Opinion
ID No. 0801031784.
Submitted: November 29, 2010.
Decided: December 3, 2010.
Upon Defendant's Pro Se Motion for Postconviction Relief. Denied.
David Hume, IV, Esquire, Abby Adams, Esquire, Deputy Attorneys General, Department of Justice, Georgetown, Delaware, attorneys for the State.
Nicole M. Walker, Esquire, Office of the Public Defender, Wilmington, Delaware.
Dean C. Johnson, Esquire, Office of the Public Defender, Georgetown, Delaware.
David J. Buchanan, Pro Se Defendant.
MEMORANDUM OPINION
Defendant David J. Buchanan has filed his first Motion for Postconviction Relief, pursuant to Super.Ct.Crim.R. 61 ("Rule 61"). Defendant makes claims based on the constitutional ineffectiveness of trial counsel and appellate counsel. The Court has received affidavits from defense counsel and appellate counsel, as well as the State's Answer and Defendant's Reply. The Motion is denied.
Defendant filed a pro se postconviction relief motion on October 1, 2008. This Court returned the motion to Defendant because he was still represented by counsel. Thus, the motion at bar is deemed to be Defendant's first postconviction motion.
Facts
Defendant David Buchanan and his wife Barbara were divorced in September 2003. As part of the property division, the Family Court ordered the sale of the marital home and property on Hudson Road in Laurel, Delaware. Defendant refused to cooperate in the sale. On February 5, 2007, the Family Court ordered Defendant evicted from the property, but Defendant refused to leave.
On October 24, 2007, the Family Court issued a criminal contempt order, authorizing the State Police to remove Defendant from the property and directing the sale of the property. Defendant then filed for bankruptcy on behalf of his business, Buchanan Farms, and the Family Court stayed its orders. In its order dismissing the petition, the United States Bankruptcy Court observed that the issues were primarily related to division of marital property which should be fully and finally resolved in the Family Court of Delaware. On January 3, 2008, the Family Court lifted the stay of its eviction and contempt orders. Delaware State Police Corporal William Wallace ("Wallace") served Defendant with a copy of the reinstatement order and escorted him to the property to retrieve his belongings. Wallace told Defendant that if he returned to the property he would face criminal charges.
On January 26, 2008, Barbara and her new husband, David Richards, told the police that they wanted to enter the property to prepare it for sale. The police asked the couple to wait nearby while police checked the property. When Wallace arrived at the property, he saw smoke coming from the chimney and Defendant's truck parked outside. Wallace called Defendant on his cell phone and told him to come out of the house. Defendant denied being there. Police officers set up a perimeter around the house, and one of the officers saw Defendant running from the house. The police gave chase and arrested Defendant nearby.
A 20-gauge shotgun and 15 rounds of ammunition were found in the house. Also discovered was a broken lock set which Defendant had removed from the house, replacing it with one of his own.
On March 7, 2008, the Family Court granted Barbara's ex parte motion for a temporary Protection From Abuse (PFA) Order, which prohibited Defendant from possessing firearms, contacting Barbara or entering the property. Defendant was served with a copy on March 10, 2008.
On March 13, 2008, the Family Court held a hearing on the temporary PFA order and issued a permanent Order to the same effect. As Defendant left the courthouse, he got into his Honda Accord and drove away. Corporal Hudson Keller of the Delaware State Police was waiting for Defendant because he knew from DMV records that Defendant's license had been suspended. Keller followed Defendant and stopped him on Route 113 northbound. Based on Defendant's statement to Keller that there might be a handgun in the car, Keller searched the car. He found two pistols and ammunition. Defendant was arrested for possession of firearms and driving with a suspended license. The day after his arrest, the police installed a Global Positioning System (GPS) on Defendant's car pursuant to a Court Order.
Transcript, Vol. BB, at 56-61.
