Opinion
I.D. NO. 9508003047.
Date Assigned: December 13, 1999.
Date Decided: April 4, 2000.
Upon Defendant's Motion for Postconviction Relief.
Jeron D. Brown, pro se.
Timothy J. Weiler, Esquire, Wilmington, Delaware, Attorney for the Defendant (at trial).
Jerome M. Capone, Esquire, Wilmington, Delaware, Attorney for the Defendant (on appeal).
Robert Surles, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
OPINION AND ORDER
The matter before the Court is the Defendant's motion seeking postconviction relief pursuant to Superior Court Criminal Rule 61. That which follows is the Court's resolution of the issues so presented.
FACTS
The Defendant was indicted for Burglary Third Degree, Theft of over $500 and Criminal Mischief on August 21, 1995. The Defendant was found guilty of all charges by a jury on July 18, 1996. The Defendant was declared a habitual offender and sentenced to eight years mandatory incarceration and two years probation on December 6, 1996. This conviction was appealed by the Defendant on January 8, 1997. The Defendant was represented by Timothy J. Weiler, Esquire during the trial and subsequently after the appeal was filed. Mr. Weiler filed a motion to withdraw as counsel and the Supreme Court appointed Jerome M. Capone, Esquire to represent the Defendant during the appeals process.
The Defendant raised three grounds on appeal. The first argument alleged that the Superior Court erred by sentencing him as a habitual offender. Further, he argued that the Superior Court erred by admitting an out-of-court identification. Finally, he argued that the police did not secure fingerprint evidence that might have been beneficial to his case, thus the Superior Court erred by not giving the jury a missing evidence instruction. On March 2, 1998, the Supreme Court affirmed the Defendant's conviction. See Brown v. State, Del. Supr., No. 534, 1996, Holland, J. (March 2, 1998) (ORDER).
The Defendant filed his first motion for postconviction relief on March 30, 1998. Three arguments were made. Initially, the Defendant argued that he received ineffective assistance of counsel at trial and on appeal of his convictions. Next, the Defendant alleged that there was prosecutorial misconduct. Lastly, the Defendant contended that there was an abuse of discretion and error of law by the Superior Court in its jury instruction on Burglary Third Degree, and in allowing the jury to hear evidence of the chain of custody of the items taken in this case. See Def's Mot. (March 30, 1998) at 3-4; and Def's Amend. (April 22, 1998) at 2.
On August 20, 1998, the Superior Court denied the Defendant's motion for postconviction relief. The Court found that the grounds regarding prosecutorial misconduct, abuse of discretion and error of law were procedurally barred since they were not asserted in the Defendant's appeal to the Supreme Court. Further, the grounds regarding ineffective assistance of trial and appellate counsel were determined to be without merit based on the test set forth inStrickland v. Washington, 466 U.S. 668, reh'g denied, 467 U.S. 1267 (1984). The Defendant filed an appeal of the Superior Court's August 20 decision on September 2, 1998. The Supreme Court affirmed the judgment of the Superior Court on May 21, 1999. See Brown v. State, Del. Supr., No. 388, 1998, Veasey, J. (May 21, 1999) (ORDER).
The court requested affidavits from Attorney Timothy J. Weiler and Attorney Jerome M. Capone which were received in August in response to the Defendant's contentious of ineffective assistance of counsel.
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy a two-part test. First the defendant must show that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must show that counsel's acts or omissions were prejudicial. Id. at 688-690.
The Defendant filed this petition for postconviction relief on December 1, 1999, followed by an amendment to his petition on December 10, 1999. His primary contentions again focused on ineffective assistance of trial counsel and prosecutorial misconduct.See Def's Mot. (December 1, 1999) at 3-4.
DISCUSSION
Before addressing the contentions raised by the Defendant, this Court must first determine whether any of the procedural bars in Super. Ct. Crim. R. 61(I) prevents consideration of their merits.Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990). Any ground for relief that was not asserted in a prior postconviction proceeding is thereafter barred, unless consideration of the claim is warranted in the interest of justice. Super. Ct. Crim. R. 61(I)(2). In addition, any ground for relief that has been formerly adjudicated in a postconviction proceeding is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice. Id. at 61(I)(4). Finally, "[i]f it plainly appears from the motion for post-conviction relief and the record of the prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified." Id. at 61(d)(4). As the following discussion demonstrates, the Defendant's motion falls within the category of postconviction relief claims which may be denied summarily.
In order to invoke the "interest of justice" provision of Rule 61(I)(4), a "movant must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him." Outten v. State, 720 A.2d 547, , 555 (1998) (citing Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990)).
The instant motion, which was filed on December 1, 1999, raises the same legal contentions as the former motion for postconviction relief denied on August 20, 1998. The Court fully addressed the Defendant's allegations of ineffective assistance of trial counsel in its August 20 decision denying the Defendant's motion for postconviction relief. The Defendant's claim of prosecutorial misconduct was determined to be procedurally barred in the same decision since it had not been previously raised in the Defendant's appeal of his conviction to the Supreme Court. To the extent that the Defendant has raised a claim that was not previously raised and/or adjudicated, consideration of that claim is barred by 61(I)(2). Moreover, in either case, whether the underlying contentions were previously adjudicated or were not raised by the Defendant, the Defendant has failed to set forth any basis where it would be in the interest of justice to consider his grounds for relief. Accordingly, those claims cannot ow be presented for resolution.
The foregoing discussion clearly indicates that the Defendant is not entitled to the relief sought. His prior efforts to overturn his conviction, directly or collaterally, have been denied and he has had his days in court. Nothing more is required. The Defendant's motion must therefore be, and hereby is, denied.
IT IS SO ORDERED.