Opinion
Cr. ID No. 0702007817.
Submitted: September 20, 2010.
Decided: November 8, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION, FOLLOWING THE DELAWARE SUPREME COURT'S REMAND, THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
James T. Wakley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Ushango Owens, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 8th day of November, 2010, upon consideration of Defendant's Motion for Postconviction Relief following the Delaware Supreme Court's remand directing that the motion be reconsidered after the submission of Defendant's Counsel's Affidavit and whatever other factfinding the Superior Court deemed necessary to its reconsideration of Defendant's postconviction claims, it appears to the Court that:
1. After a two-day jury trial on August 2-3, 2007, Defendant Ushango Owens was convicted of Possession with Intent to Distribute Heroin, Distribution of Heroin within 300 Feet of a Park, Resisting Arrest, and Possession of Heroin within 1000 Feet of a School. One charge of resisting arrest was dismissed. On September 21, 2007, Defendant Owens was sentenced to a total of ten years imprisonment suspended after five years for one year at Level III probation.
2. The facts giving rise to the charges reveal that on February 8, 2007, a surveillance video showed Defendant at the corner of Fourth and Connell Streets, Wilmington, Delaware, in interactions with persons. The police came after him. Defendant fled. Defendant ran several blocks, dove over the front of a police car, and fell down around Third and Harrison Streets. The police observed Defendant throw contraband under a car, and recovered the contraband that was thrown under the car. Contraband was also found in Defendant's possession.
September 21, 2007 Sentencing Transcript, pgs. 3, 7; August 2, 2007 Trial Transcript, pgs. 19-79.
3. Defendant Owens did not file a direct appeal to the Delaware Supreme Court. Consequently, Defendant Owens' judgment of conviction became final on or about October 21, 2007, 30 days after Defendant was sentenced by the Superior Court.
Super.Ct.Crim.R. 61(i) (1) and (m) (1).
4. Defendant Owens filed a motion for modification of sentence on November 14, 2007, which was denied by the Superior Court by Order dated December 12, 2007. Defendant appealed the denial of the modification of sentence, which was affirmed by the Delaware Supreme Court on October 8, 2008. Defendant's request for reargument was denied on November 21, 2008.
Owens v. State, 2008 WL 4511866 (Del.Supr. 2008).
5. On January 14, 2009, over one year after Defendant's case became final, he filed a motion for postconviction relief. Defendant's motion was returned to him as nonconforming because it failed to conform to the requirements of Superior Court Criminal Rule 61. On July 10, 2009, Defendant filed the subject motion for postconviction relief. By Report dated August 19, 2009, the Commissioner Recommended that Defendant's Motion for Postconviction Relief should be summarily dismissed. By Order dated October 22, 2009, the Superior Court accepted the Commissioner's Report and dismissed Defendant's Rule 61 motion.
6. On appeal, by Order dated May 27, 2010, the Delaware Supreme Court remanded this matter to the Superior Court for submission of Defendant's counsel's affidavit and whatever other factfinding the Superior Court deemed necessary to its reconsideration of Owens' postconviction claims.
7. Following the Delaware Supreme Court's remand, briefing was directed on the motion. Defendant's trial counsel submitted an affidavit and thereafter the State filed a response to the motion. Defendant was given an opportunity to file a reply but, for whatever reason, elected not to do so.
8. In the subject motion, Defendant raises various issues. One of the issues raised by Defendant is that his counsel was ineffective for failing to file a direct appeal in this matter. This issue will be considered first.
9. Defendant's counsel, in his affidavit, advises that after Defendant was convicted of most of the counts and a pre-sentence investigation ordered, it was determined that Defendant was habitual eligible and that if the State filed such a motion, Defendant would be facing life in prison pursuant to 11 Del. C. § 4214(b). The prosecutor indicated that he would be willing to enter into a sentencing agreement with Defendant and that instead of seeking life in prison as a habitual offender under 11 Del. C. § 4214(b), he would instead recommend a sentence as a habitual offender, pursuant to 11 Del. C. § 4214(a), of seven years at Level V followed by Level IV.