Posture
On March 24, 2008, Defendant was indicted as follows for charges stemming from the incidents on January 26 and March 13: one count of Burglary 3rd degree; one count of Criminal Contempt; one count of Possession of a Firearm During the Commission of a Felony (PFDCF); one count of Resisting Arrest; one count of Criminal Mischief; two counts of Carrying a Concealed a Deadly Weapon; and three counts of Possession of a Deadly Weapon by a Person Prohibited (PDWPP).
On April 1, 2008, Defendant filed an action for malicious prosecution in Chancery Court. When his complaint was dismissed for lack of jurisdiction, Defendant transferred the action to this Court. His multitude of filings blended the alleged facts of the criminal case and the civil case. This Court stayed the civil suit pending resolution of the criminal matter. When the criminal trial was over, the civil suit was dismissed with prejudice because it too was a malicious proceeding and because it failed to state a claim upon which relief could be based. The dismissal was affirmed on appeal. Buchanan v. State, 2010 WL 2680539 (Del.).
At trial on September 23 and 24, 2008, Defendant was found guilty of all charges except for criminal mischief and PFDCF. He was sentenced to nine years at Level 5 to be followed by probation. On appeal, his convictions were affirmed, with the exception of Burglary 3rd. Defendant filed a timely Motion for Postconviction Relief.
Buchanan v. State, 981 A.2d 1098 (Del. 2009).
Issues
Defendant asserts that both trial counsel and appellate counsel were constitutionally ineffective. To prevail on this type of claim, Defendant must show (1) by a preponderance of the evidence that defense counsel performed below an objective standard of reasonableness and (2) a reasonable probability that counsel's actions caused him actual prejudice at trial or on appeal. Mere allegations of ineffectiveness do not suffice; the defendant must make and substantiate concrete allegations of actual prejudice. Strickland applies to ineffectiveness claims against both trial and appellate counsel. The general principle is that appellate counsel need not raise every non-frivolous issue on appeal but may select from among them in order to maximize the likelihood of success on appeal.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Lewis v. Johnson, 359 F.3d 646, 656 (3d Cir. 2004)).
Smith v. Robbins, 528 U.S. 259, 285 (2000).
The Rule 61 motion was timely filed, and the other procedural bars do not apply to a first postconviction motion based on claims of ineffectiveness of counsel.
Despite the clear direction of this Court's First Amended Scheduling Order and the plain language of Rule 61(g)(3), Defendant's Reply raises new issues of attorney ineffectiveness. Where the Reply offers support for arguments raised in his Motion, the Court addresses the additional material in the analysis and resolution of the issue. Where the Reply raises new issues, which are not within the scope of a Reply, the Court resolves them in footnotes.
In responding to the State's Answer, the Reply rephrases Defendant's ineffectiveness issues as claims against the State. Because the substance of these arguments parallels the claims of ineffectiveness of counsel, the Court addresses them as such.
Defendant argues that trial counsel failed to (1) move to quash the indictment, (2) move to dismiss on double jeopardy grounds, (3) move to exclude evidence seized as a result of a pretextual traffic stop, and (4) argue that police lacked probable cause to search the marital home on January 26, 2007. He argues that appellate counsel failed to (1) present a viable defense, (2) present the correct version of 11 Del. C. § 1448(a)(6), and (3) argue that Defendant was not lawfully prohibited from possessing deadly weapons pursuant to § 1448(a)(6).
Discussion
Defendant argues that pursuant to State v. Robinson, the indictment for the charges of PDWPP should have identified the prior charge with a brief statement, the court presiding over the prior proceedings, the case number and the date of the determination. Robinson held that "[w]ithout that much detail, at least, the indictment must be held to be fatally deficient as violative of due process of law." In Godwin v. State, this Court and the State acknowledged that Godwin's indictment for PDWPP was flawed for lack of specificity. However, the trial court denied Godwin's motion for judgment of acquittal, finding that the objection to the indictment could have been made before trial and that Godwin was on notice of his prior convictions. On appeal, the Delaware Supreme Court reiterated the Robinson holding but concluded that the trial court had not abused its discretion because under Rule 12(b)(2) and 12(f) Godwin had waived the defense by not rasing it before trial.
