Dixon v. State

ON MOTION FOR REHEARING EN BANC

Before CHRISTIE, C.J., HORSEY, MOORE, WALSH and HOLLAND, JJ. (constituting the Court en banc).

This 18th day of October, 1990, the Court has before it the State’s motion for rehearing en banc. In that motion, the State requests this Court to re-examine the factual findings of the Superior Court and the legal principles which are applicable to Dixon’s present claim.

In its motion, the State correctly asserts two basic tenets of appellate review. First, the factual findings of the trial court, which are supported by competent evidence, are not disturbed on appeal. Albury v. State, Del.Supr., 551 A.2d 53, 60 (1988). Second, the burden is on the appellant to provide a sufficient record to review any issue which is raised on appeal. Tricoche v. State, Del.Supr., 525 A.2d 151, 154 (1987).

The record reflects that, according to Dixon’s trial attorney, he sent Dixon two letters. Dixon denied receiving the second letter. The Superior Court concluded that Dixon was generally not a credible witness and specifically rejected Dixon’s testimony denying receipt of the second letter. Consequently, for the purpose of appellate review, the credible evidence in the record consisted, inter alia, of the trial court’s assessment of the witnesses’ testimony and both letters from Dixon’s attorney.

The first letter to Dixon stated, in part:

Since you’re unable to afford my services to represent you on your appeal, I suggest you immediately contact the office of The Public Defender to represent you on your appeal.
I believe you have several good arguments to raise on appeal that could result in a reversal of your conviction. Therefore, please act promptly to secure the services of the Public Defenders Office to pursue your appeal.

*1118The first letter from Dixon’s attorney clearly reflects Dixon’s desire to appeal. The letter states that, in the opinion of Dixon’s trial attorney, an appeal would be meritorious. The letter speaks in terms of representation “on” your appeal, not “if” you appeal. The letter reflects that Dixon evidently could not afford to pay his attorney any more money.1 Therefore, the trial attorney advised Dixon to secure the services of the Public Defender to “pursue your appeal” not “if” you decide to pursue your appeal.

The second letter to Dixon from his trial attorney reflects that, as far as the attorney knew, Dixon had not made a decision about representation on appeal. It also reflects the trial attorney’s impression that Dixon’s choice of representation on appeal would determine who filed the notice of appeal.

After hearing the testimony of Dixon and his trial attorney and reviewing both of the letters, the Superior Court found that the only unresolved issue was Dixon’s decision concerning his representation on appeal not whether Dixon desired to appeal. Consequently, the Superior Court stated:

Even though the better practice would have been for the attorney to take the appeal and then worry about representation at a later time, nevertheless, the lawyer made it clear to the defendant that he had to tell the lawyer just what he wanted to do in reference to his [representation on] appeal.

The Superior Court would not have stated that Dixon’s trial attorney should have taken an appeal unless it had concluded that was Dixon’s desire.

The Superior Court’s finding that Dixon was indecisive about legal representation on appeal served as a faulty factual predicate for the Superior Court’s ruling. The Superior Court was of the view that, despite Dixon’s desire to appeal, Dixon’s indecision about representation on appeal excused the trial attorney from filing the notice of appeal. However, Dixon’s decision to appeal was the only decision Dixon was required to make.

The decision about Dixon’s representation on appeal had already been made by this Court. Dixon’s trial attorney had a continuing obligation to represent Dixon on appeal, whether or not he was paid an additional fee, and until such time as he was permitted to withdraw. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); Braxton v. State, Del.Supr., 479 A.2d 831 (1984); Erb v. State, Del. Supr., 332 A.2d 137, 139 (1974); Supr.Ct.R. 26(a). Once Dixon expressed a desire to appeal, Dixon’s trial attorney was required to file the notice of appeal.

The State’s motion for rehearing en banc is premised upon the assumption that the Superior Court concluded that Dixon was silent about his desire to appeal. However, the record reflects that the Superior Court found that Dixon was silent about who would represent him on appeal, not his desire to appeal. The panel’s opinion in this matter applied well-settled principles of law to the Superior Court’s undisputed findings of fact. The State’s motion for rehearing en banc is DENIED.

. The Superior Court’s opinion also states that Dixon’s attorney testified he was paid $3,500 but "an additional fee had to be paid for representation on appeal."