State v. Hall

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID No. 2111008640
)
DANIEL SHAWN HALL, )
)
Defendant. )

Submitted: December 2, 2024
Order Issued: January 3, 2025

ORDER1

This 3rd day of January 2025, upon preliminary consideration of Defendant
Daniel Shawn Hall’s pro se Motion to Withdraw Plea and the record in this matter,
it appears to the Court that:
1. On October 26, 2022, Defendant pled guilty to two counts of Dealing
in Child Pornography, one count of Sexual Exploitation of a Child, and one count of
Dangerous Crime Against a Child.2 Shortly thereafter, Defendant indicated his
desire to withdraw his guilty plea. As a result, Defendant has yet to be sentenced.
Because Defendant alleged ineffective assistance on the part of his counsel, Anthony
Capone, Esq., the Court granted Mr. Capone leave to withdraw on July 7, 2023, and
Alicia Porter, Esq., replaced him as counsel for Defendant on July 14, 2023.3
2. On November 15, 2023, Ms. Porter moved to withdraw as Defendant’s
counsel, citing a “breakdown in communication.”4 At a December 1, 2023 hearing

1
Citations in the form of “D.I ___” refer to docket items.
2
Plea Agreement and Truth-In-Sentencing Guilty Plea Form (D.I. 10).
3
D.I. 19.
4
See D.I. 24–25.
on Ms. Porter’s motion to withdraw as counsel, Ms. Porter indicated that she was
unable to draft Defendant’s motion to withdraw his guilty plea because she felt that
it was meritless.5 Defendant indicated that he was willing to proceed pro se with
Ms. Porter as standby counsel.6 The Court reserved ruling on Ms. Porter’s motion
pending a Court-ordered psychiatric evaluation to determine Defendant’s
competency to represent himself.7 The Court received the results of this evaluation,
which indicated that Defendant was competent, on January 9, 2024.8 On February
29, 2024, the Court granted Ms. Porter’s motion to withdraw as counsel and
appointed her as Defendant’s standby counsel.9
3. Defendant filed the instant Motion To Withdraw Plea on May 30, 2024.
Defendant asserts that his “plea lacked knowing and voluntary consent as he was not
aware of the elements of the crime and he feels he did not have adequate
representation throughout the proceedings.”10 The motion details various alleged
deficiencies of and grievances against Mr. Capone.
4. Mr. Capone filed an affidavit in response to Defendant’s motion on July
8, 2024. The State filed its response to Defendant’s motion on August 1, 2024. At
a control hearing on August 12, 2024, the Court granted Defendant’s request to file
a reply to Mr. Capone’s affidavit and to the State’s response. Defendant filed both
his reply to Mr. Capone’s affidavit and his reply to the State’s response on December
2, 2024.
5. In his July 8 affidavit, Mr. Capone responded to a number of
Defendant’s claims. Mr. Capone also indicated, however, that Defendant’s motion

5
Tr. of Criminal Mot., Dec. 1, 2023, 10:5–11:7 (D.I. 35).
6
Id. at 12:12–13:4.
7
See D.I. 26–27. This evaluation was prompted by Ms. Porter’s indication, at the hearing, that she
had concerns about Defendant’s competency. See Tr. of Criminal Mot., Dec. 1, 2023, 13:23–14:9.
8
See D.I. 28.
9
See D.I. 30–31.
10
Def.’s Mot. To Withdraw Guilty Plea ¶ 24 (D.I. 39).
2
“broadly . . . misrepresented, misquoted, and decontextualized substantial portions
of the attorney/client communications that he claims to recount[.]”11 Most relevantly
to this order, Mr. Capone added that these issues “cannot be effectively corrected or
contested without lifting attorney/client privilege.”12
6. While Defendant has not affirmatively asserted attorney-client
privilege as to his communications with Mr. Capone, the Court finds that Defendant
has waived that privilege by putting his interactions with his former counsel at
issue.13 A party should not be permitted to make “bare, factual allegations, the
veracity of which are central to the parties’ dispute, and then assert the attorney-
client privilege as a barrier to prevent a full understanding of the facts disclosed.” 14
In other words, a party cannot use the privilege both “offensively and defensively.”15
Here, Defendant injected privileged communications into the litigation. Waiver of
privilege as to those communications is thus required as a matter of fairness.16
7. Although “in the abstract, waiver is viewed as the voluntary and
intentional relinquishment of a known right . . . waiver of the attorney client privilege
may be implicit, even if contrary to the party’s actual intent.”17 Courts will find
implicit waiver when the party against whom waiver is asserted either introduces the

