk guilty of one count of Robbery First Degree and one count

of PDWDCF for the April 19th incident.21 The Court also found Mr. Caulk guilty

of one count of Robbery First Degree for each of the May 4th and May 8th robberies.

But the Court acquitted Mr. Caulk of each PDWDCF counts tied to those two later

incidents.22 The Court then ordered a pre-sentence investigation and deferred

sentencing until its completion.23

(14) Prior to sentencing, the State moved to declare and sentence Mr. Caulk

as a habitual criminal offender.24 The Court held a hearing on the State’s motion

where Mr. Caulk argued that, while his two prior violent felony convictions did

occur, he did not have an opportunity for rehabilitation between those convictions.

Thus, argued Mr. Caulk, that required element of the habitual offender statute—as

he defined it—could not be satisfied.25 In granting the State’s motion, the Court

20
Id. at 8-9.
21
Verdict Tr., Jan. 8, 2018, at 11 (D.I. 42).
22
Id. at 11-12.
23
Id. at 13.
24
Mots. to Dec. Def. Habitual Offender, State v. Robert Caulk, ID Nos. 1705002474,
1705004722 (Del. Super. Ct. Mar. 22, 2018, June 26, 2018) (D.I. 31, 34).
25
Sentencing Tr., July 16, 2018, at 11-12 (D.I. 61).

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reviewed Delaware case law on the rehabilitation issue and determined that all that

was required for predicate felonies to count in the habitual criminal sentencing

calculation is a mere lapse of time between the sentencing for one crime and the

commission of the next—that is, there can be no overlap.26

(15) The Court granted the State’s motion as to the May 4th and May 8th

robbery charges27 and sentenced Mr. Caulk: (i) for the first count of first-degree

robbery (IN17-05-0760)—25 years at Level V to be served under the provisions of

11 Del. C. § 4214; (ii) for the second count of first-degree robbery

(IN17-05-1322)—25 years at Level V to be served under the provisions of 11 Del.

C. § 4214; (iii) for the third count of first-degree robbery (IN17-05-0759)—15 years

at Level V, suspended after three years for two and one-half years months of

decreasing levels of supervision; and (iv) for PDWDCF (IN17-05-1324)—two years

at Level V.28

26
Id. at 12-15.
27
Order Dec. Def. Habitual Offender, State v. Robert Caulk, ID Nos. 1705002474, 1705004722
(Del. Super. Ct. July 16, 2018) (D.I. 37).
28
Sentencing Order, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct.
July 16, 2018) (D.I. 38).

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 (16) Mr. Caulk immediately filed a direct appeal in the Delaware Supreme

Court. His convictions and sentences were affirmed.29

(17) Mr. Caulk then moved, pro se, to modify his sentence. He asks the

Court to order his several sentences to run concurrently.30

II. MR. CAULK’S MOTIONS FOR POSTCONVICTION RELIEF

(18) Shortly thereafter, Mr. Caulk filed, pro se, the present Motion for

Postconviction Relief31 and a Motion for Appointment of Counsel.32 The Court

granted Mr. Caulk’s Motion for Appointment of Counsel33 and Edward F. Eaton,

Esquire, was appointed to represent Mr. Caulk in his postconviction proceeding.

Mr. Eaton has filed a Motion to Withdraw as Counsel.34 In his motion, Mr. Eaton

29
Caulk, 2019 WL 1299962, at *1. Mr. Caulk was appointed appellate counsel, Santino Ceccotti,
Esquire, who filed a non-merit brief and motion to withdraw under Supreme Court Rule 26(c). Id.
at *2.
30
Mot. for Sentence Mod., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super.
Ct. Aug. 26, 2019) (D.I. 49). The Court stayed the consideration of this motion until the resolution
of Mr. Caulk’s postconviction proceedings. Letter Order, State v. Robert Caulk, ID Nos.
1705002474, 1705004722 (Del. Super. Ct. Oct. 28, 2019) (D.I. 57).
31
Def.’s Mot. for Postconviction Relief, State v. Robert Caulk, ID Nos. 1705002474,
1705004722 (Del. Super. Ct. Oct. 18, 2019) (D.I. 52).
32
Def.’s Mot. for Appt. of Counsel, State v. Robert Caulk, ID Nos. 1705002474, 1705004722
(Del. Super. Ct. Oct. 18, 2019) (D.I. 53).
33
Order Granting Def.’s Mot. for Appt. of Counsel, State v. Robert Caulk, ID Nos. 1705002474,
1705004722 (Del. Super. Ct. Oct. 28, 2019) (D.I. 56).
34
PCR Counsel’s Mot. to Withdraw, State v. Robert Caulk, ID Nos. 1705002474, 1705004722
(Del. Super. Ct. June 16, 2020) (D.I. 66).

