Opinion
ID# 9605005835
Date Submitted: October 29, 2001
Decided: January 28, 2002
Dear Mr. Brown:
Pending before the Court is the motion of Patrick L. Brown ("defendant") for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is the Court's decision denying the motion.
FACTS
On May 9, 1996, defendant was arrested on the following charges: disorderly conduct; attempted robbery in the first degree (two counts); burglary in the first degree; possession of a firearm during the commission of a felony (four counts); conspiracy in the second degree (four counts); criminal mischief; robbery in the first degree (two counts); kidnaping in the second degree; and assault in the first degree.
A preliminary hearing took place on May 23, 1996, where probable cause was found on the felonies. The Grand Jury indicted defendant on July 15, 1996. Despite defendant's contentions, there was no joinder of indictments. He was indicted on twenty-nine (29) counts on that date. The State of Delaware ("the State") ultimately nolle prossed the first eleven counts and the twelfth count was dismissed during the trial. The case against defendant proceeded before a jury on the following charges on which defendant was indicted on July 15, 1996: attempted robbery in the first degree (counts 2 and 11); burglary in the first degree (count 3); possession of a firearm during the commission of a felony (counts 4, 9, 12 and 16); conspiracy in the second degree (counts 5, 10, 13 and 17); criminal mischief (count 6); robbery in the first degree (counts 7 and 14); kidnaping in the second degree (count 8); assault in the first degree (count 15); and disorderly conduct (count 18).
The indictment was amended to omit the charges which were nolle prossed.
The jury found defendant not guilty of the following charges: criminal mischief (count 6); robbery in the first degree (count 7); kidnaping in the second degree (count 8); and attempted robbery in the first degree (count 11). With regard to count 15, which charged assault in the first degree, defendant was found guilty of the lesser included offense of assault in the second degree. As to the remaining counts, he was found guilty as charged.
After being sentenced, defendant appealed to the Supreme Court, which affirmed the convictions. Brown v. State, 729 A.2d 259 (Del. 1999).
Dennis A. Reardon, Esquire initially was court-appointed to represent defendant. He represented him at his probable cause hearing. Thereafter, the Superior Court granted an order allowing Mr. Reardon to withdraw from representing defendant and appointed William B. Wilgus, Esquire to represent defendant. Mr. Wilgus represented defendant through the trial. After the trial, the Court granted Mr. Wilgus' motion to withdraw as counsel. John F. Brady, Esquire represented defendant at sentencing and on appeal to the Supreme Court.
DISCUSSION
Preliminarily, if there are any procedural bars to the claims in the postconviction relief motion, the Court must apply them. Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Rule 61 does not allow defendant to attack the following charges on which he was acquitted: criminal mischief (count 6); robbery in the first degree (count 7); kidnaping in the second degree (count 8); and attempted robbery in the first degree (count 11). Rule 61 is available only to address a judgment of conviction. Rule 61(a). Since there was no conviction on these counts, I ignore all of defendant's arguments regarding these counts.
This motion is not time-barred since it was brought within three years from the date when the conviction became final. Rule 61(i)(1). See Jackson v. State, 654 A.2d 829, 833 (Del. 1995). In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply.
However, most all of defendant's claims are procedurally barred because he failed to raise them at trial or on appeal or because they previously have been decided. Rule 61(i)(3) and (4). Normally, the Court would not consider these allegations on their merits. However, a review of the claims shows that I must consider most of the claims' merits in order to reach a determination that the exceptions to the procedural bars do not apply or that the claims do not establish the prejudice prong of the ineffective assistance of counsel claims. Since I find they are meritless, I am omitting the steps involved in determining that they are procedurally barred and that the exceptions to the procedural bars do not apply. Also, defendant bases many layers of arguments on each basic contention. I will not set forth all of the arguments. I merely will conclude that since the basic contention fails, all other contentions based thereon fail.
There also are additional claims of ineffective assistance of counsel which I must consider since they are not procedurally barred. State v. Johnson, Del. Super., Cr. A. No. 97-10-0164 (R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super., Cr.A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, Del. Supr., 637 A.2d 1174 (1997). State v. Gattis, supra at 7-9 sets forth the standard to apply to such a claim:
This type of claim is normally not subject to the procedural default rule, in part because the Delaware Supreme Court will not hear such a claim for the first time on direct appeal, and therefore as a practical matter the first opportunity to raise this issue is in a collateral attack such as the Rule 61 motion for postconviction relief. [Citations omitted.] For this reason, many defendants . . . allege ineffective assistance of trial counsel in order to overcome the procedural default.
However, this path creates confusion for the defendant if he does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. For example, the United States Supreme Court has stated that
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth amendment itself requires that 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.' Ineffective assistance of counsel, then, is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 487 (1986) (emphasis added). 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, 466 U.S. 668 (1984) and adopted by the Delaware Supreme Court in Albury v. State, Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant to show first that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Strickland at 687. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional errors the outcome of the proceedings would have been different, that is, actual prejudice. Id. at 694. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. [Citations omitted.]
Generally, the claim for ineffective assistance fails unless both prongs of the test have been established. Strickland at 687. However, the showing of prejudice is so central to this claim that the Strickland Court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697. In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone.
Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation." Strickland at 689. I now turn to defendant's various allegations.
The first basic contention, upon which defendant builds upon in asserting all sorts of other illegalities, is that his arrest on count 2 was illegal because a person cannot be arrested "for meritless accusation of attempt to commit a crime'".