251 A.2d 552, 554-55 (Del. 1969).
Id. at 555.
2006 WL 1805876 (Del.).
Id. at *2.
In Counts 7, 9 and 10 of the indictment, Buchanan was charged with PDWPP as follows:
David J. Buchanan, on or about the 13th day of March, 2008, in the County of Sussex, State of Delaware, having been subject to a Family Court Protection From Abuse Order on March 13, 2008, did have in his possession a deadly weapon . . . in violation of Title 11, § 1448(a)(6) of the Delaware Code.
Thus, the only Robinson factor not provided in the charges is the case number of the Family Court proceeding, but Buchanan was given sufficient notice of the charges and was able to prepare his defense because the indictment did give the date of the PFA Order, leaving no question of which PFA was referenced.
Defendant cannot meet either prong of Strickland on this issue. Trial counsel's representation did not fall below an objective standard of reasonableness because the indictment was sufficiently specific to put him on notice of the charges and to prepare his defense. Moreover, if counsel had raised the issue prior to trial, the Court would have permitted an amendment adding the case number, pursuant to Super.Ct.Crim.R. 7(e). As it was, the Supreme Court, as in Godwin, would not have addressed the issue on appeal because it was not preserved below. Regardless, Defendant cannot show attorney error or prejudice.
Defendant's double jeopardy argument is based on the fact that the Family Court found him to be prohibited from possessing deadly weapons pursuant to 11 Del. C. § 1448(a)(6) and that a Superior Court jury found him guilty of violating the same statute. This is a meaningful distinction. A PFA proceeding is a civil matter, whereas conviction for violating 11 Del.C. § 1448(a)(6) is a criminal matter. In a PFA action, the respondent is prosecuted by the petitioner (usually the victim), and the standard of proof is by a preponderance of the evidence.
State v. Manista, 651 A.2d 781, 785 (Del.Fam. 1994).
Id.
On the other hand, in a trial for PDWPP, the State prosecutes the defendant and must prove its case beyond a reasonable doubt. Here, the PFA order was based on a finding that Defendant had committed an act of domestic violence, which is a civil matter within the jurisdiction of the Family Court. The conviction in Superior Court for PDWPP was a criminal conviction based on the jury's verdict that Defendant was a person prohibited via the PFA order and that he was in possession of deadly weapons at the time of his arrest. Thus, the only criminal prosecution for violation of § 1448(a)(6) was in Superior Court, and Defendant's protection from double jeopardy was not violated. Neither trial counsel or appellate counsel was ineffective for failing to raise this issue.
Defendant argues that counsel was ineffective for failing to move to suppress evidence obtained from his Honda Accord on March 13, 2008, because the stop for driving with a suspended license was a pretext for searching his car for weapons without a warrant. Trial counsel responds that such a motion was filed but was denied by this Court prior to trial. The record shows that the defense moved to suppress evidence gained from the allegedly unlawful placement of a GPS locator on Defendant's car. This Court held an evidentiary hearing on September 22, 2008.
Transcript (Sept. 22, 2008).
The next day, prior to trial, the Court ruled against the defense, finding that the police were authorized by 21 Del. C. § 701(a)(1) to arrest Defendant without a warrant for violation of Title 21 in the officer's presence, knowing that he was driving with a suspended license. The defense had also argued that the traffic stop was a pretext for the purpose of installing a GPS on Defendant's car. This Court found first that under State v. Darling, the police had probable cause for the stop because of the suspended license and second that the State was offering evidence obtained prior to the installation of the GPS, that is, as a result of the inventory search, but nothing from the GPS.
In his Reply, Defendant repeatedly states that his license was not revoked at the time of his arrest on March 13, 2008. He offers no support for this assertion. At trial, Corporal Hudson Keller of the Delaware State Police testified that he ran Defendant's license number through DMV records and learned that the license was suspended prior to making the arrest. Transcript, Vol. BB, at 58. This testimony is unrefuted.
