Stacey v. State, 358 A.2d 379 (Del. 1976). · Go Syfert
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Stacey v. State, 358 A.2d 379 (Del. 1976). Cases Citing This Book View Copy Cite
8 citation events (1 in the last 25 years) across 1 distinct court.
Strongest positive: Potter v. State (del, 1988-07-29)
Top citers, strongest first. 2 distinct citers. How cited ↗
examined Cited as authority (rule) Potter v. State (3×) also: Cited "see"
Del. · 1988 · confidence medium
Stacey v. State, Del.Supr., 358 A.2d 379, 380 (1976) (per curiam).
discussed Cited "see" Chao v. State
Del. · 2001 · signal: see · confidence high
See Potter v. State, Del.Supr., 547 A.2d 595, 598 (1988) ("The defendant has the burden of establishing a right to counsel at public expense, but he is entitled to a hearing on the issue of indigency.’’) (citing Stacey v. State, Del.Supr., *1068 358 A.2d 379, 380 (1976) (per curiam)).
Retrieving the full opinion text from the archive…
Thomas F. STACEY, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee
Supreme Court of Delaware.
Apr 26, 1976.
358 A.2d 379
■George C. Hering, III, and David H. Williams, of Morris, James, Hitchens & Williams, Wilmington, for defendant-appellant., Charles M. Oberly, III, Deputy Atty. Gen., Wilmington, for plaintiff-appellee.
Herrmann, Duffy, McNeilly.
Cited by 2 opinions  |  Published
PER CURIAM.

In this appeal from sentences for felony-theft, 11 Del.C. § 841, and conspiracy in the second degree, 11 Del.C. § 512, the sole issue is whether defendan was entitled to the assistance of counsel at trial. Defendant conducted his own defense before the jury and, after convictions were returned', he was sentenced to five years in prison. [1] He docketed his own appeal and we appointed counsel for him.

The State argues that defendant was not indigent and, therefore, was not entitled to counsel at public expense. [2] We[*380] agree that this is the critical issue, but a record was not made below as to indigency or non-indigency nor did the Court make an appropriate finding.

Presuming waiver of a right to counsel from a silent record is impermissible, Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Hales v. State, Del.Supr., 344 A.2d 229 (1975), and, in our view, it is equally impermissible to presume non-entitlement to counsel from such a record. Defendant has the burden of establishing his right to counsel, Hales v. State supra, but before proceeding to trial on a felony charge which may result in a prison sentence, the Trial Court has a duty to make a determination as to indigency, just as it must do on a waiver issue. And that requires an appropriate record.

Since a determination as to indi-gency was not made, the case will be remanded to the Superior Court for proceedings consistent herewith and report to this Court within sixty days. If the Trial Court finds that defendant was not indigent and thus not entitled to appointed counsel, the Court must also determine whether defendant had a reasonable opportunity to retain private counsel.

Jurisdiction is reserved.

1

. A co-defendant pleaded guilty, testified against defendant and was placed on probation for two years; he was also fined $300 and ordered to pay a ten percent surcharge to the Victim Compensation Fund, 11 Del.C. § 9012.

2

. The State argues also that the right-to-counsel issue was not raised in the Superior Court and that, in any event, defendant’s remedy is through a Rule 35(a) motion for post-eonvietion relief. In our view of the case, neither argument is persuasive: when indigency is shown, the right to counsel in defending a felony charge is constitutional and any failure to provide such assistance is plain error.