Affidavit of Kester I.H. Crosse, Esq., pgs. 2-3.
Id.
10. Defense counsel met with Defendant on August 23, 2007 to discuss the sentencing arrangement. On August 25, 2007, Defense counsel again met with Defendant at which time Defendant advised that he would agree to the sentence, if the State agreed not to pursue a habitual petition on his behalf. The State agreed to Defendant's terms and agreed not to pursue a habitual petition and, thus, an agreement was reached.
Id.
11. At sentencing, instead of Defendant receiving a possible life sentence or longer, Defendant received five years mandatory at Level V. Since there was an agreement that the State would forebear from proceeding with the habitual petition against Defendant, which was most beneficial to him, implicit in that agreement, was the agreement of Defendant that he would not appeal the sentence, since that would be detrimental to him. That was the understanding of the parties, including the understanding of Defendant. Indeed, the existence of the sentencing agreement was placed on the record at sentencing. Defendant was, of course, present during his sentencing, was present when the agreement was placed on the record, and never voiced any objection or disagreement with the existence or terms thereof.
Id.
September 21, 2007 Sentencing Transcript, pgs. 2-8.
12. It is Defense Counsel's firm belief that this agreement was fully discussed with Defendant. Defense counsel represents that "[t]his matter was fully discussed with the defendant and both he and [defense counsel] understood that no appeal was forthcoming." Had a direct appeal been filed, it would have been in conflict with the parties' agreement, and the State would then be permitted to proceed to sentencing him as a habitual offender, thus exposing Defendant to a life sentence. In short, there was no direct appeal, because that was the agreement between the parties, which defense counsel thoroughly discussed with Defendant and which was implemented.
Affidavit of Kester I.H. Crosse, Esq at ¶ 15.
Id. at ¶ 15-17.
13. Defense counsel was not ineffective for failing to file a direct appeal because Defendant understood that no appeal would be forthcoming. As previously stated, following receipt of Defense Counsel's Affidavit and the representations contained therein, and following receipt of the State's response, Defendant elected not to file a reply thereto. Significantly, Defendant has not denied Defense Counsel's representations that Defendant understood and had agreed that no direct appeal would be forthcoming.
14. Because there was an understanding that Defendant would not be filing a direct appeal, his counsel cannot be deemed ineffective for failing to do so. Moreover, Defendant, in his motion, does not provide any concrete allegations as to what grounds existed to warrant a good faith issue on appeal. Defendant merely alleged that his counsel was ineffective for failing to take a direct appeal and thereafter, after his counsel persuasively rebutted that allegation, Defendant chose not to refute his counsel's representations that Defendant understood that a direct appeal would not be filed.
15. We turn now to the remaining issues raised by Defendant in the subject motion for postconviction relief. Before addressing the substantive merits of any claim for post conviction relief, the Court must determine whether the defendant has satisfied the procedural requirements of Superior Court Criminal Rule 61. In order to protect the procedural integrity of Delaware's rules, the Court will not consider the merits of a post conviction claim that fails any of Rule 61's procedural requirements.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990).
16. In this case, Defendant's motion for post conviction relief is procedurally barred. Rule 61(i) (1) applies because Defendant filed this motion more than one year after his conviction became final. Rule 61(m) defines when the one year window for filing a motion for post conviction relief begins to run. In those cases, such as the present case, when the Defendant has not filed a direct appeal to the Delaware Supreme Court, the judgment of conviction is final, and the one year window for filing a motion for post conviction relief begins to run 30 days after the Superior Court imposes sentence.
Super.Ct.Crim.R. 61(i) (1) and (m) (1).
17. In this case, Defendant was sentenced on September 21, 2007, and therefore his conviction became final on or about October 21, 2007. The one year window for filing a motion for post conviction relief began on October 22, 2007 and ended one year later on or about October 22, 2008. Defendant failed to file his motion for post conviction relief during this applicable one-year limit. Indeed, Defendant did not file even his nonconforming postconviction motion until January 14, 2009, months after the one year period elapsed. Defendant's motion, filed outside the applicable one-year limit, is time-barred. Consequently, because Defendant's Rule 61 motion was filed "more than one year" after his conviction became final; Defendant's claims are procedurally barred because they are untimely.
