IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

)

) Def. I.D. # 1512017983

 v. )

)

)

DAVID ELDER, )

)

Defendant. )

Submitted: November 9, 2023

Decided: December 18, 2023

On Remand from the Supreme Court of Delaware

For Evidentiary Hearing on Defendant’s Motion to Proceed Pro Se 

on Appeal of Denial of Motion for Postconviction Relief

ORDER

Casey L. Ewart, Esquire, Deputy Attorney General, Department of Justice, 13 The 

Circle, Georgetown, DE 19947; Attorney for State of Delaware.

Natalie S. Woloshin, Esquire, Woloshin Lynch & Associates, P.A., 3200 Concord 

Pike, Wilmington, DE 19803; Attorney for Defendant David Elder.

David L. Elder, SBI # 00227109, James T. Vaughn Correctional Center, 1181 

Paddock Road, Smyrna, DE 19977

KARSNITZ, R. J.
2

Procedural Background

On December 15, 2017, after a second jury trial,1 David Elder (“Petitioner” or 

“Mr. Elder”) was convicted of First Degree Rape, Second Degree Rape, First Degree 

Burglary, and wearing a disguise during the commission of a felony. On January 26, 

2018 he was sentenced to life on the first three charges and five years at Level 5 on 

the last charge. On December 3, 2018, his conviction was upheld by the Delaware 

Supreme Court on direct appeal. 

On December 12, 2018, Mr. Elder filed a pro se Rule 61 Motion and a 

supporting Memorandum. After a delay occasioned by the COVID pandemic and 

the appointment of Postconviction Counsel, on November 14, 2022, I allowed Mr. 

Elder to file a pro se Supplemental Petition and Appendix (the Rule 61 Motion, the 

Memorandum, and the Supplemental Petition and Appendix, collectively, the “Pro

Se Motion”), even though at that time he was represented by Postconviction 

Counsel.

2

On November 30, 2022, Postconviction Counsel filed an Amended Rule 61 

Petition (the “Motion”). 

1 The first trial resulted in a hung jury.

2 Mr. Elder filed a number ofsubmissions with this Court despite the fact that he wasrepresented by

counsel (e.g., his pro se Motion to Amend his Motion for Post-Conviction Relief, which he filed on

or about February 1, 2020 despite the fact that Postconviction Counsel had already been appointed on

his behalf). I forwarded these pro se filings on to Postconviction Counsel. 
3

On March 27, 2023, Mr. Elder filed a pro se request for an evidentiary hearing, 

which I forwarded to Postconviction Counsel.

The State’s Answer was filed on May 30, 2023. 

On July 10, 2023, Mr. Elder filed a pro se Reply to the State’s Answer, which 

I forwarded to Postconviction Counsel. 

The Reply from Postconviction Counsel was filed on August 17, 2023.

On September 13, 2023, I denied Mr. Elder’s Rule 61 Motion and his request 

for an evidentiary hearing.

Mr. Elder timely filed an appeal of my decision with the Delaware Supreme 

Court. Before the filing of his opening brief, Mr. Elder filed a motion and affidavit 

asking to discharge his attorney and to represent himself in the appeal, 

notwithstanding his right to counsel.3 Mr. Elder requested that the matter be

remanded to this Court for an evidentiary hearing so that he might demonstrate 

that his request was made knowingly, intelligently, and voluntarily.4 On October 

19, 2023, the Supreme Court granted Mr. Elder's request for a remand for an

3 Super. Ct. Crim. R. 61(e)(2).

4 Mr. Elder understands that there will be no further action taken on his appeal until the matter 

is returned by this Court to the Supreme Court from remand.
4

evidentiary hearing concerning his request to proceed pro se and returned the case 

to me,5 with jurisdiction retained, to make specific inquiries of Mr. Elder6

Evidentiary Hearing – Findings of Fact

On November 9, 2023, upon notice to Mr. Elder, I held the evidentiary 

hearing required by the Supreme Court. Both the Deputy Attorney General 

representing the State and Postconviction Counsel for Mr. Elder were present. I 

asked Mr. Elder all the questions mandated by the Supreme Court, and ascertained 

the following facts:

(1) Mr. Elder has not retained private counsel to represent him 

on appeal.

