Opinion
I.D. No. 9701006047 Cr.A. Nos. VN97-01-0884R1, 0885R1, 9888R1, 0892R1, IN97-01-1639R1, 1641R1
Date Submitted: July 10, 2002
Date Decided: September 10, 2002
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF. DENIED.
Paul R. Wallace, Esquire, Deputy Attorney General, Wilmington, Delaware for the State.
Terrence Jones, Defendant, pro se.
Defendant Terrence Jones has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons set forth below, defendant's Motion is summarily denied.
In November 1997, defendant ("Jones") was tried before a Superior Court jury on multiple criminal charges arising from the robbery of a Dollar Express store in Stanton, Delaware. The jury found him guilty of Second Degree Conspiracy but was unable to reach a unanimous verdict as to the remaining counts. A second trial was held in July 1998. Defendant was found guilty of First Degree Robbery, two counts of Attempted First Degree Robbery, Second Degree Assault, Second Degree Burglary, Wearing a Disguise During the Commission of a Felony, and five counts of Possession of a Firearm During the Commission of a Felony. Defendant was sentenced to one hundred sixty years at Level V followed by probation.
A timely notice of appeal was filed. Jones' counsel filed a brief and Motion to Withdraw pursuant to Supreme Court Rule 26(c). In the Motion to Withdraw, appellate counsel represented that he had conducted a complete and careful examination of the record and concluded that there were no meritorious appealable issues. By letter, counsel informed Jones of the provisions of Rule 26(c) and provided a copy of the Motion to Withdraw and accompanying brief. Jones was informed of his right to supplement his attorney's presentation.
Jones filed a lengthy response complaining about numerous aspects of his trial. The Supreme Court was able to identify only five cognizable legal issues. First, Jones attacked the credibility of the witnesses against him. Second, he attacked the performance of his trial counsel in several respects. Third, he contended that the prosecutor made a misleading and prejudicial statement in his opening statement. Fourth, Jones alleged that the jury may have been tainted by media coverage of the case. And finally, Jones argued that he was unfairly prejudiced by the testimony of one witness who suggested that Jones had engaged in prior criminal misconduct.
The Delaware Supreme Court concluded that Jones' appeal was "wholly without merit and devoid of any arguably appealable issue". The Court also stated that it was satisfied that Jones' counsel had made a conscientious effort to examine the record and "properly determined that Jones could not raise a meritorious claim in this appeal".
Jones filed the instant Motion for Postconviction Relief on June 5, 2002. It is the first such motion he has filed. In his motion, Jones raises seven separate grounds for relief which are summarized as follows:
Ground One — Indictment failed to define firearm movant allegedly possessed "rendering uncertainty as to the meaning".
Ground Two — Jones submits that his counsel was ineffective for failing to raise the same argument that he asserts in Ground One, i.e. lack of evidentiary detail in the indictment for failure to define the firearm.
Ground Three — Defendant claims that the Trial Court erred in excluding "evidence of material state witness Hopkins". He asserts the language of Rule 61(i)(4) that reconsideration of the claim is "warranted in the interest of justice", seemingly alleging that he was precluded from impeaching the witness' testimony.
Ground Four — Jones argues that he was denied ineffective assistance of counsel on appeal because the trial judge's decision denying "such motion" is reviewable on appeal.
Ground Five — Defendant argues that the State failed to prove the nature and element of the assault to Joanne Santiago with a handgun. He again repeats the language of Rule 61(i)(4) that "reconsideration of the claim is warranted in the interest of justice" asserting that he was prejudiced by irreconcilable conflict in the State's case because one witness' testimony contradicted that of another.
Ground Six — Jones asserts ineffective assistance of counsel again, claiming that his attorney did not raise on appeal the claim that he asserts in Ground Five. He argues that his counsel did not raise insufficiency of the evidence at the close of the State's case, "on the premises of irreconcilable conflict in the State's case" concerning the evidence of physical injury to Santiago with a handgun.
Ground Seven — Jones claims ineffective assistance of counsel on appeal alleging that his attorney failed to advise him of possible grounds for appeal and failed to advise him of his "opinion of the probable outcome" of an appeal, and "failed to include all significant trial applications and rulings." He argues that counsel's Rule 26(c) brief was against his interest.
* * *
When considering a Motion for Postconviction Relief, the Court must first consider the procedural bars of Rule 61(i) before considering the merits of the individual claims. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, Del. Super. Cr.A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger, 550 A.2d at 554 (Del. 1990)).
Under Rule 61(i)(1), postconviction claims for relief must be brought within three years of the conviction becoming final. Defendant's motion was filed almost three years to the day that the Supreme Court mandate issued, thus barely avoiding the bar of Rule 61(i)(1). As this is Defendant's initial motion for postconviction relief, the bar of Rule 61(i)(2), which precludes consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Some of Defendant's grounds for relief were raised on direct appeal. Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred unless consideration of the claim is warranted in the interest of justice." The "interest of justice exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant]."
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (1990)).
Lastly, Rule 61(i)(3) contains another bar, by providing that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default, and (B) [p]rejudice from violation of the movant's rights." The procedural bars of Rule 61 may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraphs (1), (2), and (3)" shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal."
Younger 580 A.2d at 555.