18. This procedural bar, however, does 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.
Super.Ct.Crim.R. 61(i)(5).
19. The issues raised in this motion for post conviction relief could all have been raised in a timely filed motion. Indeed, the issues raised in this motion are all related to Defendant's counsel's conduct prior to trial, at the time of trial and shortly thereafter. Defendant does not raise anything that was recently discovered or which was not known during the one year window for the timely filing of a post conviction motion. There was no justifiable reason for Defendant's delay in and failure to timely raise this issue.
20. Obviously, Defendant was aware of, had time to, and the opportunity to raise all of the issues in his post conviction motion in a timely filed motion. There is no just cause for relief for Defendant's failure to timely file his motion for post conviction relief.
21. For the sake of completeness, even though procedurally barred, the issues Defendant raised in his Rule 61 motion will be addressed on their merits. Even if Defendant had filed a direct appeal, and even if his claims were not procedurally barred, as discussed below, Defendant has failed to raise any issues that have factual and legal merit.
22. In addition to Defendant's claim that he was denied the effective assistance of counsel because his attorney did not file a direct appeal on his behalf, Defendant also claims that he was denied the effective assistance of counsel because: (1) his attorney was hampered by "the Public Defender's policy and procedures"; 2) his attorney did not file certain pretrial motions; 3) his attorney did not adequately investigate the circumstances of his case; and 4) his attorney did not subject the State's case to meaningful adversarial testing.
23. To prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 687-88, 694.
24. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy. Furthermore, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.
Younger, 580 A.2d at 556.
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland, 466 U.S. at 689.
Id. at 691.
25. Defendant claims that he was denied the effective assistance of counsel because the Office of the Public Defender was overburdened. Defendant contends that his counsel did not appear at his arraignment and preliminary hearing and that during the course of 2006 to 2007, counsel handled 200 cases when the national average was 150 cases for attorneys in a Public Defender's office. Defendant's trial counsel responded to this allegation and denied that Defendant's defense was negatively impacted by the caseload of the Public Defender. Defendant's trial counsel represented that the Public Defender's office has adequate staff, including investigators and secretarial staff, such that attorneys in the Public Defender's office are capable of handling their caseload.
Affidavit of Kester I.H. Crosse, Esq. at ¶¶ 18-19.
Id.
26. Defendant's contentions regarding the lack of his counsel's presence at his arraignment and preliminary hearing are likewise without merit. Defendant was represented by an attorney from the Public Defender's office at each and every important step in the criminal process. Defendant fails to explain how the lack of appearance of a particular attorney resulted in actual prejudice to the Defendant. Since Defendant was properly represented at all hearings, Defendant has failed to make concrete allegations of actual prejudice and substantiate them. Defendant's trial counsel advises that he became involved with the case when it reached the Superior Court level and handled the matter properly with adequate support from his office. Defendant was properly represented at all hearings. Defendant, himself, has not established that he suffered any prejudice from the alleged understaffing of the defender's office. Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel.
Id.
Id.
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
27. Defendant next claims that his attorney was ineffective for failing to file a motion to quash his indictment, a motion for discovery, a Brady motion, a motion for a speedy trial, and a "meritorious" suppression motion. Defendant's trial counsel, in his Affidavit, responded that he did not file any of the motions suggested by Defendant because none were meritorious.
Affidavit of Kester I.H. Crosse, Esq. at ¶¶ 20-21.
28. As to Defendant's request that a motion be filed to quash his indictment, Defendant wanted to challenge the State's subject matter jurisdiction over him and its ability to enforce Delaware's laws against him, in light of his alleged status as a Moorish American National Sovereign. Defendant's position that the Superior Court did not have jurisdiction over him for crimes committed in Delaware is frivolous, and Defense Counsel was not ineffective for failing to file this motion which lacked merit. It is clear that Delaware courts have jurisdiction over criminal proceedings against defendants, even those of the Moorish American National Sovereign, for crimes committed in Delaware. Any contention that the Superior Court lacked jurisdiction over criminal proceedings against a defendant, in even a federally recognized tribe, for crimes committed in Delaware is legally frivolous.
