Opinion
No. 602, 2011
02-27-2012
PAUL ROBERTSON, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee.
Court Below—Superior Court
of the State of Delaware,
in and for New Castle County
Cr. ID Nos. 91000738DI
Before STEELE, Chief Justice, HOLLAND, and RIDGELY, Justices.
ORDER
This 27 day of February 2012, upon consideration of the appellant's opening brief filed pursuant to Supreme Court Rule 26(c), as well as the State's response and motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Paul Robertson (Robertson), was convicted in 1991 of two counts of first degree felony murder and related offenses and was sentenced to life imprisonment. With the exception of two counts of first degree conspiracy, this Court affirmed Robertson's convictions on appeal. Robertson filed his first petition for postconviction relief, pro se, in June 2008, fifteen years after his convictions became final. After receiving the State's response, the Superior Court appointed counsel to represent Robertson in the postconviction proceeding. Counsel was permitted to file an amended motion for postconviction relief in April 2009 and was permitted to supplement the motion with an additional claim in June 2009. The Superior Court dismissed one of Robertson's claims in an order dated December 14, 2010. Thereafter, the Superior Court referred Robertson's remaining claims to a Commissioner. The Commissioner issued a report on September 28, 2011 recommending that Robertson's petition be dismissed because his claims were untimely and/or previously adjudicated. The Superior Court adopted the recommendation and dismissed Robertson's claims by order dated October 24, 2011. This appeal followed.
The jury acquitted Robertson of two counts of intentional murder.
Robertson v. State, 630 A.2d 1084 (Del. 1993).
One of Roberston's pro se claims argued that the trial court had erred in failing to give an accomplice liability instruction consistent with this Court's holding in Allen v. State, 970 A.2d 203 (Del. 2009). Thereafter, this Court issued its opinion in Richardson v. State, 3 A.3d 233 (Del. 2010), holding that the rule announced in Allen did not apply retroactively. Consequently, the Superior Court separately dismissed Robertson's Allen claim.
(2) Robertson's counsel on appeal has filed a brief and a motion to withdraw pursuant to Rule 26(c). Robertson's counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. By letter, Robertson's attorney informed him of the provisions of Rule 26(c) and provided Robertson with a copy of the motion to withdraw and the accompanying brief. Robertson also was informed of his right to supplement his attorney's presentation. Robertson has raised several issues for this Court's consideration. The State has responded to Robertson's points, as well as to the position taken by Robertson's counsel, and has moved to affirm the Superior Court's judgment.
(3) The standard and scope of review applicable to the consideration of a motion to withdraw and an accompanying brief under Rule 26(c) is twofold: (a) this Court must be satisfied that defense counsel has made a conscientious examination of the record and the law for arguable claims; and (b) this Court must conduct its own review of the record and determine whether the appeal is so totally devoid of at least arguably appealable issues that it can be decided without an adversary presentation.
Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967).
(4) In his response to his counsel's Rule 26(c) brief, Robertson essentially raises two claims of ineffective assistance of counsel. First, he contends that his trial counsel was ineffective for failing to object to the trial court's jury instruction on felony murder. Second, he contends that his counsel failed to understand the law of accomplice liability, which erroneously led him not to request that the jury be instructed on lesser included offenses. To the extent that Robertson raised other issues in the Superior Court, we deem those issues waived for his failure to brief them on appeal.
Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). It appears that Robertson's postconviction claims were presented in several different motions and amendments filed in the Superior Court. At least one of those filings raised a claim challenging the sufficiency of the evidence to sustain his convictions. Robertson has not raised that issue on appeal. We, therefore, deem it waived. Even if he had properly briefed this issue, it is clear that the claim is procedurally barred by Rule 61(i)(4) because it was previously adjudicated on direct appeal when this Court found sufficient evidence to sustain his convictions. See Robertson v. State, 630 A.2d 1084, 1095 (Del. 1993).
(5) In reviewing the Superior Court's denial of postconviction relief, this Court first must consider the procedural requirements of Rule 61 before it may consider the merits of any postconviction claims. Superior Court Rule 61(i) bars claims that: (1) were not filed within one year of the final judgment of conviction or within one year of a newly recognized, retroactively applicable right; (2) were not previously asserted in any prior postconviction proceeding; (3) were not asserted at trial or on direct appeal unless the petitioner can establish cause for the default and prejudice; or (4) were formerly adjudicated. Rule 61(i)(5) provides that the bars to relief found in Rule 61(i)(1), (i)(2), and (i)(3) are not applicable to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice due to a constitutional violation that undermined the integrity of the proceedings leading to the conviction.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Because Robertson's convictions became final before July 1, 2005, when the amendment to Rule 61(i)(1) became effective, a three-year limitations period applied to his claims.
See Del. Super. Ct. Crim. R. 61(i) (2012).
Id. 61(i)(5).
(6) In this case, Robertson's claims of ineffective assistance of counsel were raised more than fifteen years after his convictions became final. Thus, Robertson's claims are time-barred unless he can establish under Rule 61(i)(5) that he was deprived of a substantial constitutional right because his counsel failed to object to the jury instruction on felony murder or failed to request that the jury be instructed on lesser included offenses.
