Opinion
No. 377, 2007.
Submitted: August 14, 2007.
Decided: October 24, 2007, Corrected: November 20, 2007.
Court Below — Superior Court of the State of Delaware, in and for New Castle County, Cr. ID 0403012959.
Before HOLLAND, BERGER, and JACOBS, Justices.
ORDER
This 20th day of November, 2007, upon consideration of the appellant's opening brief, the State's motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Marcus Johnson, filed this appeal from the Superior Court's denial of his motion for postconviction relief. The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Johnson's opening brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that a Superior Court jury convicted Johnson in October 2005 of multiple drug-related offenses, including trafficking in cocaine and possession with intent to deliver cocaine. This Court affirmed his convictions and sentence on direct appeal. Johnson filed his original motion for postconviction relief in January 2007, as well as two subsequent amendments to the motion. He raised four issues in the original motion he filed in Superior Court: (i) the evidence was insufficient to sustain his convictions; (ii) the State made improper references to his decision not to testify; (iii) his trial counsel was ineffective; and (iv) his convictions violated double jeopardy principles. His two amendments expanded his ineffectiveness claims and his challenge to the sufficiency of the evidence and also raised a claim that his confrontation rights were violated. The Superior Court denied all of Johnson's claims. This appeal followed.
Johnson v. State, 2006 WL 3759403 (Del. Dec. 22, 2006).
Although the State contends that Johnson filed a motion for postconviction relief while his direct appeal was pending, the Superior Court docket does not reflect the filing of such a motion. The docket does reflect an order of the Superior Court, dated July 14, 2006, denying a motion for postconviction relief or modification of sentence. It appears, however, that the July 14 order was addressed solely to Johnson's case identified by the Cr. ID number 0204002388 but inadvertently was docketed as well in Johnson's present case, identified by Cr. ID number 0403012959.
(3) In his opening brief on appeal, Johnson again argues that the evidence was insufficient to sustain his convictions and that his trial counsel was ineffective. He also raises two additional issues, which were not asserted in his postconviction motion. We will not consider these two new claims for the first time on appeal. Moreover, we will not consider any claims that Johnson may have raised below but did not brief on appeal.
Johnson's two new arguments, which we will not consider, are: (i) the Superior Court failed to properly record sidebar conferences at trial; and (ii) once the State dismissed the charges of conspiracy and possession of cocaine, the remaining charges also should have been dismissed.
See Del. Supr. Ct. R. 8.
Somerville v. State, 703 A.2d 629, 631 (Del. 1997) (holding that claims not briefed on appeal are deemed waived).
(4) With respect to Johnson's challenge to the sufficiency of the evidence, the Superior Court held that this claim was procedurally barred because Johnson had failed to raise it on direct appeal. We agree. Superior Court Criminal Rule 61(i)(3) provides that any ground for postconviction relief that was not previously raised in the proceedings leading to the judgment of conviction is thereafter barred unless the defendant can show cause for the procedural default and prejudice. Johnson's opening brief on appeal offers no explanation why he failed to raise his sufficiency of the evidence argument in the proceedings leading to the judgment of conviction. Accordingly, we find no abuse of the Superior Court's discretion in holding this claim to be procedurally barred.
Super. Cr. Crim. R. 61(i)(3).
See Outten v. State, 720 A.2d 547, 551 (Del. 1998).
(5) Johnson next asserts that his trial counsel was ineffective because: (i) counsel misinformed Johnson about the mandatory minimum prison sentence that he faced if convicted, thus leading Johnson to choose to go to trial rather than accept a plea offer; (ii) counsel inaccurately stated on appeal that the drugs were found under the passenger seat, rather than on the passenger seat; and (iii) counsel failed to request a jury instruction that Johnson could not be found "liable" once the State dismissed the conspiracy charge on the second day of trial. Johnson's last claim of ineffectiveness was not raised in his postconviction petition in the Superior Court. Accordingly, we will not consider that new ground for the first time on appeal.
Del. Supr. Ct. R. 8.
(6) To prevail on a claim of ineffective assistance of counsel, a petitioner is required to establish: (a) that defense counsel's representation fell below an objective standard of reasonableness; and (b) that, but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the case would have been different. There is a strong presumption that counsel's conduct was professionally reasonable. Moreover, the defendant must assert concrete allegations of actual prejudice or else risk summary dismissal.
Id. at 551-52 (citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
Albury v. State, 551 A.2d 53, 59 (Del. 1988).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
(7) In this case, the record supports the Superior Court's conclusion that Johnson's ineffectiveness claims lacked merit. Although defense counsel initially misinformed Johnson about the potential mandatory minimum sentence he faced if convicted, it is clear that counsel's mistake was later corrected. Contrary to his contention, the record supports the conclusion that Johnson was present in the courtroom with his counsel prior to the start of trial when a discussion took place with the trial judge regarding the mandatory minimum sentence Johnson faced if convicted. Johnson was informed that he was facing a mandatory minimum sentence of five years. Moreover, the transcript also reflects that the State's plea offer to the trafficking charge, carrying a two-year mandatory minimum sentence, was still available to Johnson. Johnson proceeded to trial. Accordingly, under the circumstances, Johnson could not establish any prejudice from counsel's initial error.
(8) Johnson also argues that his counsel was constitutionally ineffective on appeal for stating that the drugs were found under the passenger seat rather than on top of the passenger seat. Even if we assume that counsel misstated this fact in his opening brief on appeal, Johnson cannot establish any prejudice from this error because it would not have changed the outcome of his appeal. The facts at trial established that Johnson was sitting in the driver's seat of the vehicle in which the drugs were found. Johnson's passenger testified at trial that the drugs did not belong to him. Regardless of whether the drugs were found under the passenger seat or on top of the passenger seat, the evidence at trial was sufficient to support Johnson's convictions. The location of the drugs on top of the passenger seat would not have changed the Court's conclusion on appeal that "this was not a very close case." Accordingly, we find no merit to Johnson's second claim of ineffective assistance of counsel.
Johnson v. State, 2006 WL 3759403 (Del. Dec. 22, 2006).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.