Opinion
ID No. 0204003496.
Submitted: October 6, 2005.
Decided: January 6, 2006.
Upon Consideration of Motion for Postconviction Relief. DENIED.
ORDER
This 6th day of January, 2006, upon Consideration of Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, it appears that:
1. Defendant, Jamah Grosvenor ("Grosvenor"), has filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons set forth below, Grosvenor's Motion is DENIED.
2. On December 11, 2002, Grosvenor plead guilty to two counts of Robbery in the First Degree and one count of Possession of a Firearm During the Commission of a Felony. On March 2003, Grosvenor was sentenced to seven years at Level V incarceration to be followed by eight years at decreasing levels of supervision. Grosvenor did not file a notice of appeal in the Supreme Court.
3. Instead, Grosvenor filed an original Motion for Postconviction Relief on April 7, 2003. That Motion was DENIED on March 30, 2004. The Supreme Court AFFIRMED on November 22, 2004.
4. On September 30, 2005, Grosvenor filed a Second Motion for Postconviction Relief. Defendant contends that he should be afforded postconviction relief because: 1) he has discovered new evidence; 2) his counsel was ineffective; and 3) he was not arraigned, pursuant to Superior Court Criminal Rules 10 and 43(a).
5. Before considering the merits of Defendant's motion, the Court must assess any procedural bars to postconviction relief. Superior Court Criminal Rule 61(i)(2) provides that 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. Furthermore, Rule 61(i)(4) provides that any ground for relief that was formerly adjudicated is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
6. First, Grosvenor contends that co-defendant's, Chris Gray ("Gray"), sworn affidavit constitutes newly discovered evidence to support previously adjudicated ineffective assistance of counsel claims. Specifically, Grosvenor asserts that the affidavit constitutes new evidence with respect to his claims that: 1) a conflict of interest existed; 2) his trial counsel coerced co-defendant Gray into taking a plea; and 3) the Prosecutor, Detective Corchoran of the Newark Police Department, and Gray's attorney, coerced Gray to testify against Grosvenor. To warrant a new trial on grounds of newly discovered evidence pursuant to Superior Court Criminal Rule 33, the Defendant must show that the newly discovered evidence is likely to change the result of the proceedings if the plea is allowed to be withdrawn; that the new evidence has been discovered since the proceedings leading to the judgment; and that it could not have been discovered before by the exercise of due diligence; and that it is not merely cumulative or impeaching. Grosvenor's claim of newly discovered evidence is legally insufficient to warrant a new trial. He has not indicated when he discovered this evidence nor has he alleged that the affidavit could not have been produced before by the exercise of due diligence. Moreover, the evidence is cumulative and merely repetitive of claims previously asserted in Grosvenor's First Motion for Postconviction Relief that was DENIED and subsequently AFFIRMED on November 22, 2004.
7. With respect to his other ineffective assistance of counsel claims, Grosvenor alleges that trial counsel failed to: 1) prepare for trial; 2) seek or reveal the State's forensic evidence that implicated him in the robbery; 3) file a motion to dismiss or merge the aggravating menacing and possession of a firearm during the commission of a felony charges; 4) adequately consult with him; and 5) file a motion for his trial to be severed. Grosvenor's second and third claims are procedurally barred pursuant to Superior Court Criminal Rule 61(i)(4). These issues were previously raised and rejected by this Court in Grosvenor's original Motion for Postconviction Relief. The Court sees no reason in the interest of justice that Grosvenor's grounds for relief should be reconsidered. Grosvenor was afforded full consideration by this Court and the Supreme Court in his prior Motion for Postconviction Relief. No further review is warranted.