11
Capone Aff. ¶ 7 (D.I. 45).
12
Id.
13
See Tackett v. State Farm Fire and Cas. Ins. Co., 653 A.2d 254, 259–60 (Del. 1995).
14
Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 2008 WL 498294, at *4 (Del. Super. Jan. 14, 2008)
(quoting Tackett, 653 A.2d at 259).
15
Syngenta Crop Production, LLC v. Travelers Casualty and Surety Co., 2024 WL 3565985, at *3
(Del. Super. July 24, 2024) (quoting Hoechst Celanese Corp. v. Natl. Union Fire Ins. Co. of
Pittsburgh, 623 A.2d 1118, 1125 (Del. Super. 1992)); accord Restanca, LLC v. House of Lithium,
Ltd., 2023 WL 4306074, at *14 (Del. Ch. June 30, 2023) (“The court will not allow such tactics,
in which a party seeks to use privilege both as a ‘sword’ and as a ‘shield.’”).
16
Tackett, 653 A.2d at 259 (“Waiver of the attorney client privilege may be implicit, even if
contrary to the party’s actual intent . . . ‘where it would be unfair to deny the other party an
opportunity to discover other relevant facts with respect to that subject matter.’” (quoting Hercules
Inc. v Exxon Corp., 434 F. Supp. 136, 156 (D. Del. 1977)).
17
Id. at 259 (internal citation omitted).
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contents of a confidential communication18 or puts a factual question at issue that
requires disclosure of a confidential communication to truthfully resolve;19 denying
disclosure of those communications would be unfair to the other party;20 and
upholding the privilege would place the other party at a distinct disadvantage in the
litigation.21 This is an “exacting standard.”22 Though the question of waiver is a
fact-specific inquiry entrusted to the trial court’s discretion,23 the Supreme Court has
indicated that trial judges should be careful to limit the disclosure of privileged
information to the scope of the waiver.24
8. Defendant has put at issue a number of attorney-client communications
to which his former counsel is unable to adequately respond absent a finding of
waiver. Unaddressed in Mr. Capone’s affidavit are the following allegations by
Defendant:
a) On March 7, 2023, Counsel “admitted to never seeing the evidence”
and merely took the prosecutor’s word for what it showed.25
b) Counsel did not permit Defendant to confer with his mother, upon
whom he is dependent for major decisions, prior to accepting the plea.26

18
Alaska Elec. Pension Fund v. Brown, 988 A.2d 412, 419 (Del. 2010) (citation omitted). See also
Tackett, 653 A.2d at 260 (“the disclosure of even a part of the contents of a privileged
communication surrenders the privilege as to those communications” if partial disclosure would
put the other party at a “distinct disadvantage.”) (quoting Citadel Holding Corp. v. Roven, 603
A.2d 818, 825 (Del. 1992)).
19
Brown, 988 A.2d at 419 (citation omitted). When the asserted waiver involves an attorney’s
mental impressions, it must be shown that the facts at issue are pivotal and that there is a
compelling need for disclosure. Tackett, 653 A.2d at 262; Williams Union Boiler v. Travelers
Indem. Co., 2003 WL 22853534, at *1 (Del. Super. July 31, 2003).
20
Tackett, 653 A.2d at 259.
21
Id. at 260.
22
Id. at 259.
23
Brown, 988 A.2d at 419–20; Wal-Mart, 2008 WL 498294, at * 4.
24
Moyer v. Moyer, 602 A.2d 68, 73 (Del. 1992) (where appellant claimed that he had not authorized
his attorney to enter into an oral settlement agreement, the family court erred by allowing testimony
not just as to the instructions appellant gave with regard to that agreement, but also the reasons he
gave for his failure to sign a subsequent written agreement, and the advice his attorney provided).
25
Def.’s Mot. To Withdraw Plea ¶ 17.
26
Def.’s Mot. To Withdraw Plea ¶ 24(j); Reply to Capone ¶ 11(a) (D.I. 59).
4
c) Prior to the plea, counsel told Defendant that at least some of
Defendant’s conduct, while inappropriate, was not illegal.27 Counsel
therefore implied that Defendant would only be pleading to the child
pornography charges, because his other misconduct was “no big
deal.”28
d) Counsel did not explain, at or before Defendant’s October 26, 2022
final case review and plea, that Defendant would be subject to tier 3 sex
offender registration or what such registration entailed.29
e) At the final case review, counsel told Defendant that retaining a private
attorney “would offend the judge and make things worse” because the
judge “would likely make an example of” Defendant and “give [him]
the full 50 years.”30
f) Counsel never explained the minimum and maximum fines that the
Court could impose pursuant to Defendant’s plea.31