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reports that, after careful review of Mr. Caulk’s case, Mr. Caulk’s claims are so

lacking in merit that he cannot ethically advocate for them; and further, that

he is not aware of any other substantial grounds for relief.35 Mr. Caulk filed a

Supplemental Motion for Postconviction Relief, setting forth new claims and

requesting that the Court deny Mr. Eaton’s motion to withdraw.36 Mr. Caulk’s trial

and appellate counsel have each filed an affidavit addressing Mr. Caulk’s

postconviction claims.37 And the State has filed its response opposing Mr. Caulk’s

postconviction motion.38

(19) In his postconviction motion and its supplements, Mr. Caulk raises

seven claims of ineffective assistance of counsel—six against trial counsel and one

against appellate counsel—and two standalone claims of Court error. Specifically,

Mr. Caulk alleges his trial counsel, Mr. Wilkinson, was ineffective as: (i) he failed

to investigate Mr. Caulk’s history of mental health issues and substance abuse, and

present those findings at the sentencing hearing; (ii) he failed to present evidence at

35
Id. at 1, 28.
36
Def.’s Rule 61 Suppl., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super.
Ct. June 2, 2020) (D.I. 67).
37
Appellate Counsel Aff., State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super.
Ct. Oct. 30, 2020) (D.I. 73); Trial Counsel Aff., State v. Robert Caulk, ID Nos. 1705002474,
1705004722 (Del. Super. Ct. Nov. 30, 2020) (D.I. 75).
38
State’s Opp’n, State v. Robert Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Jan.
19, 2021) (D.I. 78).

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trial based upon conversations with Mr. Caulk, knowing that he suffered from mental

health and substance abuse issues; (iii) he permitted Mr. Caulk to waive his right to

a jury trial and proceed before a judge who was fully aware of his history; 39 (iv) he

failed to conduct a pretrial investigation and adequately prepare for trial; (v) he failed

to cross-examine the State’s witnesses using the questions provided by Mr. Caulk;

and (vi) he failed to file a motion to suppress as Mr. Caulk requested.40 Further,

Mr. Caulk alleges his appellate counsel, Mr. Ceccotti, was ineffective for moving to

withdraw and filing a Rule 26(c) non-merit brief. This, Mr. Caulk says, forced him

to proceed pro se, placing him in an impossible position due to his mental health

issues, learning disabilities, and lack of legal training.41 Lastly, Mr. Caulk contends

that the Court should have: (i) conducted a hearing to investigate the conflicts

between himself and trial counsel; and (ii) in light of these conflicts, continued the

trial to allow for more time for the defense to prepare.42

(20) In accord with this Court’s Criminal Rule 61(e)(1), Mr. Caulk was

appointed postconviction counsel.43 Mr. Eaton has now, pursuant to Rule 61(e)(7),

39
Def.’s Mot. for Postconviction Relief at 3.
40
Def.’s Rule 61 Suppl. at 1-4.
41
Def.’s Mot. for Postconviction Relief at 3.
42
Def.’s Rule 61 Suppl. at 1-4.
43
Order Granting Def.’s Mot. for Appt. of Counsel (D.I. 53).

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filed a brief and motion to withdraw.44 Mr. Eaton avers that, based upon a careful

and complete examination of the record, there are no meritorious grounds for relief.45

(21) Under this Court’s Criminal Rule 61(e)(7):

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.46

(22) Mr. Eaton has conducted a careful review of Mr. Caulk’s case and has

determined that Mr. Caulk’s claims are so lacking in merit that he cannot ethically

advocate them. Mr. Eaton explains further that he is unaware of any other substantial

ground for relief.47 Mr. Eaton provided Mr. Caulk with a copy of his withdrawal

motion and advised Mr. Caulk of his ability under Rule 61(e)(7) to file a response

thereto.48

44
PCR Counsel’s Mot. to Withdraw (D.I. 66).
45
Id. at 1, 28.
46
Super. Ct. Crim. R. 61(e)(7).
47
PCR Counsel’s Mot. to Withdraw at 1, 28.
48
Id. at 28.

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 III. RULE 61’S PROCEDURAL REQUIREMENTS

(23) In order to evaluate Mr. Caulk’s postconviction claims, and to

determine whether his latest counsel’s motion to withdraw should be granted, the

Court should be satisfied that Mr. Eaton conducted a truly conscientious examination

of the record and the law for claims that could arguably support Mr. Caulk’s Rule

61 motion. The Court should also conduct its own review of the record to determine

whether Mr. Caulk’s Rule 61 motion is devoid of any, at least, arguable

postconviction claims.49

(24) Delaware courts must consider Criminal Rule 61’s procedural

requirements before addressing any substantive issues.50 The procedural bars of

Rule 61 are “timeliness, repetitiveness, procedural default, and former

adjudication.”51 Here, Mr. Caulk’s motion was filed less than a year after his

judgment of conviction became final.52 So it’s timely. This is Mr. Caulk’s first Rule

61 application. So it’s not repetitive.

49
State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Ct. Dec. 7, 2017).
50
Maxion v. State, 686 A.2d 148, 150 (Del. 1996); State v. Jones, 2002 WL 31028584, at *2
(Del. Super. Ct. Sept. 10, 2002).
51
State v. Stanford, 2017 WL 2484588, at *2 (Del. Super. Ct. Jun. 7, 2017).
52
Def.’s Mot. for Postconviction Relief (D.I. 52); Supreme Court Mandate, State v. Robert
Caulk, ID Nos. 1705002474, 1705004722 (Del. Super. Ct. Apr. 4, 2019) (D.I. 48).

