Opinion
ID# 9412010717
Submitted: January 18, 2001
Decided: April 10, 2001
On Defendant's Motion for Postconviction Relief. DENIED.
ORDER
This 10th day of April, 2001, upon consideration of Defendant's Motion for Postconviction Relief, the State's Response, Defendant's prior trial counsel's affidavit, Defendant's prior appellate counsel's affidavit, and Defendant's various Amendments to his Motion, it appears to this Court that:
1. Jerry Kendall (Defendant), filed this pro se Motion for Postconviction Relief on June 20, 2000 pursuant to Superior Court Criminal Rule 61. On August 31, 2000, this Court summarily dismissed all of Defendant's claims for Postconviction Relief with the exception of three remaining claims. Subsequent to the Summary Dismissal, the State filed a Response, Defendant's trial counsel, Joseph A. Hurley, Esquire, submitted an affidavit in support of his representation of Defendant as trial counsel, and Defendant's appellate counsel, Bernard J. O'Donnell, Esquire, filed an affidavit in support of his appellate representation of Defendant. Defendant then filed a Reply. For the reasons stated below, Defendant's remaining three grounds for Postconviction Relief are DENIED.
In addition to the original Motion for Postconviction Relief, Defendant filed twenty-one differently-captioned submissions which appear to be supplemental claims. It is not clear exactly what Defendant is asserting in these additional submissions. The Court will not attempt to separately identify or otherwise organize all of Defendant's claims in his numerous filings.
State v. Kendall, Del. Super., ID No. 9412010717, Cooch, J. (August 31, 2000) (ORDER).
2. On November 25, 1996, Defendant was convicted of Criminal Racketeering ( 11 Del. C. § 1503(a)), Perjury First Degree ( 11 Del. C. § 1223), twenty counts of Felony Theft ( 11 Del. C. § 841), and twelve counts of Improper Retention of Contractor's Funds ( 6 Del. C. § 3505). Throughout pre-trial proceedings, his trial and his sentencing, Defendant was represented by Joseph A. Hurley, Esquire. After the jury convicted Defendant, Defendant was sentenced to eight years incarceration at Level V followed by a period of probation.
Defendant appealed his convictions to the Supreme Court of Delaware and the Court affirmed Defendant's convictions. The Supreme Court held that ". . . (a) where a defendant intentionally created a false impression as to his past conduct in order to affect adversely his victims' judgment of their dealings with him, it was not an abuse of discretion for the trial court to admit evidence of the prior misconduct as direct proof of Theft by False Pretense and of a pattern of Racketeering; and (b) that evidence of prior misconduct evincing the defendant's intent to steal, his knowledge of how to carry out the misconduct, and his common scheme or plan may be admitted in evidence." On direct appeal to the Delaware Supreme Court, Defendant was represented by Assistant Public Defender Bernard J. O'Donnell. The remaining claims in this Motion include "ineffective assistance of counsel by Trial Attorney Joseph Hurley"; "ineffective assistance of counsel by Appellant Attorney Bernard O'Donnell/Assistant Public Defender"; and a claim that the trial court erred in permitting the State to prosecute Defendant on specific theft counts. This last claim essentially asserts that the State should not have been permitted to prosecute Defendant, as "[the victims] still owed the Defendant large amounts of money."
Kendall v. State, Del. Supr., 726 A.2d 1191 (1999).
Id.
Defendant's Motion for Postconviction Relief Memorandum at "Summary of Arguments."
Defendant's Memorandum at Argument #7.
3. Insofar as Defendant's attack on his trial representation is concerned, Defendant claims that Mr. Hurley was "consumed at the time" by another high profile case, which was pending at the time of Defendant's trial. Defendant also claims that Mr. Hurley "strongly advised him not to testify" at his trial. Mr. Hurley, by affidavit, has responded to these allegations by asserting that he was not "caught up in the media frenzy" and that the trial transcript "speaks volumes with regard to the state of preparedness [he] brought to the trial." Furthermore, Mr. Hurley refuted the assertion that he advised Defendant not to testify at his trial.
