Opinion
ID No. 0703029123(R-1).
Submitted: September 16, 2010.
Decided: December 1, 2010.
Supreme Court Case No. 2,2010.
Thomas A. Pedersen, Esquire, Georgetown, DE.
Adam Gelof, Esquire Department of Justice Georgetown, DE.
Bruce Rogers, Esquire Georgetown, DE.
Dear Counsel:
This is the Court's decision as to the remand order of the Supreme Court. Upon re-evaluation the Motion for Post Conviction Relief pursuant to Superior Court Criminal Rule 61 remains denied.
HISTORY
Following a jury trial in December 2007 Mr. Taylor was convicted of six (6) counts of Rape in the First Degree, one count of Continuous Sexual Abuse of a Child, and one count of Endangering the Welfare of a Child. A presentence report was prepared and the defendant was sentenced on February 15, 2008. The minimum sentence of 15 years as to each of the six counts of rape resulted in a de facto life sentence.
On direct appeal the convictions were affirmed. Taylor v. State, 2008 WL 5412205 (Del. Dec. 24, 2008).
The issues on appeal involved the introduction into evidence of a personal journal of the victim which the State and Defense were not aware of until the eve of trial. The start of trial was postponed a day to allow defense counsel to review the journal. The second appeal issue was that the verdict was based on insufficient evidence. The Supreme Court affirmed the conviction.
The victim is the defendant's daughter. Following a divorce in 1999, the victim lived with her father for several years. She reported she was raped while she was in the seventh or eighth grade and that this occurred every few months. She testified; and there was a CAC taped interview, as well as corroboration in the notes of her personal journal that she turned over to the State a few days prior to trial.
After the report of abuse was made an investigation took place. Then there was a lengthy period of time that the victim did not want to pursue the matter as she knew it would destroy her relationship with her paternal grandparents, with whom she was close. Subsequently, when her father initiated action to get visitation with the victim's younger sister, she came forward to prosecute the case out of concern for her sister.
POST CONVICTION MOTION
The defendant filed apro se post conviction motion, which was denied on December 7, 2009. The pertinent portion of the defendant's allegations for this decision are those that touch upon ineffective assistance of counsel. He alleged the following:
1. Failed to investigate evidence.
2. Did not do his job right because I need to pay him.
3. He did not ask questions I needed him to ask in court.
4. My attorney did not tell me he is a child advocate attorney. That is a conflict of interest.
I ruled that these claims were "denied as it is purely conclusory without any specific allegations, details or harm being pled."
On appeal the Supreme Court ruled "Our review of Taylor's claims of ineffective assistance, however, does not lead us to conclude that they are so conclusory that an expanded record is unnecessary."
The Supreme Court therefore remanded the case to Superior Court so that an affidavit of trial counsel may be obtained and, if necessary, conduct an evidentiary hearing. This Court, with the benefit of an extension, must report back to the Supreme Court by December 8, 2010. In the meantime Mr. Pedersen was retained by the defendant's family.
Trial counsel was asked to submit a Rule 61 (g) affidavit responding to the above allegations. This was to be done by October 27, 2010. Any counter affidavit by the defendant was to be filed by November 12, 2010.
On November 30, 2010, Mr. Pedersen advised the Court that no Rule 61(g) affidavit or submission would be made by the defendant.
To prevail on a claim of ineffective assistance of counsel a defendant must establish that (i) his trial counsel's representation fell below an objective standard of reasonableness, and (ii) but for counsel's unprofessional errors, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must set forth and substantiate concrete allegations of actual prejudice. Younger v. State, 580 A.2d 552, 556 (Del. 1990). Moreover, there is a "strong presumption" that counsel's representation was professionally reasonable. Strickland v. Washington, 466 U.S. at 689.
Mr. Rogers reports in his affidavit that he carefully reviewed all evidence obtained through discovery, as well as the information provided by his client, his family, and his "community supports". He then reviewed all of this evidence with his client.
As to matters concerning compensation, Mr. Rogers reports he has known the defendant and his family for decades. He denies making any statement pertaining to his representation or the quality of his work being conditioned on payment. He reports he continued representation despite being owed money and it was only when the defendant told him he would get paid when the defendant was released from jail that he withdrew.
Mr. Rogers reports he asked the questions the defendant wanted asked that he found in his professional opinion were relevant, admissible and appropriate. Mr. Rogers attached as an exhibit to his affidavit some of the communications from his client as to this issue.
As to conflict of interest claims, Mr. Rogers reports he has volunteered his time with the Office of the Child Advocate. Mr. Rogers does not believe such advocacy creates or created any conflict in representing Mr. Taylor.
Those portions of the affidavit which address claims involving matters other than ineffective assistance of counsel (the journal and no DNA) were not part of the remand, but the report filed by counsel as to the process in reaching certain tactical decisions evidence effective representation by Mr. Rogers.
What I initially thought were conclusory allegations have not been expanded on or clarified. Mr. Rogers' affidavit provides detailed information that specifically rebuts the defendant's claims. Since Mr. Rogers' affidavit has not been contested, I am satisfied that he effectively and zealously represented Mr. Taylor.
I find that Mr. Taylor has not met his burden of proof that his lawyer was ineffective. Nor has there been any prejudice shown as to the defendant's claims.
This matter is now returned to the Supreme Court pursuant to the remand.
IT IS SO ORDERED.