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 (25) Rule 61(i)(3) states, too, that “[a]ny ground for relief that was not

asserted in the proceedings leading to the judgment of conviction, as required by the

rules of this court, is thereafter barred, unless the movant shows . . . [c]ause for relief

from the procedural default and . . . [p]rejudice from violation of the movant’s

rights.”53 Though this bar is inapplicable to allegations of ineffective assistance of

counsel that, in all but the rarest of circumstances, couldn’t have been raised on

direct appeal.54 So Mr. Caulk’s ineffective assistance of counsel claims aren’t

procedurally barred here. And the Court will address them on their merits.

(26) But Mr. Caulk’s standalone claims of trial error—alleging that the

Court should have conducted a hearing to investigate the conflicts between himself

and trial counsel and continued the trial to allow for more time for the defense to

prepare—are procedurally barred by Rule 61(i)(3) because Mr. Caulk never

requested such a hearing or continuance. Nor did he raise these issues during his

direct appeal.

(27) Mr. Caulk does contend these claimed errors should have been raised

on direct appeal, but appellate counsel ignored them and instead filed a non-merit

brief and motion to withdraw under Supreme Court Rule 26(c).55 So the Court will

53
Super. Ct. Crim. R. 61(i)(3).
54
State v. Coverdale, 2018 WL 259775, at *2 (Del. Super. Ct. Jan. 2, 2018).
55
Def.’s Rule 61 Suppl. at 4.

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treat the failure-to-address-the-conflict and failure-to-continue-the-trial issues as

ineffective assistance of counsel claims brought against Mr. Caulk’s appellate

counsel.

(28) In sum then, Mr. Caulk levels six claims of ineffective assistance of

counsel at his trial counsel and two claims at his appellate counsel.56

IV. DISCUSSION

A. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS—TRIAL COUNSEL.

(29) A claim of ineffective assistance of counsel is reviewed under the

familiar two-part Strickland test.57 A claimant asserting ineffective assistance of

counsel must demonstrate that: (i) his defense counsel’s representation fell below an

objective standard of reasonableness, and (ii) there is a reasonable probability that,

but for counsel’s errors, the result of his proceedings would have been different.58

(30) For the first prong, deficient performance, the burden is on the claimant

to show that counsel’s conduct fell below an objective standard of reasonableness,

“i.e., that no reasonable lawyer would have conducted the defense as his lawyer

56
These two claims being: (1) withdrawing as counsel during the appeal; and (2) failing to raise
Mr. Caulk’s two standalone complaints of trial court error during the direct appeal.
57
Strickland v. Washington, 466 U.S. 668, 688-94 (1984); Neal v. State, 80 A.3d 935, 946 (Del.
2013).
58
Strickland, 466 U.S. at 688-94; see also Alston v. State, 2015 WL 5297709, at *3 (Del. Sept.
4, 2015).

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did.”59 There is a strong presumption that counsel’s representation was reasonable,60

and “[i]t is not this Court’s function to second-guess reasonable [ ] tactics” engaged

by trial counsel.61 Indeed, an attorneys strategic or tactical choices made after

thorough investigation of the relevant law and facts are virtually unchallengeable.62

(31) Too, one claiming ineffective assistance “must make specific

allegations of how defense counsel’s conduct actually prejudiced the proceedings,

rather than mere allegations of ineffectiveness.”63 This second prong requires the

claimant to show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”64

(32) An inmate must prove both deficient attorney performance and

resulting prejudice to succeed in making an ineffective assistance of counsel claim.

59
Green v. State, 238 A.3d 160, 174 (Del. 2020) (citing Burger v. Kemp, 483 U.S. 776, 791
(1987)).
60
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
61
State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002).
62
Green, 238 A.3d at 174.
63
Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015
WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196
(Del. 1996)); Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003).
64
Starling v. State, 130 A.3d 316, 325 (Del. 2015) (quoting Strickland, 466 U.S. at 694).

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Failure in the first instance to prove either will doom his claim, and the Court need

not address the other.65

(33) There are a few situations that the United States Supreme Court has

recognized to be so egregious that an ineffectiveness claimant need not prove the

prejudice prong of the traditional Strickland test. In United States v. Cronic, the

Court set out three “circumstances that are so likely to prejudice the accused that the

cost of litigating their effect in a particular case is unjustified.”66 These are:

(i) where there was complete denial of counsel at a critical stage of the proceeding;67

(ii) where “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing”;68 and, (iii) where “counsel is called upon to render assistance

under circumstances where competent counsel very likely could have not . . .”69

(34) In his fourth, fifth, and sixth claims of ineffective assistance of counsel

against Mr. Wilkinson, Mr. Caulk seeks to invoke the Cronic standard, claiming that

he was denied counsel altogether and counsel entirely failed to subject the

65
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a
two-pronged test, and there is no need to examine whether an attorney performed deficiently if the
deficiency did not prejudice the defendant”); State v. Hamby, 2005 WL 914462, at *2 (Del. Super.
Ct. Mar. 14, 2005).
66
United States v. Cronic, 466 U.S. 648, 658 (1984).
67
Id. at 659.
68
Id.
69
Bell v. Cone, 535 U.S. 685, 696 (2002).