(7) In order to establish a claim of ineffective assistance of counsel, a defendant must prove that: (a) counsel's representation fell below an objective standard of reasonableness; and (b) there is a reasonable probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different. There is a strong presumption that counsel's representation was professionally reasonable.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Id. at 689.
(8) Robertson's first claim is that his counsel was ineffective for failing to object to the Superior Court's jury instruction on felony murder. In 1991, a person was guilty of felony murder if, with criminal negligence, the person caused the death of another "in the course of and in furtherance of the commission or attempted commission" of a number of felonies, including first degree robbery. When instructing the jury on the two counts of felony murder, the Superior Court issued the following instruction, in relevant part:
Counts [sic] III and Count VIII of the indictment charge the defendants with Murder First Degree, criminal negligence, referred to as felony murder.
Count III of the indictment charge [sic] the defendants with Murder First Degree in that, on or about the 12th day of December, in the County of New Castle, State of Delaware, did, with criminal negligence, cause the death of Michael Salvatore, in the course of and in furtherance of the commission of Robbery First Degree.
Count VIII of the indictment charge [sic] the defendants with First Degree Murder in that, on or about the 12th day of December, in the County of New Castle, State of Delaware, did, with criminal negligence, cause the death of Vincent Monterosso, in the course of and in furtherance of the commission of Robbery First Degree.
The pertinent definition of the offense in the Criminal Code is as follows:
A person is guilty of Murder in the First Degree when he, with criminal negligence caused the death of another person in the course of Robbery in the First Degree.
In order to find the defendants guilty of Murder in the First Degree as charged in Count III and VIII of the indictment, you must find all of the following elements have been established beyond a reasonable doubt:
...
The third element is that the killing occurred during the commission of a felony. In this case, that felony is Robbery in the First Degree, and fourth, the killings were in furtherance of, or were intended to assist in, the commission of the felony, Robbery, First Degree.
(9) Robertson contends that his attorney should have objected to this instruction because the trial court initially misquoted the definition of felony murder contained in the criminal code (highlighted in bold text) because he omitted the element requiring that the murder be committed during the commission of and in furtherance of the underlying felony. Robertson concedes that the trial court, only moments later, accurately instructed the jury on the specific elements it must find (highlighted in italicized text) in order to convict him of felony murder. Nonetheless, he argues that the instruction, as a whole, was contradictory and thus ambiguous, and his lawyer should have objected and requested a curative instruction.
(10) We disagree. In reviewing the sufficiency of a jury instruction, this Court will read the instructions as a whole to determine if the trial court accurately instructed the jury on the law. Some inaccuracies and inaptness of language are to be expected in any jury charge. The relevant consideration is whether the instructions as a whole are reasonably informative, not misleading, and allowed the jury to intelligently perform its duty in returning a verdict. In considering the felony murder instruction as a whole in Robertson's case, we find that the instruction allowed the jury to intelligently perform its duty. We thus conclude that counsel's failure to object to the instruction did not amount to ineffective assistance. Accordingly, we reject Robertson's first claim on appeal.
Hankins v. State, 976 A.2d 839, 842 (Del. 2009).
Flamer v. State, 490 A.2d 104, 128 (Del. 1983).
Hankins v. State, 976 at 842.
(11) Robertson next claims that his trial counsel failed to understand the law of accomplice liability, which erroneously led him not to request that the jury be instructed on lesser included offenses. First, to the extent that Robertson's brief implies that his attorney was ineffective for failing to request a jury instruction consistent with the holding in Allen v. State, this Court has held that Allen has no retroactive effect. Consequently, this claim fails.
970 A.2d 203, 213 (Del. 2009) (holding that when the State proceeds against a defendant on a theory of accomplice liability for a crime that is divided into degrees, the jury must be instructed that it must make an individualized determination of the defendant's mental state and culpability for any aggravating fact or circumstance).
Richardson v. State, 3 A.2d 233 (Del. 2010).
(12) Furthermore, with respect to Robertson's claim regarding lesser included offenses, the evidence presented at trial established a conspiracy to commit first degree robbery and that, with criminal negligence, the conspirators shot and killed two guards during the course of and in furtherance of that robbery. Robertson's defense at trial was that the State had failed to prove that he was at the crime scene and thus had failed to prove that he had participated in the conspiracy. Robertson took an all or nothing approach in trying to convince the jury that he was not guilty of any crime. We find counsel's strategy to have been entirely reasonable. Under the circumstances, we find no ineffective assistance on trial counsel's part in not requesting instructions on any lesser included offenses, which would have been inconsistent with Robertson's defense. Therefore, we reject Robertson's second claim on appeal.
See Dickinson v. State, 8 A.3d 1166, 1168 (Del. 2010).
Allison v. State, 2010 WL 3733919 (Del. Sept. 24, 2010).
(13) This Court has reviewed the record carefully and has concluded that Robertson's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Robertson's counsel has made a conscientious effort to examine the record and the law and has properly determined that Robertson could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the State's motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
Myron T. Steele
Chief Justice