Opinion
ID. No. 1906008931
01-15-2021
STATE OF DELAWARE v. ANDY J. BROWN Defendant.
Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Andy J. Brown, Pro se.
RK19-12-0002-01
Rape 4th Degree < 18(F)
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Andy J. Brown, Pro se. FREUD, Commissioner
The defendant, Andy J. Brown ("Brown") pled guilty on January 15, 2020 to one count of Rape in the Fourth Degree where the victim was under the age of 18, 11 Del. C. § 770. He was also charged with one additional count of Rape in the Fourth Degree, one count of Child Abuse, one count of Child Sexual Abuse, and two counts of Unlawful Sexual Contact in the Second Degree. As part of the plea deal the State agreed to enter nolle prosequis on the remaining charges and along with the defense recommended a sentence of fifteen years incarceration, suspended after serving one year followed by probation, with immediate sentencing. The Court agreed with the recommendation of the parties and sentenced Brown accordingly. Had Brown gone to trial and been found guilty as charged he faced many years in jail.
Brown did not appeal his conviction or sentence to the State Supreme Court. Next, Brown filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on April 2, 2020 in which he alleges ineffective assistance of counsel.
FACTS
In it's response to the motion the State outlined the facts of the case based upon the Affidavit of Probable Cause, the police report and various other documents as follows:
The investigation that led to the defendant's arrest began on Sunday, June 9, 2019, after M.B. Reported that the defendant sexually assaulted her while she was sleeping. The defendant was her 33 year-old uncle. M.B. was forensically interviewed at the Children's Advocacy Center of Delaware and she disclosed two instances of sexual abuse by the defendant. She described a July 2018 trip to Busch Gardens in Virginia with the defendant and his family. She recounted that during the trip numerous family members lodged in a single hotel room so she shared a bed with the defendant and his son. During the night she awoke to the defendant pulling her shorts and underwear down and placing his penis in her vagina. Prior to this incident, M.B. felt that the defendant was her "go to person" and she frequently confided in him.
M.B. recounted a second incident that led her to disclose the abuse to her parents and the police. She stated that on
June 9, 2019, there was a party at her home for her stepfather. The defendant was invited to the gathering and after the party he came into her bedroom to talk. When M.B. fell asleep, the defendant was on the floor at the foot of her bed. At some point M.B. awoke and noticed that she was not wearing any clothes, but she did not recall removing them herself. She heard the defendant walk out of her bedroom and she fell back to sleep. The defendant removed her bed sheets, rolled her over, and removed her underwear. The defendant later reentered her bedroom and laid on her bed. She felt him tapping her, but she pretended to sleep. He proceeded to perform cunnilingus on her and then engaged in penile-vaginal intercourse. The defendant ejaculated on her vagina and stomach and then wiped them both off with a towel. The defendant eventually left the house and returned to his home in Virginia. M.B. found the towel in the washing machine, removed the towel and hid it in her closet.
Later in the day, M.B. told her parents about the assault and the police were notified. She received a forensic examination at Bayhealth-Kent General Hospital. M.B. reported to the nurse that she had showered and cleaned her genital area prior to the examination. No injuries were noted during the urogenital examination; however, the nurse was not able to fully visualize the area because the victim did not want a speculum used during the procedure. Swabbings of her breasts and genital area were collected for further analysis. The police also collected the towel from the victim's closet. The towel and the forensic kit were sent to the Division of Forensic Science for testing. The DNA analysis showed the presence of spermatozoa and the defendant's DNA profile on the towel. M.B.'s DNA profile was also recovered from this towel. The swabbings from the victim's body did not indicate the presence of spermatozoa nor was male DNA detected. Spermatozoa was detected in the victim's underwear but
the laboratory was not able to amplify the DNA in a quantity sufficient enough to identify a genetic profile.
Detective Jason Kane of the Camden Police Department obtained an arrest warrant for the defendant on June 14, 2019, and he was subsequently charged by indictment with Sexual Abuse of a Child by a Person in a Position of Trust or Authority First Degree, a violation of 11 Del. C. § 778; Rape Fourth Degree, a violation of 11 Del. C. § 770; and Unlawful Sexual Contact Second Degree, a violation of 11 Del. C. § 768.