For the reasons set forth below, the Court finds that Defendant's first ground for relief is procedurally barred pursuant to Rule 61(i)(3), and that Grounds Three and Five are procedurally barred pursuant to Rule 61(i)(4). Grounds Two, Four, Six, and Seven, all of which allege ineffective assistance of counsel, will be considered on the merits.
In Ground One, Defendant raises for the first time that the indictment failed to define the firearm that he was charged with possessing during the commission of other crimes charged in the indictment "rendering uncertainty as to the meaning." Defendant did not assert this claim prior to trial by a request for a Bill of Particulars, at trial, or on appeal. Thus, it is barred unless Defendant can show both cause for procedural fault and prejudice, or otherwise qualify for the "fundamental fairness" exception contained in Rule 61(i)(5). As best as the Court can discern, Defendant's argument on this ground is simply that the indictment was defective for failing to "define the firearm." Defendant has utterly failed to explain why the type of firearm needed to be described with any greater specificity or how he was prejudiced by the wording of the indictment, other than to offer this conclusory and unsubstantiated claim. The Court will not address claims of cause for relief and prejudice that are conclusory and unsubstantiated. Defendant's claim of insufficiency of the indictment is therefore without merit.
Zimmerman v. State, 1991 WL190298 (Del.Super.Ct.) (citing State v. Conlow, Del. Super., Cr.A. Nos. IN78-09-0985-RI, Herlihy, J. (Oct. 5, 1990)).
Grounds Three and Five are also procedurally barred. These challenge some of the trial Court's evidentiary rulings and the sufficiency of the State's evidence at trial to establish the elements of the offense of assault. Although his claim is not entirely comprehensible, defendant appears to rely upon inconsistencies in the witnesses' testimony at trial as a basis for Rule 61 relief. These issues have already been considered and rejected by the Delaware Supreme Court in its decision on appeal. In commenting on the sufficiency of the evidence and the credibility of the witnesses, the Court held:
Jones' first contention on appeal is that the testimony of the witnesses who testified against him were not credible in many respects. He points out alleged inconsistencies in some of the witnesses' testimony and offers reasons why some other witnesses were motivated to offer perjured testimony against him. Under Delaware law, however, the jury is the sole trier of fact, responsible for determining witness credibility and resolving conflicts in the testimony. Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980). In this case, it was entirely within the jury's discretion to accept the State's evidence, and we find that the evidence presented was sufficient as a matter of law to sustain the jury's verdicts. See, Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982). Consequently, Jones' first contention is without merit.
Having found that Grounds One, Three and Five are procedurally barred under Rule 61, the Court will consider the remaining Grounds Two, Four, Six, and Seven, each of which are premised upon allegations of ineffective assistance of counsel. This type of claim is 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.
A criminal defendant who raises an allegation of ineffective assistance of counsel must show that an attorney's conduct did not meet reasonable professional standards so that such conduct was prejudicial to the defendant. It is the defendant's burden to show, under the totality of the circumstances, that "counsel was so incompetent that the accused was not afforded genuine and effective legal representation." Second, under Strickland, a defendant must show that there is a reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different; that is, he must show actual prejudice. Stated another way, a defendant alleging prejudice must be able to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 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.
Strickland v. Washington, 466 U.S. 668 (1984).
Renai v. State, 450 A.2d 382, 384 (Del. 1982) (citations omitted).
Strickland 466 U.S. at 687.
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997); Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989).
A defendant's burden to establish a claim of ineffective assistance of counsel is difficult since there is a strong presumption that the attorney's conduct was reasonable. Defendant must also "[o]vercome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Therefore, under Strickland, the Court's analysis must be comprised of two components: 1) whether defense counsel's performance was deficient; and 2) if so, whether the deficient performance resulted in prejudice that "so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
In support of his claims of ineffective assistance of counsel, defendant's Grounds Two, Four, Six, and Seven allege that his attorney failed to object to the wording of the indictment (as related to his claim in Ground One), failed to seek review on appeal of the decision of the trial judge (to the extent the Court can discern the substance of this argument), failed to raise on appeal insufficiency of evidence upon the close of the State's evidence, failed to advise defendant of possible grounds for appeal, and failed to include all significant trial applications and rulings on appeal.
Defendant does not elaborate further in support of his motion for postconviction relief as to any specific behavior or neglect on the part of counsel in order to support his general conclusory allegations of ineffectiveness. He does not state why or how the failure of counsel to object to the indictment was unreasonable or prejudicial to him, how specifically the State's evidence was insufficient, or why counsel should have made such an argument at the close of the State's case, or how counsel's advice to him would have altered the outcome of the appeal, or what rulings counsel failed to challenge on appeal. In short, defendant has made conclusory assertions of ineffectiveness of counsel that are superficial, unsupported by specific facts, and in some instances neither cognizable nor comprehensible.
With respect to prejudice, the Court can discern no concrete allegations of actual prejudice nor has defendant even remotely substantiated any allegations of prejudice. These failures are fatal to Defendant's Rule 61 motion and should result in summary dismissal of each of his ineffective assistance of counsel claims. On appeal, the Supreme Court found no error at the trial. Defendant has not argued any specific or identifiable prejudice based upon his counsel's actions. Furthermore, a review of the record shows counsel's representation of Defendant was more than adequate under Strickland.
For all of the foregoing reasons, Defendant's Rule 61 Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.