Opinion
I.D. No. 0606006590.
Submitted: May 28, 2008.
Decided: August 26, 2008.
On Defendant Robert M. Benson's Motion for Postconviction Relief.
DENIED.Robert Benson, Defendant, Pro Se.
FACTUAL AND PROCEDURAL CONTEXT
Near midnight on April 5, 2002, four masked gunmen entered the Peddler's Pit Stop liquor store in Newark. They were later identified as Robert Benson, Raheem Poteat, Chris Gray and Jamah Grosvenor. In the store at the time were the proprietors, Ravindra Patel and his wife Duana, their five-year old son, Mihir, and one customer, Larry Shuler.
Upon entering the store, the four gunmen — with their weapons drawn — split up. Two went behind the counter where Mrs. Patel was standing. One pointed a gun at her chest, the other at her head, telling her not to do "anything stupid." They then forced her to open the cash register and safe.
The third and fourth gunmen went to the back of the store. One gunman confronted Mr. Patel, while the other gunman confronted Mr. Shuler. With a gun to his head, Mr. Patel was forced to lie on the floor while the robber went through his pockets. Mr. Shuler, too, was forced to lie on the floor, gun to his head, while he was robbed of some cash in his pockets.
The four then fled from the store with the money they had stolen. A police officer was nearby, and the men were arrested just minutes after the robbery. All were charged with numerous crimes, including three counts of Robbery in the First Degree, three counts of Possession of a Firearm During the Commission of a Felony ("PFDCF") relating to the robbery charges, three counts of Aggravated Menacing, three counts of PFDCF relating to the menacing charges and Conspiracy.
Grosvenor and Gray pled guilty before trial. Benson and Poteat were tried together. During trial, the defense moved to dismiss the Aggravated Menacing charges, the three PDFCF charges relating to the Aggravated Menacing charges, and a charge of Conspiracy in the Second Degree. The defense argued that principles of double jeopardy required that these charges be merged with the three counts of Robbery in the First Degree, the related PFDCF charges, and the Conspiracy charges related to the robbery.
After hearing the arguments of both the prosecution and the defense, the trial judge declined to make an immediate ruling. The trial judge stated he would take the issue "under advisement" and would consider the defense's request if the jury's verdict rendered it necessary. The judge also stated that the parties could submit post-trial memoranda on the issue.
The jury returned a verdict of guilty on all of the counts of robbery and menacing. The jury also returned guilty verdicts on all of the PFDCF charges accompanying the robbery and menacing charges. Neither party submitted any post-trial memoranda regarding the defense's double jeopardy argument. The trial judge implicitly denied the defense's motion for merger of the robbery and menacing offenses when Benson was sentenced on all of the convictions for all of the charges.
On direct appeal, the Supreme Court reversed and remanded the judgment calling for the three counts of aggravated menacing and the related three possession counts to be merged into the three counts of robbery first degree. Benson was re-sentenced accordingly.
ANALYSIS
In evaluating a postconviction relief motion, the Court must first ascertain if any procedural bars of Superior Court Criminal Rule 61(i) apply. If a procedural bar is found to exist, the Court should refrain from considering the merits of the individual claims. This Court will not address claims for postconviction relief that are conclusory and unsubstantiated.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Id. at 555.
Pursuant to Rule 61(a), a motion for postconviction relief must be based on "a sufficient factual and legal basis." According to Rule 61(i)(1), a motion for postconviction relief must be filed within three years. Pursuant to Rule 61(b)(2), "the motion shall specify all the grounds for relief which are available to movant . . . and shall set forth in summary form the facts supporting each of the grounds thus specified."
Super. Ct. Crim. R. 61(i)(1). If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Any ground for relief not asserted in a prior postconviction relief motion is thereafter barred unless consideration of the claim is necessary in the interest of justice. Grounds for relief not asserted in the proceedings leading to the judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default; and (2) prejudice from violation of movant's rights. Any formerly-adjudicated ground for relief, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(4).
Benson's conviction became final on April 29, 2005. On April 15, 2008, he filed a motion requesting an extension of time to file a Rule 61 motion which was granted. Benson's motion for postconviction relief was timely filed.
In support of his motion, Benson claims his attorney: (1) failed to file a motion for judgment of acquittal on two of the three robbery charges and two of the three possession charges in light of insufficient evidence to support those claims; and (2) failed to raise the same issue on direct appeal Both of these claims are without merit.
To prevail on a claim of ineffective assistance of counsel, a defendant must show that: (1) counsel's errors were so grievous that counsel's representation fell below an objective standard of reasonableness; and (2) actual prejudice, that is, that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The defendant must satisfy the proof requirements of both prongs in order to succeed on an ineffective assistance of counsel claim. Failure to do so as to one prong will render the claim unsuccessful, and the Court need not address the remaining prong. To show that counsel's representation fell below an objective standard of reasonableness, the defendant bears a heavy burden. He must overcome the strong presumption that his counsel's representation was professionally reasonable.
Strickland v. Washington, 466 U.S. 668, 694 (1984); Albury v. State, 551 A.2d 53, 58 (Del. 1988).
Id. at 697.
Id. at 689.
The Court will address the second prong of prejudice first as it is apparent that Benson was not prejudiced by his counsel's actions even if they were deficient. Benson argues that counsel's actions amounted to ineffective assistance of counsel when he failed to move for judgment of acquittal in light of the State's failure to produce the wallet or the money taken from the victims.
Contrary to Benson's contention, production of the wallet or money was not necessary to satisfy the elements of robbery. Mr. Patel testified that the perpetrator held a gun to his head, "took my wallet and went in the back pocket and tore all my papers, and he took my wallet." Mrs. Patel testified that one gunman held a gun to her chest and another gunman held a gun to her head while demanding that she open the cash register and the safe. Mr. Shuler testified that one gunman held a gun to his head and took $56 dollars from his pocket. The testimony was sufficient to demonstrate that the defendants compelled the victims to deliver their money. Counsel's alleged failure to bring a motion for judgment of acquittal under Superior Court Criminal Rule 29 did not constitute ineffective assistance of counsel because the State's failure to produce the stolen wallet or stolen money was not necessary to prove the crime of Robbery First Degree. Benson has not suffered any prejudice.
The jury instructions stated: "Delaware law defines the offense of Robbery in the First Degree, in pertinent part, as follows: A person is guilty of robbery in the first degree when the person commits the crime of robbery in the second degree and when, in the course of the commission of the crime [or immediate flight therefrom] the person or another participant in the crime: (2) Displays what appears to be a deadly weapon.
Delaware law defines the offense of Robbery in the Second Degree, in pertinent part, as follows: A person is guilty of robbery in the second degree when, in the course of committing theft, the person uses or threatens the immediate use of force upon another person with intent to: (1) Prevent or overcome resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) Compel the owner of the property or another person to deliver up the property or to engage in other conduct which aids in the commission of the theft."
Id. at 102-105.
Second, Benson argues that counsel's actions amounted to ineffective assistance of counsel when he failed to raise this same issue on direct appeal. For the same reasons as stated above, Benson's claims are without merit.
CONCLUSION
THEREFORE, defendant Robert M. Benson's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.