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prosecution’s case to meaningful adversarial testing.70 But before the Court will

presume prejudice under Cronic, “there must be a complete failure of counsel.”71

And, as set out below, there was nothing even close to a “complete failure of

counsel.” No, Mr. Caulk’s contentions exhibit more of either his complete

disagreement with or complete misunderstanding of the professional decisions

Mr. Wilkinson made and the professional acts Mr. Wilkinson took—acts taken with,

at least, some favorable results—in Mr. Caulk’s defense. Thus, Mr. Caulk’s claims

will all be subject to the traditional Strickland analysis.

1. Failure to investigate and present mental health and substance abuse
evidence at trial and sentencing.

(35) In his first two contentions of ineffective assistance of trial counsel,

Mr. Caulk alleges that Mr. Wilkinson failed to investigate and present evidence of

Mr. Caulk’s mental health and substance abuse history at trial and sentencing.72

This claim survives neither of the two Strickland inquiries.

(36) Mr. Wilkinson did investigate and consider how to utilize Mr. Caulk’s

mental health and substance abuse history. Specifically, Mr. Wilkinson obtained a

psycho-forensic evaluation of Mr. Caulk that included extensive psychological

70
Def.’s Rule 61 Suppl. at 1-4.
71
Jackson v. Carroll, 161 F. App’x. 190, 193, 2005 WL 3477556, at *2 (3d Cir. Dec. 20, 2005);
State v. Jackson, 2008 WL 5048424, at *18 n.134 (Del. Super. Ct. Nov. 25, 2008).
72
Def.’s Mot. for Postconviction Relief at 3.

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reports from multiple state agencies.73 But, according to Mr. Wilkinson, nothing in

these records could be used to fashion a legal defense to the charged crimes.74 And

it was after conducting this investigation and reviewing the available mental health

reports that Mr. Wilkinson settled on the appropriate defense strategy in Mr. Caulk’s

case.75 Those decisions won’t be second-guessed now.76 Mr. Caulk has failed to

demonstrate that his trial counsel performed deficiently.

(37) Moreover, even if Mr. Caulk were able to show deficient performance

on this claim, it would still fail for his inability to show resulting prejudice. This is

for two reasons. First, at the sentencing hearing Mr. Wilkinson did present

Mr. Caulk’s mental health and substance abuse history to the Court. He argued, in

part, that based on that history Mr. Caulk had not had the opportunity for

rehabilitation required to be declared a habitual criminal offender.77 The Court

rejected that argument.78 Second, Mr. Caulk was sentenced to the minimum

73
Trial Counsel Aff. ¶ 1.
74
Id.
75
See Green, 238 A.3d at 174 (“Indeed, [i]f an attorney makes a strategic choice after thorough
investigation of law and facts relevant to plausible options, that decision is virtually
unchallengeable . . .” (quoting Purnell v. State, 106 A.3d 337, 342 (Del. 2014) (internal quotation
marks omitted))).
76
Drummond, 2002 WL 524283, at *1.
77
Sentencing Tr., July 16, 2018, at 11-12.
78
Id. at 15-16.

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mandatory sentence required for each of his several offenses.79 Any further appeal

by Mr. Wilkinson to the Court’s discretion would not and could not have affected

the outcome Mr. Caulk’s sentencing—the Court had no discretion to sentence below

the statutory minimums. Because he demonstrates neither deficient performance nor

resultant prejudice, Mr. Caulk’s first and second ineffective assistance of trial

counsel claims fail.

2. Allowing Mr. Caulk to Waive Jury Trial.

(38) Mr. Caulk’s next contention of ineffective assistance of trial counsel is

a complaint that Mr. Wilkinson allowed him to waive his right to a jury trial and “be

tried before a Judge [who was] fully aware of [his] extensive history.”80 Once again,

this claim fails.

(39) Mr. Caulk has not shown that Mr. Wilkinson’s representation here was

deficient. Nor could it be in this circumstance. The ultimate authority to make

certain fundamental decisions regarding his case—which include whether to plead

guilty, waive trial by jury, testify, or appeal—lays with the criminal defendant.81

This is because the consequences of these decisions fall on the defendant alone and

79
Sentencing Order, at 3-4. Mr. Wilkinson requested that Mr. Caulk receive no more than the
mandatory minimum for his charges. Sentencing Tr., July 16, 2018, at 25-26.
80
Def.’s Mot. for Postconviction Relief at 3.
81
Taylor v. State, 28 A.3d 399, 406 (Del. 2011) (quoting Jones v. Barnes, 463 U.S. 745, 751
(1983)).

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“are too important to be made by anyone else.”82 Thus, the decision to waive his

jury trial was Mr. Caulk’s decision alone.

