Opinion
IK97-10-0513-R1 through IK97-10-0518-R1 ID No. 9710000083
Submitted: May 31, 2002
Decided: July 3, 2002
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
John R. Garey, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Robert E. Eaton, pro se.
ORDER
Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, the defendant's objections to the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) The defendant, Robert E. Eaton ("Eaton") was found guilty by a jury on July 9, 1998 of Aggravated Menacing, 11 Del. C. § 602; Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447; Assault in the Second Degree, 11 Del. C. § 612; Reckless Endangering in the First Degree, 11 Del. C. § 604; Assault in the Third Degree, 11 Del. C. § 611(1); and Unlawful Imprisonment in the Second Degree, 11 Del. C. § 781, a lesser included offense of Kidnapping First Degree. On September 7, 1998, Eaton, through counsel, filed a motion for a new trial on the basis of the death of the trial judge prior to sentencing. While a decision on this motion was pending, counsel filed a motion to withdraw which was denied on October 16, 1998. On November 19, 1998, a second motion to withdraw as counsel was filed and subsequently granted on December 4, 1998. New counsel was appointed for Eaton on December 11, 1998.
Eaton's new counsel filed an am ended motion for a new trial on April 23, 1999 alleging a number of additional grounds for relief. The Court denied the motion on June 10, 1999. Thereafter, on July 2, 1999, the Court sentenced Eaton to twenty-four years incarceration followed by probation. A timely notice of appeal was filed with the Delaware Supreme Court. In his appeal, Eaton claimed (i) his convictions for assault second degree and/or reckless endangering first degree were not supported by sufficient evidence and create double jeopardy; (ii) the trial court erred by not granting a new trial after the death of the presiding judge; (iii) the trial court erred by not granting a mistrial based on (a) testimony by the victim, Julie Kenton ("Kenton"), that Eaton was on probation and that there was a Family Court hearing on her PFA motion and (b) testimony by Robert Pack that Eaton had threatened to kill Kenton while in prison awaiting trial; and (iv) the trial court erred by excluding evidence of prior inconsistent statements by Kenton. The Delaware Supreme Court on appeal affirmed each of Eaton's convictions and sentences.
Eaton v. State, Del. Supr., No. 300, 1999, Walsh, J. (April 28, 2000) (Order).
Next, Eaton filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Eaton claim s ineffective assistance of counsel.
(2) The Court referred this motion to Superior Court Commissioner Andrea M. Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) and (4) for failure to prove cause and prejudice and as previously adjudicated.
(3) Eaton has filed written objections to the Commissioner's Report and Recommendation. He contends that prejudice was established when a motion to withdraw as counsel was granted on December 4, 1998. I find this contention to be without merit.
(4) Pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62, the Court has conducted a careful and de novo determination. The Court finds that Eaton's claims are procedurally barred by Rule 61(i)(3) and (4). Even if the bar did not apply, Eaton has not shown that the outcome of the proceeding would have been different if trial counsel had performed as he now argues she should have performed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated April 15, 2002,
IT IS ORDERED that:
(A) The Commissioner's Report and Recomm endation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DISMISSED.
COMMISSIONER'S REPORT AND RECOMMENDATION
FREUD, Commissioner April 15, 2002
On July 9, 1998, Defendant Robert E. Eaton ("Eaton") was found guilty by a jury as charged of one count of Aggravated Menacing, 11 Del. C. § 602, one count of Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447, one count of Assault in the Second Degree, 11 Del. C. § 612, one count of Reckless Endangering in the First Degree, 11 Del. C. § 604, one count of State v. Robert E. Eaton ID No. 9710000083 April 15, 2002 Assault in the Third Degree, 11 Del. C. § 611(1), and one count of Unlawful Imprisonment in the Second Degree, 11 Del. C. § 781. Thereafter, on September 7, 1998, Eaton, through coun sel, filed a motion for a new trial on the basis of the death of the trial judge prior to sentencing. While a decision on this motion was pending, counsel filed a motion to withdraw which was denied on October 16, 1998. On November 19, 1998, a second motion to withdraw as counsel was filed and subsequently granted on December 4, 1998. New counsel was appointed for Eaton on Decem ber 11, 1998.