The defendant was apprehended in Virginia. A detective from the Williamsburg (Virginia) Police Department and Det. Kane interviewed the defendant at the Fairfax County Police Department on June 18, 2019. The defendant admitted that he was in the victim's bedroom until 4 or 5 o'clock in the morning but he claimed he left the room and slept in a spare bedroom. He stated that he spilled a drink in M.B's bedroom and used a towel to clean it up. He took this towel with him to the spare bedroom. The defendant told the detective that he has "a thing where he has to shine his trophy," or masturbate, prior to going to sleep. He described masturbating in the guest bedroom and using the towel to collect his ejaculate. He told investigators that he threw the towel into the washing machine the next morning. The defendant subsequently waived an extradition hearing and was returned to Delaware.
The victim in this case is a 16 year-old child. To protect her identity, the State is referring to her by the initials "M.B."
State v, Brown, Del. Super. ID No. 1906008931, D.I. 33 (footnotes omitted).
BROWN'S CONTENTIONS
In his Motion for Postconviction Relief Brown raises the following grounds for relief:
Ground one: Ineffective Assistance of Counsel.
Defense Counsel Michael R. Abram was in fact ineffective by not properly preparing his client Andy Brown for the next phases in his case. (No suppression of favorable evidence, unfulfilled plea agreement).
Ground two: Illegal Search and Seizure.
Camden Police Detective Kane administratively transferred the defendant, Andy Brown from Virginia to Camden police station, and obtained evidence from areas of the suspected crime scene ... that defendant was not in. ... Defendant Andy Brown is unaware how the Detective received such evidence that was unfavorable.
Ground three: Robinson Plea.
The Defendant Andy Brown was not informed of a Robinson Plea - bargain agreement by then counsel Michael R. Abram, Esq., during the Pre-trial phases of his (case). #1906008931, Cr. A. #IK191120002.
Ground four: The defendant has never been in jail nor incarcerated for any crime. Also, this is the Defendant's First Postconviction of Relief motion. The defendant was in pre-trial for seven (7) months and only met with his attorney twice. Michael R. Abram never prepared any defense case that would potentially go to trial, nor did he keep his clients (Andy Brown) best interest at hand for a better outcome of maintaining his innocence. Michael R. Abram ignored the Robinson Plea guidelines as an officer of the
Courts.
Note: Defendant did not list this as "Ground four" but it follows "Ground three" on page 3 of his Motion for Postconviction Relief.
Brown also filed a "Separate Memoranda Argument" along with his motion in which he reiterates his belief that his counsel was ineffective. It appears the basis for the allegations in the memoranda can be classified as Ground five as follows:
Ground five: Counsel was ineffective because of a "conflict of interest."
DISCUSSION
Under Delaware law, the Court must first determine whether Brown has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within one year of the conviction becoming final. Brown's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Brown's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
Super. Ct. Crim. R. 61(i)(1).
None of Brown's claims were raised previously at his plea, sentencing or on direct appeal. Consequently they are barred under Superior Court Criminal Rule 61(i)(3) unless he demonstrates: (1) cause for relief from the procedural default; and (2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or "to a claim that satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of Rule 61. To meet the requirements of Rule 61(d)(2) a defendant must plead with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted or that he pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United State or Delaware Supreme courts, applies to the defendant's case rendering the conviction invalid. Brown's motion pleads neither requirement of Rule 61(d)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Super. Ct. Crim. R. 61(d)(2)(i).
Super. Ct. Crim. R. 61(d)(2)(ii).
To some extent each of Brown's grounds for relief are premised on allegations of ineffective assistance of counsel. Therefore Brown has alleged sufficient cause for not having asserted these grounds for relief at trial and on direct appeal. Brown's ineffective assistance of counsel claims are not subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Brown, allege ineffective assistance of counsel in order to overcome the procedural default. "However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards." The United States Supreme Court has held that:
State v. Gattis, 1995 WL 790961 (Del. Super.).