(40) That said, a criminal defense attorney no doubt has a duty to advise his

client regarding the waiver of any of these core rights, including the waiver of a jury

trial.83 And Mr. Wilkinson did just that. He “spent extensive time speaking with

Mr. Caulk about his rights to a jury trial” and made one prison visit to Mr. Caulk for

the sole propose of discussing his desire to waive his right to a jury trial. 84 Mr.

Wilkinson explained to Mr. Caulk “the advantages and disadvantages of a jury trial

compared to a bench trial.”85 Even so, “Mr. Caulk was insistent on his desire to

proceed by bench trial despite the advice of counsel.”86

(41) At bottom, when complaining of his lawyer’s conduct regarding a

waiver of the right to trial by jury, “the defendant bears the burden of proving that

his counsel was unreasonable and whether counsel’s deficiency prejudiced

82
Cooke v. State, 977 A.2d 803, 842 (Del. 2009).
83
See Com. v. Mallory, 941 A.2d 686, 698 (Pa. 2008) (“Of course, lawyers have an obligation to
counsel their clients in conjunction with the waiver of basic rights, including the waiver of a
jury.”).
84
Trial Counsel Aff. ¶ 2.
85
Id.
86
Id.

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defendant's waiver of a trial by jury.”87 Thus, Mr. Caulk would—to carry his burden

on such a claim—have to demonstrate some deficiency in Mr. Wilkinson’s

discussion with him about a waiver of a jury trial and then demonstrate that

deficiency somehow tainted Mr. Caulk’s waiver to such a degree as to overcome the

record of his waiver colloquy.88

(42) The Court conducted, with Mr. Wilkinson present, an extensive

colloquy with Mr. Caulk when accepting his jury trial waiver.89 It was only after

this exchange that the Court found that Mr. Caulk knowingly and voluntarily waived

his right to trial by jury and accepted his executed waiver form.90 Any potential

shortcomings on Mr. Wilkinson’s part, were cured by the Court’s extensive waiver

colloquy.91

(43) Because Mr. Caulk fails to show that his counsel performed deficiently,

the Court need not address his claim of alleged prejudice—i.e., that he was tried by

87
State v. Taye, 2014 WL 785033, at *3 (Del. Super. Ct. Feb. 26, 2014), aff’d, 2014 WL 4657310
(Del. Sept. 18, 2014).
88
State v. Couch, 2007 WL 987403, at *2 (Del. Super. Ct. Mar. 30, 2007), aff’d, 2008 WL
390754, at *2 (Del. Feb. 14, 2008).
89
Jury Trial Waiver Colloquy Tr., Dec. 27, 2017 (D.I. 80).
90
Id. at 15.
91
State v. Hall, 2016 WL 241192, at *3 (Del. Super. Ct. Jan. 19, 2016) (“If trial counsel is
deficient in explaining to a defendant their right to a jury trial and the consequences of waiving
that right, trial counsel’s deficiency can be cured by the Court through a colloquy.”).

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a judge who would have known of his extensive criminal history.92 But this aspect

of a criminal bench trial alone is wholly insufficient to demonstrate the actual

prejudice required. For a trial judge sitting alone to make legal determinations and

“as a trier of fact, is presumed to have made his verdict only on the admissible

evidence before him and to have disregarded that which is inadmissible.” 93 That

judge also “is presumed to have the capability to attribute the proper weight to the

evidence and to disregard evidence that is [immaterial or] unreliable.”94

3. Failure to conduct a pre-trial investigation and
to adequately prepare for trial.

(44) In this claim, Mr. Caulk contends that he was denied counsel all

together because Mr. Wilkinson did not visit him during the pre-trial process, did

not investigate or interview any witnesses on his behalf, and did not go over the

evidence with him.95 During trial, Mr. Caulk had a series of outbursts expressing

his dissatisfaction with Mr. Wilkinson. During one of these outbursts, Mr. Caulk

stated:

92
Hamby, 2005 WL 914462, at *2.
93
Burke v. State, 1997 WL 139813, at *2 (Del. Mar. 2, 1997) (internal quotation marks and
citation omitted).
94
Truman v. Watts, 598 A.2d 713, 720 (Del. Fam. Ct. 1991).
95
Def.’s Rule 61 Suppl. at 1-3.

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 First of all, I’ve been locked up eight months and I’m now just
seeing this man. I ain’t seen him. He did not confer with me
about nothing, anything. I wrote to him several times asking for
a suppression hearing. He didn’t do that. And I feel as though
him and the State are in cahoots.”96

(45) The credible evidence in the postconviction record belies Mr. Caulk’s

protestations. Mr. Wilkinson met with Mr. Caulk on at least ten occasions, including

numerous visits to the Howard R. Young Correctional Institution, where Mr. Caulk

was detained pre-trial.97 During their discussions, Mr. Wilkinson spent extensive

time with Mr. Caulk going over the evidence against him, his plea offer, trial

strategy, and his desire to proceed with a bench trial.98 Mr. Wilkinson also had an

investigator contact witnesses that Mr. Caulk advised him of and had those witnesses

subpoenaed for trial.99

(46) In the face of all this, Mr. Caulk fails to explain just what Mr. Wilkinson

may have missed.100 Mr. Wilkinson was well-prepared for trial and he was in regular

96
Trial Tr., Jan. 3, 2018, at 63.
97
Trial Counsel Aff. ¶ 3.
98
Id.
99
Id.
100
See State v. Adkins, 2019 WL 3202254, at *3 (Del. Super. Ct. July 16, 2019) (where
postconviction movant provides no adequate explanation as to what may have been missed, his
“conclusory allegations of ineffective assistance of counsel do not establish that his counsel’s
representation was objectively unreasonable.”).