2007 WL 1784185 (Del. Super.).
Transcript (Sept. 23, 2008) Vol. B, at B8-B12.
Defendant now argues that the stop was a pretext for a search for deadly weapons. This Court has already ruled that the police had probable cause to make the stop and that the inventory search associated with impoundment was reasonable. The Court also found that when the officers made the stop they did not suspect that Defendant had weapons in his possession. Defendant has added nothing new to support his assertion that counsel was ineffective, and the Court's previous rulings stand.
Id. at B-8.
Id. at B-11.
In his Reply, Defendant challenges the seizure of firearms from his car on different grounds. He argues that counsel was ineffective for failing to argue that the Family Court exceeded its authority under 10 Del.C. § 1045(a)(11) (2008 Supp.) in the March 13, 2008 PFA. Section 1045(a)(11) authorizes the Family Court to issue a PFA directing police to seize a respondent's weapons if the petitioner meets a two-part test. However, the police seized Defendant's weapons after he was stopped for driving with a suspended license and told police there might be a firearm in the car. The seizure was a result of Defendant's statement, not pursuant to the PFA. Moreover, Defendant has not shown that the requirements of § 1045(a)(11) were not met. Defendant has not shown either attorney error or prejudice under Strickland.
Defendant argues that trial counsel failed to argue that the police lacked probable cause to enter the marital property on January 26, 2008. The record shows that the Family Court issued a valid Order of Reinstatement of its prior orders of eviction and contempt, thereby authorizing the State Police to physically remove Defendant from the property. Defendant's argument has no basis in law or in fact.
Buchanan v. State, 981 A.2d at 1099.
In his Reply, Defendant asserts that counsel was ineffective for failing to argue that the Family Court Order of Reinstatement of its earlier eviction and contempt orders, dated January 3, 2008, was a temporary order that was not valid when he was arrested on January 26, 2008. At trial, the State entered into evidence the Order of Reinstatement as State's Exhibit 2. The Order is a final order properly issued under the jurisdiction of the Family Court. It was in full force and effect when State Police arrested Defendant. This claim meets neither prong of Strickland.
Defendant's Reply also asserts ineffectiveness for counsel's failure to argue that if a Family Court hearing had been held on issues regarding marital property, Defendant's ex-wife would have been precluded from raising any property claims because such claims were adjudicated in Bankruptcy Court pursuant to Bankruptcy Rule 3002(c), which establishes filing deadlines in bankruptcy proceedings. This claim is misguided. In affirming the dismissal with prejudice of Defendant's petition, the District Court of Delaware found that the Bankruptcy Court correctly determined that the Family Court stay should be lifted so that the Family Court could take any action necessary to resolve and execute the Buchanans' distribution action. In re Buchanan, 2007 WL 2828019, at *1 (D.Del.). Defendant has not shown attorney error or prejudice under Strickland.
Defendant argues that appellate counsel presented the Supreme Court with an incorrect version of 11 Del.C. § 1448(a)(6). Because he does not explain his meaning and offers no supporting facts or information, this conclusory assertion fails.
Defendant argues in conclusory fashion that trial counsel and appellate counsel failed to present a viable defense. Appellate counsel points out that she challenged Defendant's conviction for burglary 3rd degree, which was reversed on appeal. As stated previously, under Smith v. Robbins, appellate counsel has no duty to raise every non-frivolous issue on appeal but may select appropriate issues in order to maximize the likelihood of success. Appellate counsel clearly met this standard.
528 U.S. 259, 288 (2000).
In his Reply, Defendant explains that the assertion of no viable defense pertains to counsel's failure to challenge the firearms prohibition. This issue is resolved in the following section of this Opinion, as it was appropriately raised in the postconviction relief motion.
Defendant argues that trial counsel and appellate counsel were ineffective for failing to argue that Defendant was not lawfully prohibited from possessing deadly weapons pursuant to 11 Del. C. § 1448(a)(6). In the final PFA Order of March 13, 2008, Defendant was prohibited from possessing deadly weapons pursuant to § 1448(a)(6) because of the Commissioner's "finding of abuse based upon 10 Del. C. sec. 1041(1)(a), (b), (c), (f) or (g)."