Defendant specifically asserts that Mr. Hurley "was totally consumed by the very high profile Brian Peterson, Amy Grossberg case which made world and national news. He was consistently being interrupted by his Secretary during the trial. During lunch and breaks, he spent all of his time talking to Barbara Walters, Charles Gibson, and many other news media people. . . . was so caught up in the media frenzy . . . [his trial attorney] should've moved for a mistrial [sic] . . . [His attorney] was very much aware of the State's false allegations and numerous inaccuracies in the State's investigation, which the Chief Investigator . . . admitted to under oath at trial." Defendant's Memorandum at Argument #5.
Defendant's Motion for Postconviction Relief at Argument 5.
Affidavit of Joseph A. Hurley, Esquire at ¶ 4.
Similarly, Defendant attacks Mr. O'Donnell's appellate representation. Defendant claims that Mr. O'Donnell "argued a single issue in the direct appeal . . . [and that] [m]any issues were left out." In response, Mr. O'Donnell has filed an affidavit and asserted that Defendant's allegation is conclusory, but to the extent Defendant's claim is not conclusory, that "[he] filed a brief arguing what [he] thought would be the most persuasive issue on appeal" which was the admission of bad character evidence against Defendant. Mr. O'Donnell's affidavit also stated that Defendant's trial was "unusually long and complicated . . . [and that] the State did not establish the specific amount of losses with precision [but] it [was Mr. O'Donnell's] recollection that it was a fair inference from all of the testimony that all of the victims had suffered losses."
Defendant's Motion for Postconviction Relief at Argument 6.
Affidavit of Bernard J. O'Donnell, Esquire at ¶ 2.
Id. at ¶ 4.
In addition to the affidavits filed by both attorneys, the State has filed a Response to Defendant's Motion for Postconviction Relief. The State addressed both ineffective assistance of counsel claims in addition to the claim that the State's should not have been permitted to prosecute Defendant under the theft statute.
4. When considering a Motion for Postconviction Relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of the individual claims. To protect the integrity of the procedural rules, ordinarily the Court should not consider the merits of a postconviction claim where a procedural bar exists. Under Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the Rules of Superior Court, is thereafter barred unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 745 (1990); Winn v. State, Del. Supr., No. 257, 1992, Moore, J. (Feb.9, 1993)(ORDER); Webster v. State, Del. Supr., No. 65, 1992, Horsey, J. (April 1, 1992)(ORDER).
State v. Gattis, Del. Super., Cr.A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger v. State, 580 A.2d at 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER); Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 5, 1992)(ORDER).
Younger, 580 A.2d at 556 (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer, 585 A.2d at 748.
Defendant's argument the State should not have been permitted to prosecute Defendant on theft charges is procedurally barred pursuant to Super. Ct. Crim. R. 61(i)(3). The State correctly asserts that Defendant's trial attorney, Mr. Hurley, made this argument in the form of a motion for judgment of acquittal. Defendant however, did not raise this argument in his direct appeal to the Supreme Court. As Rule 61(i)(3) plainly sets forth, Defendant should have asserted this claim in his direct appeal to the Supreme Court of Delaware. Because this claim was not raised in Defendant's direct appeal it is procedurally barred pursuant to Rule 61(i)(3) unless Defendant can demonstrate 1) cause for relief from the failure to argue the claim and 2) actual prejudice resulting from the alleged error.
This Court finds that Defendant has shown no cause for relief, since he has not demonstrated any actual prejudice from the error of not having raised this assertion in his direct appeal to the Supreme Court of Delaware. Therefore, this claim is DENIED.
5. When a movant alleges a colorable claim of ineffective assistance of counsel, which is potentially procedurally barred under Super. Ct. Crim. R. 61(i)(3), the bar will be inapplicable pursuant to R. 61(i)(5) because a claim of ineffective assistance of counsel is "a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceeding." Proof of an ineffective assistance of counsel claim "requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
Super. Ct. Crim. R. 61(i)(5).
Strickland v. Washington, 466 U.S. 668, 687 (1984).
A claim of ineffective assistance of counsel is governed by the two-part test set forth in Strickland v. Washington. A movant must show both "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Since the movant must prove both prongs in order to succeed on an ineffectiveness claim, the failure to prove either will render the claim unsuccessful, and the court need not go on to address the remaining prong. A movant must prove his allegation of ineffective assistance of counsel by a preponderance of the evidence.