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communication with Mr. Caulk as he prepared what defense he could.101 There is

simply no demonstrable deficiency here.

(47) Lastly, Mr. Caulk fails to address the other necessary Strickland

showing—that, but for Mr. Wilkinson’s conduct, the outcome of the trial would have

been different (i.e., that Mr. Caulk would have been acquitted of the charges he was

convicted of).102 For this reason too, Mr. Caulk’s ineffectiveness claim alleging

failure to investigate and communicate fails.

4. Failure to cross-examine witnesses using the questions
provided by Mr. Caulk.

(48) In his next claim, Mr. Caulk alleges that Mr. Wilkinson conducted

inadequate cross-examination of the State’s witnesses.103 Specifically, Mr. Caulk

states that he “was submitting questions to [Mr. Wilkinson] to ask and

[Mr. Wilkinson] wasn’t asking any of the questions relevant to the case.”104

Mr. Caulk contends that his Sixth Amendment right to counsel “requires more than

the mere presence of defense counsel to the day of trial to perform perfunctory

101
Trial Counsel Aff. ¶ 3; Trial Tr., Jan. 3, 2018, at 64 (The Court: “No, I don’t think
Mr. Wilkinson thinks it’s funny at all. He has been prepared.”).
102
Wright, 671 A.2d at 1356 (“Mere allegations of ineffectiveness will not suffice. A defendant
must make specific allegations of actual prejudice and substantiate them.”).
103
Def.’s Rule 61 Suppl. at 1, 3.
104
Id. at 1.

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cross-examination of state witnesses as to their prior statements during the [r]obbery,

which included their identification of Caulk prior to his arrest and in court

identification at trial.”105 Mr. Caulk contends that he recognized Mr. Wilkinson’s

shortcomings at trial and wrote questions “based off his knowledge of the case and

review of evidence and conflicts between evidence and statements” and requested

Mr. Wilkinson use those questions, but Mr. Wilkinson did not.106

(49) In order to prevail on this claim, Mr. Caulk must prove, again,

(i) deficient performance, and (ii) resulting prejudice.107 And again, Mr. Caulk fails

to do so.

(50) Mr. Caulk’s perceived failings during cross-examination led to some of

his outbursts during the trial. For instance, after Mr. Wilkinson completed his

cross-examination of State’s witness Officer Diana Agosto, Mr. Caulk complained

loudly: “This is bullshit. Come on, man. I’m telling you stuff and you ain’t saying

nothing. This is bullshit. I feel as though I’m getting railroaded. I just brought this

to your attention and you didn’t say nothing.”108

105
Id. at 3.
106
Id.
107
Strickland, 466 U.S. at 688-94.
108
Trial Tr., Jan. 3, 2018, at 48-49.

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 (51) A criminal defense attorney counsel is given wide latitude in making

strategic trial decisions; this extends to the conduct of cross-examination.109

The questions to be asked and how a given cross-examination is conducted are

tactical decisions.110 And when challenging those decisions, the movant has the

burden of supplying precisely what information would have been obtained had

counsel conducted the cross as the complaining inmate desired and just how this

information would have changed the result of his trial.111

(52) Mr. Caulk doesn’t identify what questions Mr. Wilkinson should have

asked, which witnesses Mr. Wilkinson should have further cross-examined, what

answers those questions would have produced, or how a different line of questioning

would have produced a different result. And, again, Mr. Caulk’s contentions are

belied by the record. The trial transcript shows that Mr. Wilkinson cross-examined

all of the State’s witnesses,112 and regularly consulted Mr. Caulk before concluding

109
State v. Powell, 2016 WL 3023740, at *25 (Del. Super. Ct. May 24, 2016).
110
Outten v. State, 720 A.2d 547, 557 (Del. 1998) (“Whether to call a witness, and how to
cross-examine those who are called are tactical decisions.”); see also Jean K. Gilles Phillips, and
Joshua Allen, Who Decides: The Allocation of Powers Between the Lawyer and the Client in a
Criminal Case?, 71 J. KAN. BAR ASS’N 28, 29 (2002) (citing Wainwright v. Sykes, 433 U.S. 72,
93 n.1 (1977)) (“[T]he United States Supreme Court [has] held that the attorney possesses the right
to decide certain strategic and tactical decisions, including what witnesses to call, whether and
how to conduct cross-examination, what trial motions should be made, and what evidence should
be introduced.”).
111
See Outten, 720 A.2d at 557 (quoting U.S. v. Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995)).
112
Trial Tr., Jan. 3, 2018, at 28 (cross-examination of Singh), 38 (cross-examination of
Johnstone), 47 (cross-examination of Agosto), 58 (cross-examination of Gifford), 75
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his cross-examinations.113 The Court recognized and explained all of this to

