Opinion
No. 382, 2011
01-23-2012
JARAY M. HARRIS, Defendant, Appellant, v. STATE OF DELAWARE, Plaintiff, Appellee.
Court—Superior Court of the State of Delaware in and for Kent County
Cr. ID No. 0705025674
Before HOLLAND, BERGER and JACOBS, Justices.
ORDER
This 23rd day of January 2012, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The appellant, Jaray M. Harris, filed this appeal from the Superior Court's June 30, 2011 denial of his first motion for postconviction relief. The appellee, State of Delaware, has moved to affirm the Superior Court's judgment on the ground that it is manifest on the face of Harris' opening brief that the appeal is without merit. We agree and affirm.
Del. Supr. Ct. R. 25(a).
(2) At the February 25, 2008 conclusion of a Superior Court bench trial, Harris was found guilty of several drug offenses plus resisting arrest, third degree escape, first degree assault, and second degree assault. On direct appeal we reversed Harris' second degree assault conviction and affirmed the remaining convictions.
Harris v. State, 965, A.2d 691 (Del. 2009).
(3) On November 24, 2009, Harris filed a motion for postconviction relief. Harris alleged, in pertinent part, that his trial counsel was ineffective for not interviewing and subpoenaing Courtney Moody and Brandon Benson, the two individuals with whom Harris had allegedly escaped from custody.
Harris alleged other claims of ineffective assistance of counsel as well as a double jeopardy claim and a claim of insufficient evidence. He has not, however, pursued those claims on appeal. Therefore, those claims are considered waived and abandoned and have not been considered by the Court. Somerville v. State, 703 A.2d 629, 631 (Del. 1997).
(4) The Superior Court referred Harris' postconviction motion to a Commissioner for a report and recommendation. The Commissioner in turn directed that the State file a response to the motion and that Harris' trial counsel file an affidavit in response to the claim of ineffective assistance of counsel.
(5) On February 28, 2011, the Commissioner issued a report recommending that Harris' postconviction motion should be denied. On March 17, 2011, Harris filed objections to the report. After considering Harris' objections and reviewing the matter de novo, the Superior Court issued an order on June 30, 2011, adopting the Commissioner's report and denying Harris' motion for postconviction relief. This appeal followed.
(6) In his opening brief on appeal, Harris continues to allege that his trial counsel was ineffective for not interviewing and subpoenaing Moody and Benson. To prevail on his claim of ineffective assistance of counsel, Harris must demonstrate that his trial counsel's representation fell below an objective standard of reasonableness and was prejudicial, i.e., that but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceeding would have been different. Moreover, as the movant, Harris is required to substantiate concrete allegations of prejudice.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
(7) In this case, the Superior Court concluded, and we agree, that Harris' failure to allege the substance of the proposed testimony of Moody and Benson is fatal to his claim of ineffective assistance of counsel. In other words, Harris' conclusory allegation that the proposed testimony would have changed the result of the case is insufficient to establish that his trial counsel's failure to interview and subpoena Moody and Benson was prejudicial.
NOW, THEREFORE IT IS ORDERED that the motion to affirm is GRANTED. The judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Carolyn Berger
Justice