(2) Mr. Elder is indigent.

(3) Mr. Elder’s educational background and personal 

experience have given him a good understanding of the 

criminal justice system, including the trial process. Specifically, 

Mr. Elder understands his right to court-appointed counsel to

assist him on appeal.

(4) Mr. Elder understands that he must either accept

5 Supreme Court Rules 19(c) and 26(d)(iii).

6 These are the inquiries the State found relevant in Watson v. State, 564 A.2d 1107 (Del. 1989).
5

representation on appeal by his present postconviction counsel or

proceed pro se.

(5) Mr. Elder freely, knowingly, and voluntarily waives his right 

to the assistance of his postconviction counsel. He explained that 

he has no negative feelings about his postconviction counsel; 

however, she is legally and ethically constrained from making 

certain arguments and raising certain issues on appeal, and he is 

not. In connection with this latter inquiry, I determined the 

following:

(a) Mr. Elder has not consulted with any other person, 

including any other attorney, in making his decision to 

waive his right to counsel.

(b)Mr. Elder understands that the appellate process 

involves the application of rules and procedures that 

may prove difficult for a non-lawyer to understand.

(c) Mr. Elder understands that notwithstanding his lack of 

legal training, he will be required to comply with all

pertinent rules of the Supreme Court.

(d)Mr. Elder understands that noncompliance with 
6

pertinent rules of the Supreme Court may delay or

prejudice his appeal.

(e) Mr. Elder understands that the allowance of oral 

argument is discretionary with the Court, and that the 

Court’s practice in criminal cases is not to grant oral 

argument to pro se litigants.

(f) Mr. Elder understands that, if his waiver of counsel is 

accepted, he will not thereafter be permitted to interrupt

or delay the appellate process to secure the assistance 

of court-appointed counsel simply because he has 

changed his position.

I also made additional inquiries of Mr. Elder, and ascertained the 

following additional facts:

(1)Mr. Elder has been treated at the Delaware Psychiatric Center for 

depression. Although he initially had a psychotic reaction to 

medication there, he is now doing well on Wellbutrin.

(2) Mr. Elder used cocaine in the past but has been “clean and sober” for 

the last ten years.

(3)Mr. Elder has no issues with alcohol.

(4)Mr. Elder was married for over five years. He has six grown children 
7

by six different mothers.

Analysis – Conclusions of Law

Both Delaware and Federal cases7agree that the key test for voluntary 

waiver of counsel is not whether the defendant is well versed in the substantive 

law and procedural rules of Rule 61 and appellate practice. As a non-lawyer, by 

definition, Mr. Elder is not. Rather, the key question is whether, with his 

background, experience and conduct, Mr. Elder understands the consequences 

of proceeding pro se, particularly the disadvantages.

The seminal case on the constitutional right to proceed pro se is Paretta v. 

California.

8 The majority held that a defendant in a State criminal trial has a 

constitutional right under the Sixth Amendment to proceed without counsel 

when he voluntarily and intelligently chooses to do so, and the State may not 

force a lawyer upon him when he insists that he wants to conduct his own 

defense. 

In addition to Watson, the Delaware courts have consistently permitted 

pro se representation in criminal cases. In Briscoe v. State,

9

the defendant 

requested new counsel on the eve of trial, and the Superior Court permitted him 

7 Some of these cases address the right to proceed pro se at trial. However, the same core principles

should apply by extension to pro se representation on appeal.

8

422 U.S. 806 (1975).

9

606 A.2d 103 (Del. 1982).
8

to proceed pro se without advising him of the hazards of self-representation. His 

conviction was reversed by the Delaware Supreme Court, which held that the 

defendant did not knowingly and intelligently waive his right to counsel. The 

invalid waiver was not cured by permitting court-appointed counsel to continue 

in his role as standby counsel.