Eaton's new counsel filed an amended motion for a new trial on April 23, 1999 alleging a number of additional grounds for relief. The Court denied the motion on June 10, 1999. Thereafter, on July 2, 1999, Easton was sentenced to twenty-four years incarceration followed by probation. A timely notice of appeal was filed with the Delaware Supreme Court. In his appeal, Eaton claimed (i) his convictions for assault second degree and/or reckless endangering first degree were not supported by sufficient evidence and create double jeopardy; (ii) the trial court erred by not granting a new trial after the death of the presiding judge; (iii) the trial court erred by not granting a m istrial based on (a) testimony by the victim, Julie Kenton ("Kenton"), that Eaton was on probation and that there was a Family Court hearing on her PFA motion and (b) testimony by Robert Pack that Eaton had threatened to kill Kenton while in prison awaiting trial; and (iv) the trial court erred by excluding evidence of prior inconsistent statements by Kenton. The Supreme Court affirmed Eaton's conviction and sentence.
Eaton v. State, Del. Supr., No. 300, 1999, Walsh, J. (April 28, 2000) (Order).
Finally, Eaton filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Eaton makes the following claims:
Ground one: Ineffective Assistance of Counsel
A. Defense counsel kn owingly represented conflicting interest without notifying the Court at the time it originated.
B. Defense counsel failed to object to the use of illegally obtained statements which were gathered after defendant requested counsel during an audiotaped interrogation.
C. Defense counsel failed to object to improper comments by prosecutors during closing arguments. 1) Skipping school was ruled inadmissible by the Court. 2) Prosecution stated that the defendant took pleasure in torturing the alleged victim. No foundation was laid.
D. Defense counsel failed to object to the use of photographic evidence introduced by the prosecution. 1) Pictures of alleged crime scene (pick up truck), repairs had already been started before detectives took pictures.
E. Defense counsel failed to investigate and secure witnesses on behalf of the defendant.
I. FACTS
The following is the description of the facts in this case taken from the Supreme Court's opinion:
At trial, Kenton testified that she and Eaton had gone to a casino in Harrington on the afternoon of September 23, 1997. After several hours, Eaton became intoxicated and was escorted from the premises. According to Kenton, Eaton ordered her behind the steering wheel of his truck while he held the wheel and kept his foot on the accelerator petal. Kenton was crying as the truck moved erratically northward on the highway from Harrington. At one point, Kenton succeeded in swerving the truck off the highway and into a parking lot. Eaton then held a knife to Kenton's throat and stated that if she did not drive him to his parents' house, he was going to kill her.
As Kenton and Eaton continued down the highway, Eaton used a lit cigarette to burn Kenton's arms three times and her nose once. She testified that Eaton, at one point, cut her with the knife and began to choke her with a tow strap. This choking made Kenton dizzy and she hit a telephone pole after losing cons ciousness. The choking continued until they reached Eaton's parents' house in Camden. When they arrived there, Eaton kicked a hole in the truck windshield and began beating Kenton's leg with a hammer.
Kenton claimed that Eaton was continually with her in the week following the attack and it was not until September 30 that Kenton was able to telephone a friend to pick her up while visiting her son's school at lunchtime. That same day, another friend observed Kenton's injuries and took her to the Family Court to seek a Protection from Abuse (PFA) order. Eaton was arrested two days later.
Eaton testified at trial on his own behalf. He claimed that after leaving the casino he fell asleep in his truck and awoke only when Kenton drove off the road and hit the telephone pole. Eaton denied burning, cutting or beating Kenton, putting a tow strap around her neck or threatening her in any manner at all.
Eaton v. State, supra at 2-3.
II. DISCUSSION
Under Delaware law, the Court must first determine whether Eaton has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of his postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. Eaton's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Eaton's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.None of Eaton's grounds for relief were raised at trial, in the motion for a new trial or on direct appeal. Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: 1) cause for the procedural fault; and 2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim of miscarriage of justice stemming from a constitutional violation that "under mines the fundamental legality, reliability, integrity or fairness of the proceed ing leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
All of Eaton's claims are premised on allegations of ineffective assistance of counsel. He has therefore seemingly alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. This type of claim is not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Eaton, allege ineffective assistance of counsel in ord er to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduct[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather to succeed on a claim of ineffective assistance of counsel a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ("Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687.
Id. at 694.
Younger v. State, 580 A.2d 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORD ER); Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be follow ed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must elim inate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, mem. op. at 9.
Strickland at 689.
In the case at bar, Eaton attempts to show cause for his procedural default by making conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Eaton's Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims.
See e.g. Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996); Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORD ER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).