466 U.S. 668 (1984).
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988) (quoting Strickland v. Washington, 466 at 688, 694.
State v. Wright, Del. Super., 653 A.2d 288, 294 (1994).
6. Turning to Defendant's remaining two claims for Postconviction Relief, this Court finds that Defendant's allegations as to both claims do not rise to the level required to sustain an ineffective assistance of counsel claim. As to the ineffectiveness of trial counsel claim, Mr. Hurley's affidavit enumerates the several steps he undertook in his representation of Defendant. Specifically, Mr. Hurley stated that he "successfully petition[ed] for a jury view of the premises which w[as] the subject matter of the trial"; he was "not consistently interrupted . . . during the trial"; he "objected to any evidence that was objectionable and that was inconsistent to the defense" and in response to Defendant's allegation that Mr. Hurley was "caught up in the media frenzy", Mr. Hurley stated that the "Court had the opportunity to observe my demeanor throughout the trial process, and the transcript of the trial speaks volumes with regard to the state of preparedness I brought to the trial."
Affidavit of Joseph A. Hurley, Esquire at ¶ 4-6.
Furthermore, Mr. Hurley stated that he never "advise[s]" clients on whether or not to testify at trial, but that he thoroughly explains and explores all of the positive and negative aspects of testifying. This Court finds that any claim Defendant now attempts to assert with respect to Mr. Hurley "strongly advis[ing] Defendant not to testify at trial" devoid of merit. It is also factually inconsistent with Mr. Hurley's representation. Defendant does not cite specific facts that would lead the Court to believe Mr. Hurley "strongly advised Defendant not to testify." Defendant seems to rest his argument on the proposition that Mr. Hurley had turned his attention to another criminal case, but Mr. Hurley has averred that Defendant's trial "had my complete and undistracted attention." Defendant has not established a claim for ineffective assistance of counsel as he has not demonstrated that his attorney's representation fell below an objective standard of reasonableness, which is the first prong of Strickland. Thus, Defendant's claim of ineffective assistance of trial counsel is DENIED.
Id. at ¶ 8.
Defendant's Memorandum at Argument #5.
Affidavit of Joseph A. Hurley, Esquire at ¶ 2 .
7. In addressing Defendant's claim of ineffective assistance of his appellate counsel, this Court finds Defendant has not shown the necessary requirements for an ineffective assistance of counsel claim. Defendant has not made a proper showing "that [his] counsel's representation fell below an objective standard of reasonableness," nor has Defendant shown that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." In so finding, it appears to this Court that Mr. O'Donnell's representation did not fall below an objective standard of reasonableness. Defendant claims Mr. O'Donnell's conduct fell below this reasonable standards because Mr. O'Donnell only asserted one argument on appeal. Defendant contends that Mr. O'Donnell should have asserted many other grounds in addition to the one claim that was brought.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988).
In Mr. O'Donnell's affidavit, he states that "to the extent that [Defendant] believes that a frontal attack on the State's evidence . . . would have brought certain victory, I thought that some of the State's evidence was devastating as to his intent to victimize the complainants. . . ." Mr. O'Donnell stated he thought it was better to make an indirect attack on appeal on the "mountain of bad character evidence admitted against [Defendant]." Specifically, Mr. O'Donnell addressed Defendant's claim that he only argued one issue on appeal by stating the following:
Affidavit of Bernard J. O'Donnell, Esquire at 4.
[Mr. O'Donnell] did not see a court on appeal viewing all of the evidence on appeal any more favorable than the jury. On the other hand, I thought it better to make an indirect attack on appeal on the mountain of bad character evidence admitted against him. I think it was still correct that if that could have been kept out, [Defendant] might have had a chance of acquittal; but with its admission, he had none."
Id.
8. This Court finds that trial counsel's representation and appellate counsel's representation of Defendant did not fall below an objective standard of reasonableness. Therefore, Defendant has failed to make a sufficient showing for his ineffective assistance of counsel claims.
9. For the reasons stated above, all of Defendant's remaining claims in this Motion for Postconviction Relief are DENIED.
IT IS SO ORDERED.