Mr. Caulk after one of his mid-trial outbursts:

Mr. Wilkinson’s job is to analyze the evidence in this case, ask
the questions he believes to be appropriate and I see him on a
regular basis coming back and consulting with you before he
finishes. You may believe that he needs to ask other questions
. . . but Mr. Wilkinson is a professional, he’s well-experienced.
He’s represented many criminal defendants. And he needs to
make the strategic choices . . . as to which questions to ask and
which questions to forego.114

(53) Mr. Wilkinson was not “merely present” at trial as Mr. Caulk describes

it. Rather, Mr. Wilkinson actively challenged the State’s case via examination of

the state’s witnesses and objections to the State’s evidence and questioning.115

(54) Mr. Caulk has failed to show that Mr. Wilkinson’s cross-examination

methods fell below an objective standard of reasonableness. And with this failure

alone, the Court need go no further in its Strickland examination.116

(cross-examination of Hunt), 84 (cross-examination of Parrott), 95 (cross-examination of Lynch),
112 (cross-examination of Gearhart), 138 (cross-examination of Merced), 158 (cross-examination
of Daly).
113
Id. at 32 (Mr. Wilkinson asking, “Your Honor, can I have a couple of moments?” consulting
Mr. Caulk and then stating, “I have no further questions.”), 40, 48, 59, 77, 98, 119, 137, 162, 165.
114
Id. at 64-65.
115
Id. at 18, 72, 129.
116
Hamby, 2005 WL 914462, at *2.

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 5. Failing to file motion to suppress at Caulk’s request.

(55) Mr. Caulk’s last claim of ineffective assistance of trial counsel is that

Mr. Wilkinson failed to file a motion to suppress as Mr. Caulk requested.117

But, Mr. Caulk does not identify just what evidence Mr. Wilkinson should have

sought to have suppressed. Nor does he address how any suppression motion would

have changed the outcome of his case. So, again, Mr. Caulk fails to substantiate a

claim for ineffective assistance of counsel.

(56) During his direct appeal, Mr. Caulk raised an issue with his May 8th

arrest. He claimed that his Miranda rights were violated when he was stopped,

frisked, and arrested.118 The Delaware Supreme Court rejected Mr. Caulk’s Miranda

claim finding that “[o]ther than Officer Lynch testifying that Caulk identified

himself when asked, Caulk d[id] not identify any statements he made to the police

that were admitted at trial.”119 So, there was nothing to suppress and the Court found

no plain error.

(57) Additionally, during the trial and on direct appeal, Mr. Caulk raised an

issue with the blue, hooded sweatshirt that was found at his house, claiming that it

did not match the clothing of the robber in the April 19th and May 4th surveillance

117
Def.’s Rule 61 Suppl. at 1.
118
Caulk, 2019 WL 1299962, at *2.
119
Id. at *3.

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videos.120 Mr. Wilkinson addressed the issue of the blue, hooded sweatshirt during

his closing argument, asking the Court to study the garment in the video and compare

it to the one admitted at trial: “[I]s that the same blue sweater that you see in the

video?”121 But as the Court noted in its query during argument, any quibble over the

blue, hooded sweatshirt was a mere aside because the surveillance videos of the

robberies showed the face of the person who committed them—Mr. Caulk.122 The

Delaware Supreme Court also found this issue of the blue, hooded sweatshirt to be

unavailing, noting that the question of “whether the hooded sweatshirt recovered at

the house was the same hooded sweatshirt as in the video went to the weight of the

evidence and not its admissibility.”123

(58) So, even if the Court assumes that Mr. Wilkinson was deficient in

failing to file a suppression motion regarding any statement or the sweatshirt, this

claim still fails under the Strickland prejudice analysis. Mr. Caulk was identified as

the robber through the surveillance footage, Mr. Singh’s identification, and his

120
Id. at *4; Trial Tr., Jan. 3, 2018, at 139-40.
121
Trial Tr., Jan. 5, 2018, at 40.
122
Id. at 40-41.
123
Caulk, 2019 WL 1299962, at *3.

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cell-tower data.124 Thus, it cannot be shown that there was a reasonably probability

that but for Mr. Wilkinson’s failure to suppress any other evidence, Mr. Caulk would

have been acquitted.

B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS—APPELLATE COUNSEL.

