Opinion
ID No. 0402010394.
Submitted: July 12, 2007.
July 26, 2007.
Joseph M. Bernstein, Esquire, Wilmington, DE.
Dear Mr. Bernstein:
Pending before the Court is a motion for postconviction relief which defendant Daniel J. Anker ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying the motion.
Defendant was convicted of nine counts of felony theft and one count of conspiracy in the second degree. Defendant was an attorney at the time he committed the crimes. The crimes were related to his misappropriation of funds from his client escrow account.
Defendant appealed from the judgment of the Superior Court. He raised four issues on appeal, three of which are pertinent to the pending Rule 61 motion. These three pertinent grounds are:
1) the Superior Court should not have admitted evidence that the victims' mortgages were "paid off" by the Delaware Lawyers' Fund for Client Protection;
2) the admission of "bad act" evidence was error; in particular, the admission of evidence that defendant falsely certified to the Delaware Supreme Court regarding his escrow accounts and evidence that defendant failed to pay $211,000.00 in insurance settlements to his client was error; and
3) evidence relating to the impact of the crime on the victims should have been excluded.
The Supreme Court ruled that defendant had not shown plain error in the admission of the evidence that the Lawyers' Fund paid off the mortgages, of the "bad act" evidence, or of the victims' testimony that defendant's failure to pay off the mortgages damaged their credit.Anker v. State, Del. Supr., No. 552, 2005, Ridgely, J. (Oct. 31, 2006). Additionally, with regard to the third issue, the Court stated: "Anker has not shown that the admission of the evidence affected the outcome of the trial." Id. at 7.
As explained in Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986):
Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process. Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice. [Citations omitted.]
The Supreme Court denied an en Banc rehearing motion by order dated December 5, 2006. It issued its mandate on December 7, 2006.
In his pending postconviction motion, defendant argues trial counsel was ineffective in four different situations. Defendant asserts the following claims.
Claim No. 1: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the investigation of the defendant by the Office of Disciplinary Counsel ("ODC") and actions taken by the Lawyers' Fund for Client Protection ("Lawyers' Fund").
Claim No. 2: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the emotional and financial impact of defendant's alleged thefts on the alleged victims.
Claim No. 3: Defense counsel failed to object to the introduction of evidence in the State's case-in-chief concerning the defendant's character and "bad acts" allegedly committed by the defendant.
Defendant details four episodes of such evidence having been admitted. Two of those episodes are the same which defendant advanced on appeal as constituting plain error: false certification to the Delaware Supreme Court regarding defendant's escrow accounts and that defendant failed to pay $211,000.00 in insurance settlements to his client.
Claim No. 4: Defense counsel was ineffective in failing to educate the jury concerning the distinction between an attorney's liability for a violation of attorney disciplinary rules of conduct, on the one hand, and liability for criminal conduct, on the other hand.
Thus, except for being couched within an ineffective assistance of counsel claim, defendant's claims in Claim No. 1 and Claim No. 2 and regarding two episodes in Claim No. 3 are the same as he advanced in his direct appeal. With regard to Claim No. 1, defendant, in effect, argues the Supreme Court's ruling was legally wrong and the admission of the objectionable evidence was reversible.
Significantly, defendant does not state, detail, explain, or in any way address how the outcome of the proceedings might have been different had counsel not committed these alleged errors.
Before examining the merits of Rule 61 claims, the Court first must determine whether any procedural bars as set forth in Superior Court Criminal Rule 61(i) exist.
In Superior Court Criminal Rule 61(i), it is provided as follows:
(i) Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
The motion was timely filed; thus, the time bar does not apply. All of defendant's claims are for ineffective assistance of counsel. Generally, claims of ineffective assistance of counsel are raised for the first time in a postconviction motion filed following a direct appeal as to the trial outcome. Therefore, the procedural bars of Rule 61 are not applicable.
In advancing ineffective assistance of counsel claims, defendant has the burden of establishing (i) deficient performance by his counsel (ii) which actually caused defendant prejudice. Strickland v. Washington, 466 U.S. 668 (1984). Deficient performance means that counsel's representation of defendant fell below an objective standard of reasonableness. Id. at 688. In considering post-trial attacks on counsel, Strickland cautions judges to review the counsel's performance from the defense counsel's perspective at the time decisions were being made. Second guessing or "Monday morning quarterbacking" should be avoided. Id. at 689.
A finding of counsel's deficient performance needs to be coupled with a showing of actual prejudice. Actual prejudice is not potential or conceivable prejudice. "The Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Strickland establishes that "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Id. at 686.
In this case, even if the Court assumed, without deciding, that counsel's performance was deficient, all of defendant's claims fail because he has not made any attempt to show that the deficient performance caused defendant prejudice. With regard to Claim No. 1, merely arguing the Supreme Court was wrong and providing citations to cases from other jurisdictions in support of that argument does not establish prejudice. It may well be that defendant knew such a showing would not be possible with regard to the vast majority of his claims in light of the Supreme Court's decision on the direct appeal. However, it is irrelevant as to why defendant did not establish prejudice. What is relevant is that he has not made any attempt to meet his burden of establishing prejudice. Thus, the ineffective assistance of counsel claims fail.
The Supreme Court's decisions in the direct appeal on the same issues raised in the context of the ineffective assistance of counsel claims preclude defendant from establishing prejudice resulting from such alleged ineffectiveness. Skinner v. State, 607 A.2d 1170 (Del. 1992).
For the foregoing reasons, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.