See, Brown v. State, 2005 WL 1950213 (Del.) (membership in even a federally recognized tribe would not deprive the Superior Court of jurisdiction over the criminal proceedings against a defendant for crimes committed in Delaware).
Id.
29. As to Defendant's allegation that his attorney was ineffective for failing to file a motion for discovery violations, this allegation is also meritless and defense counsel cannot be deemed ineffective for failing to file a motion that was baseless. As defense counsel represents, discovery was produced and any Brady material is automatically granted to the defense by the State. There were no discovery violations committed and no basis for the filing any motion alleging to the contrary.
Affidavit of Kester I.H. Crosse, Esq. at ¶¶ 20-21.
30. As to Defendant's request that counsel file a motion for violating his speedy trial rights, there was no factual predicate for such a claim, and his counsel cannot therefore be deemed ineffective for failing to raise an issue which lacked merit. Defendant was arrested on February 8, 2007. The case was accepted in the Superior Court on February 21, 2007. Defendant was tried on August 2-3, 2007. Defendant was tried within 180 days of his arrest. There were no significant delays in the case, let alone any significant delay caused by the State. Defendant has not even alleged that there was some delay caused by the State which was somehow prejudicial to him. It is hard to imagine any case presenting a speedy trial violation when the defendant has been tried on felony charges within 180 days of his arrest. In this case, Defendant has not even come close to establishing a claim that his speedy trial rights were violated. Indeed, Defendant received the speedy trial to which he was entitled. Defendant was brought to trial within reasonable time limits. There is no support in the record to contend otherwise and counsel cannot be deemed ineffective for failing to file a motion that lacked merit.
In detainer cases, of which this case is not, there is a 180 day window for the case to be tried. That 180 day window begins to accrue from the date of a defendant's written notice of a request for final disposition to be made of the indictment as per 11 Del. C. § 2542 (a). The 180 day window is presumptively reasonable. In this case, which is not a detainer case, Defendant was tried within 180 days of his arrest.
See, State v. Lewis, 2002 WL 1335304, at *10-11 (Del.Super.) (unless there is some delay which is presumptively prejudicial, there is no necessity to inquire into any other factor that would go into the balance of a speedy trial right violation).
31. As to Defendant's request that defense counsel file a "meritorious" suppression motion, there was no meritorious suppression motion to be made and therefore defense counsel cannot be deemed ineffective for failing to file a motion with no merit. As defense counsel advises: "A Motion to Suppress was not necessary in that there were no statements taken from the Defendant and the evidence that was seized was in plain view."
Affidavit of Kester I.H. Crosse, Esq. at ¶ 20.
32. Indeed, Defendant was under surveillance and was filmed making hand to hand drug sales on the street. This evidence was produced in live testimony and in videos. When the police approached the defendant, he fled the area and the contraband was found on his person. In addition, it was observed that he threw certain contraband under a car, which was recovered. There was no basis to file a Motion to Suppress.
Id. at ¶¶ 20-21.
33. Defendant also contends that defense counsel was ineffective for failing to pursue DNA testing. Defendant fails to provide any specific factual support regarding this contention. Defendant fails to allege how any DNA testing would have furthered his defense. Identification was not an issue in this case. Defendant also fails to allege what specifically should have been tested. No blood or hair samples or any other type of physical evidence was admitted at trial, with the exception of the contraband seized from Defendant's person and the contraband that the police observed Defendant throw under a car. Defendant fails to allege specifically what should have been tested. He also fails to allege how the testing of anything in particular would be materially relevant to a claim of actual innocence. Defendant's claim that DNA testing should have been done is too conclusory and lacking in detail to establish a claim of ineffectiveness.