In Stigars v. State,

10 the Superior Court denied the defendant the right to 

defend himself. Our Supreme Cort stated that, although the right to selfrepresentation in a criminal proceeding is fundamental, the exercise of that right 

is not unqualified. In this case, however, the colloquy with the trial judge had 

established the defendant’s voluntary waiver of counsel and his understanding 

of the risks of self-representation. The Court therefore reversed defendant’s 

conviction and remanded for retrial.

11

A Third Circuit case is quite helpful in defining the parameters of the colloquy 

that must precede the acceptance of a request for self-representation. In United States 

v. Peppers,

12 the Court referenced the Federal Judicial Center’s Benchbook for U.S. 

District Court Judges, § 1.02 (4th ed. 2000) and posited 14 potential questions for 

such a colloquy:

1. Have you ever studied law?

10 674 A.2d 477 (Del. 1996).

11 See also Hartman v. State, 918 A.2d 1138 (Del. 2007).

12 302 F.3d 120 (3d Cir. 2002).
9

2. Have you ever represented yourself in a criminal action?

3. Do you understand that you are charged with these crimes: [state the crimes with 

which the defendant is charged]?

4. Do you understand that the U.S. Sentencing Commission has issued sentencing 

guidelines that will be used in determining your sentence if you are found guilty?

5. Do you understand that if you are found guilty of the crime charged in Count 1, 

the Court must impose an assessment of $___, and could sentence you to as many 

as ___ years in prison and fine you as much as $ ___? [Ask defendant this question 

for each count of the indictment or information.]

6. Do you understand that if you are found guilty of more than one of these crimes, 

this Court can order that the sentences be served consecutively, that is, one after 

another?

7. Do you understand that if you represent yourself, you are on your own? I cannot 

tell you—or even advise you—as to how you should try your case.

7a. Do you know what defenses there might be to the offenses with which you are 

charged? Do you understand that an attorney may be aware of ways of defending 

against these charges that may not occur to you since you are not a lawyer? Do you 

understand that I cannot give you any advice about these matters?

8. Are you familiar with the Federal Rules of Evidence?

8a. Do you understand that the Federal Rules of Evidence govern what evidence may 

or may not be introduced at trial and that, in representing yourself, you must abide 

by those rules?

9. Are you familiar with the Federal Rules of Criminal Procedure?

9a. Do you understand that these rules govern the way a criminal action is tried in 

federal court? Do you understand that you must follow these rules?

10. Do you understand that you must proceed by calling witnesses and asking them 

questions, and that, except when and if you yourself testify, you will not be permitted 

to tell the jury matters that you wish them to consider as evidence?
10

10a. Do you understand that it may be much easier for an attorney to contact 

potential witnesses, gather evidence, and question witnesses than it may be for you?

11. I must advise you that in my opinion a trained lawyer would defend you far better 

than you could defend yourself. I think it unwise of you to try to represent yourself. 

You are not familiar with the law. You are not familiar with court procedure. You 

are not familiar with the rules of evidence. I strongly urge you not to try to represent 

yourself.

12. Now, in light of the penalties that you might suffer if you are found guilty, and 

in light of all of the difficulties of representing yourself, do you still desire to 

represent yourself and to give up your right to be represented by a lawyer?

13. Are you making this decision freely, and does it reflect your personal desire?

14. Do you have any questions, or do you want me to clarify or explain further 

anything that we have discussed here?

Although some of these questions are inapplicable to a Delaware criminal appeal, at 

the November 9, 2023 evidentiary hearing I asked some variation of all of the 

pertinent questions and adapted others for this case. Based on Mr. Elder’s answers, 

I find that, under applicable law, he is voluntarily waiving his right to counsel on 

appeal and understands the risks of self-representation.

Conclusion

Based on my colloquy with Mr. Elder at the evidentiary hearing and the facts 

elicited therein, and based upon my conclusions of law, I find that Mr. Elder’s 
11

request to represent himself is freely, knowingly, and intelligently made, and that he 

understands the consequences of proceeding on appeal pro se.

13

This case is returned to the Supreme Court.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary

Lisa A. Dolph, Clerk of Delaware Supreme Court

13 For the record, postconviction counsel has expressed her willingness to act as back-up counsel 

for Mr. Elder if the Supreme Court deems it necessary or appropriate.