Opinion
ID # 1012017349
11-18-2015
RE: State v. Ira Brown
oc: Prothonotary (Criminal Division) Andrew J. Vella, Deputy Attorney General Julie Finnochiaro, Deputy Attorney General
FRED S. SILVERMAN JUDGE Michael W. Modica, Esquire
715 North King Street, Suite 300
P.O. Box 437
Wilmington, DE 19899
Upon Defendant's Motion for Postconviction Relief - DENIED.
Dear Counsel:
This is the other shoe falling. In the fountainhead case, Ira Brown v. State, Defendant used Rule 61 unsuccessfully to challenge his guilty plea in a case involving the Office of Chief Medical Examiner scandal. This time, Defendant is using Rule 61 to challenge his conviction at trial, relying again on the OCME scandal.
108 A.3d 1201 (Del. 2015). --------
Specifically, Defendant alleges that because his trial counsel was unaware of the OCME situation, his counsel was ineffective. Defendant has not shown how trial counsel's efforts fell below the prevailing standards for defense counsel. Moreover, Defendant has not demonstrated prejudice flowing from trial counsel's shortcomings. Mostly, Defendant's motion is akin to a motion for new trial based on newly discovered evidence, the OCME situation.
After the motion was properly referred for preliminary consideration, the court called on the State to submit the drugs for re-testing, which it did. The results have come back and the re-testing confirms that the alleged controlled substances are, in fact, controlled substances above the trafficking weight.
Consistent with Rule 61 in an expanded record case, the court called-on Defendant to admit or deny the new evidence's correctness. Defendant denies the evidence's correctness because it seems to show a higher weight than was used against Defendant at his trial, and Defendant wants a hearing "to cross-examine the forensic chemist to determine the discrepancy resulting [from] the recent testing ...." In reply, the State offers an innocent explanation for the discrepancy.
Defendant has no theory as to how he is better-off now than he was at trial. At best, Defendant's request for an evidentiary hearing is justified only as a way for Defendant to see if he can come up with something. Meanwhile, as the State observes, on its face the re-testing only makes Defendant's trial position weaker. The re-testing confirms that the contraband is drugs and it weighs at least as much as the weight given to the jury at Defendant's trial.
Taking the expanded record into account, Defendant has failed both Strickland v. Washington tests. First, Defendant has failed to establish, taking into account what was known when Defendant went to trial, and then-current defense practices, Defendant's legal representation was substandard. Second, Defendant has not proved prejudice. At best, as mentioned, Defendant asks for an evidentiary hearing to see if something turns-up supporting a prejudice argument. As the record stands, however, neither a hearing nor a new trial would lead to a better result for Defendant. Accordingly, he has failed not only to rebutt the presumption of effectiveness, he has failed to demonstrate prejudice caused by counsel's failure.
For the foregoing reasons, Defendant's motion for postconviction relief under Superior Court Criminal Rule 61, including Defendant's demand for an evidentiary hearing, is DENIED. Due to my imminent retirement, any motion for reargument must be filed by return fax. This order shall be final and appealable by noon on November 20, 2015, any motion received after then is too late.
IT IS SO ORDERED.
Very truly yours,
/s/ Fred S. Silverman FSS:mes
oc: Prothonotary (Criminal Division)
Andrew J. Vella, Deputy Attorney General
Julie Finnochiaro, Deputy Attorney General