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the
responsibility for the default be imputed to the State, which may not 'conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance;' [i]neffective assistance of counsel then is cause for a procedural default.A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
466 U.S. 668 (1984).
551 A.2d 53, 58 (Del. 1988).
In the context of a guilty plea challenge, Strickland requires a defendant show: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that counsel's actions were prejudicial to him in that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been his acquittal. The failure to establish that a defendant would not have pled guilty and would have proceeded to trial is sufficient cause for denial of relief. In addition, Delaware courts have consistently held that in setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. When examining the representation of counsel pursuant to the first prong of the Strickland test, there is a strong presumption that counsel's conduct was professionally reasonable. This standard is highly demanding. Strickland mandates that, when viewing counsel's representation, this Court must endeavor to "eliminate the distorting effects of hindsight."
Id. at 687.
Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60 (Del. 1988))(citations omitted).
See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465 at *1 (Del. Supr.)).
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)).
Strickland, 466 U.S. at 689.
Following a complete review of the record in this matter, it is abundantly clear that Brown has failed to allege any facts sufficient to substantiate his claim that his attorney was ineffective. I find trial counsel's affidavit, in conjunction with the record, more credible than Brown's self-serving claims that his counsel's representation was ineffective. Brown's counsel clearly denies the allegations.
Brown was facing the possibility of many years in jail had he been convicted on all counts. The sentence and plea were very reasonable under all the circumstances, especially in light of the eyewitness, physical and DNA evidence against him. Prior to the entry of the plea, Brown and his attorney discussed the case and the plea. The plea bargain was clearly advantageous to Brown. Counsel was successful in negotiating an extremely beneficial plea bargain with the State. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Brown entered his plea, he stated he was satisfied with defense counsel's performance. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Brown has failed to establish that his counsel's representation was ineffective under the Strickland test.
Brown was released from prison on May 26, 2020 and is currently serving his two year probation sentence in Virginia.
Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931, 937-938 (Del. 1994)).
Even assuming, arguendo, that counsel's representation of Brown was somehow deficient, Brown must satisfy the second prong of the Strickland test, prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk dismissal. In an attempt to show prejudice, Brown simply asserts that his counsel was ineffective by failing to adequately investigate the case, for not filing a motion to suppress, for not informing him about a Robinson Plea and for having an alleged conflict of interest. All of these claims are denied by counsel who outlined his efforts on behalf of Brown and his belief that a suppression motion would have been futile. My review of the facts of the case lead me to conclude that counsel's representation of Brown was well within the requirements of the Sixth Amendment and no prejudice has been demonstrated. His statements are insufficient to establish prejudice, particularly in light of the strong evidence against him. Therefore, I find Brown's grounds for relief are meritless.
Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del. 1990)).
To the extent that Brown alleges his plea was involuntary, the record contradicts such an allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty-plea hearing, the Court asked Brown whether he understood the nature of the charges, the consequences of his pleading , and whether he was voluntarily entering the plea. The Court asked Brown if he understood he would waive his constitutional rights if he entered the plea including the right to suppress evidence; if he understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty Plea Form ("Guilty Plea Form"); and whether he gave truthful answers to all the questions on the form. The Court asked Brown if he had discussed the his plea and its consequences fully with his attorney. The Court also asked Brown if he was satisfied with this counsel's representation. Brown answered each of these questions affirmatively. I find counsel's representations far more credible than Brown's self-serving, vague allegations.
Godinez v. Moran, 509 U.S. 389, 400 (1993).
State v. Brown, Del. Super., ID No. 1906008931 (Jan. 15, 2020) Tr. at 2-8.
Furthermore, prior to entering his plea, Brown signed a Guilty Plea Form and Plea Agreement in his own handwriting. Brown's signatures on the forms indicate that he understood the constitutional rights he was relinquishing by pleading guilty and that he freely and voluntarily decided to plead guilty to the charges listed in the Plea Agreement. Brown is bound by the statements he made on the signed Guilty Plea Form, unless he proves otherwise by clear and convincing evidence. I confidently find that Brown entered his plea knowingly and voluntarily and that Brown's grounds for relief are completely meritless.
Sommerville, 703 A.2d at 632.
CONCLUSION
I find that Brown's counsel represented him in a competent and effective manner as required by the standards set in Strickland and that Brown has failed to demonstrate any prejudice stemming from the representation. I also find that Brown's guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Brown's motion for postconviction relief as procedurally barred and meritless.
/s/ Andrea M. Freud
Commissioner AMF/dsc
oc: Prothonotary