Opinion
ID: 1106011736
03-31-2015
STATE OF DELAWARE v. WILLIAM BERRY, Defendant.
pc: Kate Keller, Deputy Attorney General Brian J. Chapman, Esquire William Berry, pro se, Defendant
ORDER
Upon Defendant's Motion for Postconviction Relief - SUMMARILY DISMISSED.
1. Defendant, then pro se, filed this first motion for postconviction relief on December 9, 2013, concerning his January 9, 2012 conviction by a jury of Possession of a firearm by person prohibited, Aggravated menacing, and Possession of a firearm during the commission of a felony. At the same time, Berry was acquitted of two counts of Possession of a firearm during the commission of a felony and two counts of Reckless endangering. The State dropped one count of Possession of a firearm by person prohibited.
2. Berry was sentenced on September 12, 2012, and his conviction was affirmed on direct appeal on April 3, 2013. The mandate was issued April 24, 2013. In his pro se motion, Berry made two claims. First, he alleged prosecutorial misconduct, claiming the prosecutor mentioned the ammunition magazine and showed it to the jury "after magazines were dismissed from the trial. . . ." Second, Berry alleged ineffective assistance of counsel for failing to move for severance of the Possession of a deadly weapon by person prohibited charge.
3. Instead of referring the motion as required by Superior Court Criminal Rule 61(d)(1), the Prothonotary improperly referred the motion to the then-New Castle County Criminal Assignment Judge, who entered an order appointing counsel on January 8, 2014. The procedural error here is harmless because appointment of conflict counsel in this case was appropriate, which involved a timely, first petition for postconviction relief, following a conviction at trial.
Super. Ct. Crim. R.61(d)(1): "A first postconviction motion shall be presented promptly to the judge who . . . presided at trial in the proceedings leading to the judgment under attack." --------
4. On November 21, 2014, Berry's Rule 61 counsel filed a Memorandum in Support of Motion to Withdraw as Counsel for Petitioner. The motion lays out the case's factual background and procedural history, and it discusses Berry's claims for relief. "After completing a comprehensive review of the Superior Court's docket, all motions and legal memorandum in the trial counsel's file, and the trial transcript, [Rule 61] counsel [found] no merit to [either of Berry's claims]." It bears mention that as to the prosecutorial misconduct claim, Rule 61 counsel viewed the evidence "in the light most favorable to Berry. . . ." Anyway, Rule 61 counsel notified Berry, who was then given 30 days to make his own submission, which he did not do.
5. Berry's claims about the magazines is hard to fathom. As he framed it, Berry's misconduct claim is barred because it was not raised in Berry's direct appeal. Recasting the claim as ineffective assistance of counsel for failure to object is unavailing. Two magazines were properly admitted into evidence as they held the ammunition for the handguns, also admitted. The prosecutor was entitled to show the evidence to the jury and argue about it. If the court could discern an error here, the error beyond a doubt does not account for Defendant's conviction.
6. As for severance, that is not required as a matter of law. Otherwise, as Rule 61 counsel concluded, the specifics of Berry's prohibition were kept from the jury. The court cannot say trial counsel's approach was subpar, nor can it say trial counsel's approach led to Berry's conviction. Here it bears mention that the verdict suggests the jury parsed the evidence objectively and consistent with the jury instructions. Trial counsel's approach was non-prejudicial.
For the foregoing reasons, after preliminary review, Defendant's motion for postconviction relief is SUMMARILY DISMISSED, and Rule 61 counsel's motion to withdraw is GRANTED. The Prothonotary SHALL notify Defendant.
IT IS SO ORDERED.
/s/_________
Judge
oc: Prothonotary (Criminal)
pc: Kate Keller, Deputy Attorney General
Brian J. Chapman, Esquire
William Berry, pro se, Defendant