9. The Third Circuit has found waiver on analogous facts. In Livingstone
v. North Belle Vernon Borough, a civil rights suit under 42 U.S.C. § 1983, the
plaintiff attempted to invalidate an agreement that released any potential civil claims
in exchange for dismissal of the criminal case against her.32 She asserted that the
agreement was involuntary.33 To evaluate the plaintiff’s argument, the district court
held a hearing at which her prior counsel testified.34 On appeal, the Third Circuit
held that the plaintiff had waived attorney-client privilege by raising her
voluntariness claim.35 “[T]he advice of counsel is an explicit, and important,
element of the voluntariness analysis,” the court wrote.36 The plaintiff’s “assertion
that she did not appreciate the . . . agreement’s legal implications is tantamount to a

27
Def.’s Mot. To Withdraw Plea ¶¶ 15, 24(h).
28
Id. at ¶ 17(h).
29
Id. at ¶ 24(c), (d).
30
Id. at ¶ 24(l).
31
Id. at ¶ 24(u).
32
91 F.3d 515, 519 (3d Cir. 1996).
33
Id. at 537.
34
Id.
35
Id.
36
Id. (citing Town of Newton v. Rumery, 480 U.S. 386, 394 (1987) (O’Connor, J., concurring)).
5
claim that her attorney did not give her accurate legal advice. It would be unfair to
allow her to make this claim without permitting the opposing parties to investigate
her attorney’s version of the relevant events.”37
10. Though this case is distinguishable from Livingstone in some regards,
these distinctions do not negate the applicability of the Third Circuit’s logic.
Defendant has effectively asserted, among other things, that defective
communications with his attorney rendered his plea neither knowing nor voluntary.38
It would be unfair to the State, as well as put up a barrier to a full understanding of
the facts, to prohibit disclosure of Defendant’s attorney’s version of events.
11. For the foregoing reasons, the Court finds that Defendant has waived
privilege as to communications related to each allegation of ineffective assistance of
counsel or misconduct on the part of Mr. Capone, to the extent that said allegations
are used to support Defendant’s Motion To Withdraw Plea. These allegations
include, but are not limited to, those listed in Paragraph 8, supra.39 The Court will
hold a control hearing with the parties on February 11, 2025, to discuss how best to
proceed, i.e., through a supplemental affidavit from Mr. Capone, or an evidentiary
hearing, or both.

37
Id. (citing United States v. Bilzerian, 926 F.2d 1285. 1292 (2d Cir. 1991), cert. denied, 502 U.S.
813 (1991)).
38
See Def.’s Reply To State’s Response To Mot. To Withdraw Plea 5–6 (D.I. 58) (alleging that
Defendant’s plea was involuntary and citing, in part, advice of counsel for this involuntariness).
39
As noted supra at paragraph 5, Mr. Capone has responded in his affidavit to certain allegations
other than those listed in paragraph 8. It may be appropriate, given the Court’s finding of waiver,
for Mr. Capone to further respond to those other allegations as well.
6
IT IS SO ORDERED.

NEP/tls
Via Email and State Mail
oc: Prothonotary
cc: Kristina G. Bensley, DAG
Erik C. Towne, DAG
Anthony J.W. Capone, Esquire
Alicia A. Porter, Esquire
Daniel S. Hall, Defendant Pro Se (JTVCC, 1181 Paddock Rd., Smyrna, DE 19977)

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