Younger v. State, 580 A.2d 552, 555 (Del. 1990); State v. Brown, 2004 WL 74506, *2 (Del.Super. 2004) (conclusory and unsubstantiated allegations of unprofessional conduct are insufficient to support a motion for postconviction relief).
34. Defendant next claims that his counsel inadequately investigated the circumstances of his case. Defendant's trial counsel discussed, in great detail, how he investigated Defendant's case. Defense counsel visited with Defendant at least six times to discuss the facts of the case. The facts of the case were adequately investigated. Defendant contended that defense counsel failed to interview or call to testify three witnesses (Sharon Young, Shaib Smith, and Dicky Burgos) that were subpoenaed. Defendant fails, however, to provide any information or detail as to how these witnesses would have furthered his defense. In fact, the witnesses that Defendant requested to be subpoenaed were spoken to and subpoenaed. Several of the witnesses failed to show for trial because they indicated that their testimony would be harmful to the defendant. One of the witnesses, Sharon Young, advised that she would not testify because she knew what conduct the defendant was engaged in. A couple witnesses could not be found. One of which was allegedly a crack head and his whereabouts were unknown. Defendant does not allege how any of the witnesses who did not testify at trial would have supported his defense.
Affidavit of Kester I.H. Crosse, Esq. at ¶¶ 22-24.
See Defendant's Motion for Postconviction Relief, at page 5 of the attachments to the motion.
Affidavit of Kester I.H. Crosse, Esq. at ¶ 23.
Affidavit of Kester I.H. Crosse, Esq. at ¶ 23; Exhibit E to Mr. Crosse's Affidavit.
35. Defendant has not suggested what evidence his attorney should have discovered had he performed a "more thorough" investigation. Although Defendant alleges that counsel failed to consider Defendant's character and background as mitigating evidence, the record reflects to the contrary. The record reflects that defense counsel was aware of Defendant's character and background and that it was considered as mitigating evidence. Indeed, the parties were able to reach an agreement on the sentence which was significantly reduced from life imprisonment (due to Defendant's habitual eligible status) because of Defendant's character and background.
September 21, 2007 Sentencing Transcript, pgs. 3-12.
36. Defendant has also failed to show that he suffered any actual prejudice from his attorney's alleged omissions. Defendant fails to state a legitimate ground for relief against his counsel. Defendant does not specify what should have been investigated that was not. Defendant also does not specify how doing something that counsel did not do resulted in any actual prejudice to him. Defendant does not make any concrete factual allegations, let alone concrete allegations of actual prejudice. Conclusory, unsupported and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super. 2007) (court need not address Rule 61 claims that are wholly conclusory, unintelligible and incoherent); State v. Chambers, 2008 WL 4137988, at *1 (Del.Super.).
37. Finally, Defendant claims that his counsel was ineffective because he did not subject the State's case to a meaningful adversarial testing. Defense counsel has denied this claim. Defendant's ineffective assistance of counsel claim in this regard is also undermined by the record. From a review of the record of the case including the trial transcripts, it appears that witnesses were sufficiently cross-examined and Defendant was adequately represented. Defense counsel's conduct does not appear to be deficient in any regard nor has Defendant established that he suffered any prejudice as a result thereof. Defendant has pointed to nothing in the record to demonstrate a lack of diligence on behalf of his counsel. Defendant has failed to make concrete allegations of actual prejudice and substantiate them. Defendant's allegations are unsubstantiated by the record and he fails to make concrete allegations as to what specifically counsel should have done differently and thereafter establish that had counsel done something differently the outcome would likely have changed.
Id. at ¶¶ 25.
38. In this case, Defendant has failed to overcome the procedural bar by showing a "colorable claim that there was a miscarriage of justice". The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances." The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider these otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
39. Defendant's request for an evidentiary hearing is hereby denied. Having carefully considered the parties' submissions and the evidentiary record, Defendant's allegations were, in fact, either reasonably discounted as not supported by the record, persuasively rebutted by counsel's affidavit, or not material to a determination of Defendant's claims.
For the reasons stated above, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.