The record reflects that Grosvenor's claims that counsel was ineffective because he failed to: 1) file a motion to sever his trial from Gray's; 2) prepare for trial; and 3) adequately consult with Grosvenor, were not raised in Grosvenor's original Motion for Postconviction Relief. These claims, however, are not barred by Rule 61(i)(2) because there is a colorable claim that there was a miscarriage of justice due to a constitutional violation that, inter alia, undermined the fundamental fairness of the proceedings. Nonetheless, these claims fail under Strickland v. Washington, and Flamer v. State. The test for ineffective assistance of counsel is (1) whether counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Additionally, there is a strong presumption that legal representation is professionally reasonable. Grosvenor's first claim that counsel was ineffective because he failed to file a motion to sever is immaterial and moot because the case did not proceed to trial. Defendant's second claim that counsel did not prepare for trial is also without merit. This Court cannot find that counsel's conduct fell below the objective standard of reasonableness even if he did decide not to proceed to trial. The Court notes that Grosvenor received only seven years of incarceration as opposed to the twenty-four years of incarceration that two of his co-defendants received after going to trial. Furthermore, it is not this Court's function to second-guess trial tactics. Defendant's last claim is that counsel failed to adequately consult with him. This Court finds that Grosvenor has not presented compelling facts to overcome the strong presumption of effective counsel. Therefore, his claim of ineffective assistance of counsel based on these claims must be denied.
8. Grosvenor's final claim is that he was not arraigned, pursuant to Super. Ct. Crim. R. 10 and Super. Ct. Crim. R. 43(a), and was therefore denied his fundamental right to be notified of the charges brought against him by the State. This claim is not barred by Rule 61(i)(2) because there is a colorable claim that there was a miscarriage of justice because of a constitutional violation.
The primary purpose of an arraignment is to notify the Defendant of the charges against him so he can adequately prepare to address them. Although the record reflects that Grosvenor was represented by counsel, was indicted and was placed on a "Fast Track" calendar, the docket does not indicate when or whether Grosvenor was arraigned. Failure to arraign a defendant, however, is not necessarily fatal to his conviction, as a waiver of arraignment may be implied from his participation in the trial, or other attendant circumstances. In Ray v. State, the Supreme Court of Delaware held that an implied waiver arose where the defendant's attorney entered a plea on behalf of the defendant and in his presence, where the trial was permitted to proceed on the basis of that plea as if an arraignment had been held, and where there was no objection made by a defendant for want of an arraignment, until after his conviction. Counsel for Defendant filed an entry of appearance on May 2, 2002. From that date, counsel aided Grosvenor in his court proceedings. The Court finds it impossible to believe that Grosvenor was not aware of the charges pending against him, especially once represented by counsel. Furthermore, an indictment was issued on May 20, 2002. Like an arraignment, the purpose of an indictment is to put the accused on full notice of what he is being called upon to defend. Under the facts and circumstances of this case, this Court finds that Grosvenor impliedly waived his right to an arraignment when his attorney entered a plea on his behalf, and he made no objection for want of an arraignment until after conviction. Grosvenor has not shown "cause" in the form of some external impediment, which prevented him from raising this claim earlier nor prejudice from the possible failure to be arraigned.
9. The Court, therefore, DENIES Defendant's Motion for Postconviction Relief for the above stated reasons.
State v. Grosvenor, 2004 WL 692720 (Del.Super.).
Grosvenor v. State, 2004 WL 2743543 (Del.Supr.).
The procedural bar of Rule 61(i)(2) is inapplicable, however, if there is a claim that the lower court lacked jurisdiction or there is a colorable claim that there was a miscarriage of justice because of a constitutional violation. Super. Ct. Crim. R. 61(i)(5).
See Super. Ct. Crim. R. 61(i)(4).
State v. Hamilton, 406 A.2d 879, 880 (Del.Super.Ct. 1974).
Grosvenor, 2004 WL 2743543.
A claim of ineffective assistance of counsel is a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding." See Super. Ct. Crim. R. 61(i)(5); Strickland v. Washington, 466 U.S. 668, 687 (1984).
466 U.S. 668 (1984).
585 A.2d 736 (Del. 1990).
Strickland, 466 U.S. at 688, 694.
Flamer, 585 A.2d at 753-54.
State v. Drummond, 2002 WL 524283, at *1 (Del.Super.).
See Super. Ct. Crim. R. 61(i)(5).
Ray v. State, 262 A.2d 643, 645 (Del. 1970).
Id.
Id.
Corbin v. State, 1998 WL 188562, at *2 (Del.Supr.).
Younger v. State, 580 A.2d 552, 556 (Del. 1990) (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).