(59) Any claim of ineffective assistance of counsel against appellate

counsel is analyzed under the same Strickland framework.125 To prove deficient

performance, a claimant must show that his appellate counsel “was objectively

unreasonable in failing to find arguable issues to appeal—that is, that counsel

unreasonably failed to discover nonfrivolous issues and to file a merits brief raising

them.”126 The requirement here is “to show that a reasonably competent attorney

would have found one nonfrivolous issue warranting a merits brief.”127 This does

not require appellate counsel to “raise every nonfrivolous claim, but rather select

from among them in order to maximize the likelihood of success on appeal.”128

124
Id.; see also Trial Tr., Jan. 5, 2018, at 47 (The Court: “[b]ut even if we set aside Mr. Singh’s
[identification], if the Court looked at the video itself and said, I believe he has been properly
identified just from the video evidence that’s the same person, can’t that be sufficient?”).
125
Neal, 80 A.3d at 946 (citing Smith v. Robbins, 528 U.S. 259, 285 (2000)).
126
Id. (quoting Robbins, 528 U.S. at 285).
127
Id. (quoting Robbins, 528 U.S. at 288).
128
Id. (quoting Robbins, 528 U.S. at 288).

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 (60) If the Rule 61 movant can clear this first hurdle, he must then prove

resulting prejudice.129 “That is, he must show a reasonable probability that, but for

his counsel's unreasonable failure to file a merits brief, he would have prevailed on

his appeal.”130

(61) Here, Mr. Ceccotti presented no arguments on appeal.

Instead, he filed a motion to withdraw under Supreme Court Rule 26(c) and stated

that he made a “conscientious examination of the record and the law and conclude[d]

that the appeal [was] wholly without merit.”131

(62) Mr. Caulk now says Mr. Ceccotti was ineffective because: (i) by

moving to withdraw and filing a Rule 26(c) non-merit brief, Mr. Ceccotti forced

Mr. Caulk to proceed pro se, which placed him in an impossible position due to his

mental health issues, learning disabilities, and lack of legal training; 132 and (ii) by

failing to recognize, and raise on appeal, the trial court’s errors of failing conduct a

hearing to investigate the conflicts between himself and Mr. Wilkinson and failing

to continue the trial to allow for more time for the defense to prepare his case.

129
Id. at 947.
130
Robbins, 528 U.S. at 285.
131
PCR Counsel’s Mot. to Withdraw, App. Vol. II, at A388 (Appellate Counsel’s Mot. to
Withdraw) (D.I. 70); Caulk, 2019 WL 1299962, at *2.
132
Def.’s Mot. for Postconviction Relief at 3.

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According to Mr. Caulk, Mr. Ceccotti denied him of his Sixth Amendment right to

counsel on direct appeal.133 These claims will be addressed together.

(63) When reviewing a motion to withdraw under Rule 26(c), the Supreme

“Court must: (i) be satisfied that [appellate] counsel has made a conscientious

examination of the record and the law for arguable claims; and (ii) conduct its own

review of the record and determine whether the appeal is so totally devoid of at least

arguably appealable issues that it can be decided without an adversary

presentation.”134 On direct appeal, the Delaware Supreme Court:

. . . reviewed the record carefully and [ ] concluded that Caulk’s
appeal is wholly without merit and devoid of any arguably
appealable issue. [And was] also [ ] satisfied that Counsel ha[d]
made a conscientious effort to examine the record and the law
and ha[d] properly determined that Caulk could not raise a
meritorious claim in this appeal.135

(64) In order to bring a successful claim of ineffective assistance of counsel

against an appellate attorney that did not raise any issue on appeal,

Mr. Caulk must show that Mr. Ceccotti was objectively unreasonable in failing to

find an arguable issue to raise.136 To do so, Mr. Caulk need only show that a

133
Def.’s Rule 61 Suppl. at 4.
134
Caulk, 2019 WL 1299962, at *2.
135
Id. at *4.
136
Neal, 80 A.3d at 946.

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reasonably competent attorney would have found at least one appealable issue. 137

He hasn’t and for good reason. Neither Mr. Ceccotti, a full-time criminal appellate

practitioner, nor the panel of justices on Mr. Caulk’s direct appeal—after the

examinations described above—could locate “a meritorious claim” or “any arguably

appealable issue” to press.138 And so, Mr. Caulk has failed to demonstrate that

Mr. Ceccotti performed deficiently when prosecuting his direct appeal. And on that

basis alone his claims of ineffectiveness against Mr. Ceccotti fail.139

V. CONCLUSION

(65) Having reviewed the record carefully, the Court has concluded that

Mr. Caulk’s claims are without merit, and no other substantial grounds for relief

exists. He has not met his heavy burden under Strickland of demonstrating that his

attorneys’ representation fell below an objective standard of reasonableness and that,

but for their alleged errors, the outcome of his case would have been any different.

Accordingly, Mr. Caulk’s Motion for Postconviction Relief is DENIED and

Mr. Eaton’s Motion to Withdraw is GRANTED.

137
Id. at 948.
138
Caulk, 2019 WL 1299962, at *4.
139
Hamby, 2005 WL 914462, at *2.

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 SO ORDERED this 29th day of June, 2021.

Paul R. Wallace, Judge

Original to Prothonotary

cc: Timothy Maguire, Deputy Attorney General
Matthew C. Bloom, Deputy Attorney General
Edward Eaton, Esquire
Ralph D. Wilkinson, Esquire
Santino Ceccotti, Esquire
Mr. Robert P. Caulk, pro se

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