Richards v. Buchanan, Order of Protection from Abuse, Case No. 08-7771 (Del.Fam., March 13, 2008).
The next day, March 14, 2008, the Family Court issued a "supplemental disposition supporting the Court's issuance of a Protection from Abuse Order on March 13, 2008." The Supplement provided details of Defendant's dangerous and unlawful conduct leading to the final PFA Order, stating that "section 1041(1)(e) of Title 10 defines abuse as including "trespassing . . . on or in property from which the trespasser has been excluded by Court order." The Supplement did not reference any other subsection of § 1041(1).
Richards v. Buchanan, Supplemental Disposition, Case No. 08-07771 (Del.Fam., March 14, 2008).
Title 11 Del.C. § 1448(a)(6) provides as follows:
(a) Except as otherwise provided herein, the following persons are prohibited from purchasing, owning, possessing or controlling a deadly weapon or ammunition for a firearm with the State:
* * *
(6) Any person who is subject to a Family Court protection from abuse order (other than an ex parte order) . . . except that this paragraph shall not apply to a contested order issued solely upon § 1041(1)d., e., or h. of Title 10, or any combination thereof.
If the supplemental disposition of March 14, 2008, which references only § 1041(1)e., supercedes the PFA Order of March 13, 2008, then Defendant was not lawfully prohibited from possessing deadly weapons, pursuant to the exception stated in 11 Del.C. § 1448(a)(6).
Defendant argues that the Supplement is a correction of the PFA Order, rendering it void, while the State argues that it supplements the PFA Order and does not supercede it. Trial counsel and appellate counsel both state that the March 13th PFA was determinative and was not based solely on trespassing. The Supplement sets forth in great detail the risk of harm created by Defendant's refusal to abide by the previous order prohibiting him from entering the marital property. Furthermore, 10 Del.C. § 1041(1)e., which is subject to the exception created in 11 Del.C. § 1448(a)(6), provides as follows:
(1) "Abuse" means conduct which constitutes the following:
* * *
e. Trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order. . . .
The Court rejects Defendant's argument that the Supplement is a correction of the PFA Order. The State's assertion that the Supplement adds the reference to § 1041(1)e. to the PFA's references to § 1041(1) a., b., c., f. and g is persuasive. The Family Court felt the need to relate the grave danger that Defendant posed by trespassing on the property and stocking the house with loaded weapons. The Supplement is what it says it is — a supplement to the final PFA Order. Therefore, Defendant was lawfully prohibited from possessing deadly weapons pursuant to 11 Del.C. § 1448(a)(6) and 10 Del.C. § 1041(1)a., b., c., f. and g., as stated in the PFA Order.
In his Reply, Defendant argues that appellate counsel was ineffective for failing to move for reargument based on the fact that the Family Court hearing on the final PFA focused on contract law and property division, not on acts of violence. The transcript shows that the Commissioner based his conclusions in large part on the risk posed to Barbara Richards by Defendant's continued presence on the property and the loaded weapons that he kept there.
Reply, Attachment A, Transcript of PFA Hearing, March 13, 2008.
In his Reply, Defendant also argues that the Family Court decision dated May 9, 2008, denying Defendant's appeal of the March 14, 2008 supplemental PFA Order also negates the firearms prohibitions because the decision refers only to 10 Del.C. § 1041(e). The Family Court agreed with and quoted the Commissioner's characterization of domestic violence as "the use or threat of violence or other coercive means to exercise power and control over a person with whom the perpetrator has or had a relationship of trust either as an intimate partner or as part of a family." The nature of the supplemental disposition was not litigated, and the Family Court's decision therefore did not negate the final PFA Order dated March 13, 2008, prohibiting Defendant from possessing firearms.
In re Buchanan, Del.Fam., No. CS94-3107, Hendrickson, J. (May 9, 2008) (included in Defendant's Reply as "Attachment B")).