The arrest warrant reads:
Compliant Number: 0596011687 Arrest Number: 192328
Charge: ATTEMPT TO COMMIT A CRIME FELONY B
— ENGAGE IN CONDUCT THAT CONSTITUTE A CRIME
In Violation of: 11-DE-0531-0001-F-B
***
TO WIT: PATRICK L BROWN, on or about the 9th day of May,
1996, in the County of SUSSEX, STATE OF DELAWARE, DID ATTEMPT TO COMMIT THE ACT OF ROBBERY 1ST DEGREE. DEFENDANT DID ATTEMPT TO GET MONEY FROM VICTIM GAMBRELL WHILE DISPLAYING A HANDGUN. [Emphasis added.]
This argument is ignored to the extent it addresses Count 11, on which defendant was acquitted.
Defendant was arrested for attempted robbery in the first degree. The warrant is clear that was the case. Thus, his contention he was arrested merely for attempting to commit an unspecified crime is a meritless argument. Consequently, all other arguments which are based upon this meritless contention, such as ineffective assistance of counsel, prosecutorial misconduct, illegal preliminary hearing, lack of jurisdiction, etc., fail.
The second contention addressed is that the warrant was illegal and/or invalid because it did not have a seal on it. The warrant should have had a seal on it. J.P. Ct. Civ. Rule 107. However, the lack of a seal is of no significance to the validity of the warrant and the warrant was otherwise in compliance with applicable law. Id. See 11 Del. C. § 5906(b); Super. Ct. Crim. R. 4(c). Furthermore, in light of the indictment and prosecution in Superior Court, the lack of a seal now is moot. All other arguments, such as lack of jurisdiction, ineffective assistance of counsel, illegal preliminary hearing, prosecutorial misconduct, etc., which are based upon this allegation fail, also.
The warrant for the arrest for the charge of disorderly conduct did have a seal on it. The other warrant containing the remaining charges did not.
This rule provides in pertinent part:
All judicial documents, including but not limited to, warrants . . . which emanate from a Justice of the Peace Court shall, whenever a signature of a judge is required, carry the seal of the Court. Notwithstanding the above, failure to carry the Court seal on a Justice of the Peace Court judicial document will not fatally affect said document so long as the document is sealed promptly after the omission is called to the attention of the Court.
In 11 Del. C. § 5906(b), it is provided:
(b) A warrant of arrest may be in the form prescribed by the Rules of Criminal Procedure for the Superior Court.
In Super. Ct. Crim. R. 4(c), it is provided in pertinent part:
Form. (1) Warrant. The warrant shall be signed by the committing magistrate and shall contain the name of the defendant. . . . It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available committing magistrate of the county in which the offense is alleged to have been committed or such other committing magistrate as provided by statute, court rule or administrative order. A copy of the complaint shall be attached to the warrant.
Defendant's next assertion to be considered is that the committing magistrate judge violated his due process rights by failing to remain neutral and detached. Defendant does not detail how the magistrate was not neutral and detached nor does he provide any facts in support of this contention. Conclusory allegations such as this fail. Younger v. State, 580 A.2d at 555. This claim and any others founded upon it fail.
I now examine defendant's contention that the indictment was illegal. He maintains the indictment was illegal because he actually was indicted in May and June and those two indictments were misjoined. Defendant was indicted once, on July 15, 1996. He was not indicted in May and June. Contrary to his contentions, there was no joinder of indictments. This argument is meritless. Consequently, all arguments based on it, such as prosecutorial misconduct, ineffective assistance of counsel, constitutional violations, illegality, etc. are meritless.
Defendant asserts the counts of the indictment were insufficient. There were no insufficiencies as defendants assert. These assertions fail and all arguments based upon them fail.
Defendant argues that the Superior Court committed plain error when it gave improper jury instructions regarding counts 2, 7, 11 and 14. Since defendant was found not guilty of counts 7 and 11, any arguments regarding error in the instructions for those counts are ignored.
As to Counts 2 and 14, defendant argues that the Court instructed the jury on the elements of robbery when defendant was not indicted on robbery. Defendant's argument is meritless. The instructions were in accordance with the law. Because the arguments are meritless, any and all arguments based on the underlying contention that the instructions were incorrect fail.
Defendant also argues that "intent" was not defined in Count 2. "Intent" was defined in the jury instructions. This claim, and all others based upon it, are meritless.
I now turn to two additional ineffective assistance of counsel claims.
Defendant argues trial counsel was ineffective for failing to attack the indictment as fatally defective because it failed to specify a specific overt act in each conspiracy count. Assuming that the trial court would have found the indictment to be defective, any pretrial motion only would have led the Court to deny the motion seeking dismissal of the indictment since there could have been no prejudice to defendant regarding the failure to specify what overt act occurred. State v. Arterbridge, Del. Super., Def. ID# 9901002825, Stokes, J. (June 26, 2000) at 6-7, app. dism., 768 A.2d 467 (Del. 2001). Defendant cannot show the ultimate outcome of the trial would have been different; consequently, this ineffective assistance of counsel claim fails.
Defendant argues counsel was ineffective for failing to request a specific unanimity instruction. Although he does not state it clearly, defendant attacks the Supreme Court's ruling that there was no plain error where a specific unanimity instruction was not requested. It does not matter that defendant considers the Supreme Court's decision to have been wrong. That Court has decided the issue. There was no error. State v. Brown, 729 A.2d at 264-66. Defendant cannot establish ineffective assistance of counsel regarding the failure of counsel to request a specific unanimity instruction because he cannot establish prejudice. This claim fails.
CONCLUSION
For the foregoing reasons, the Court holds that none of defendant's assertions are valid. Consequently, I deny his Rule 61 motion.
IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes