Opinion
ID. No. 9709000684
Submitted: September 20, 2002
Decided: October 4, 2002
IK99-01-0013-R1 through IK99-01-0018-R1
Upon Defendant's Motion For Postconviction Relief
Pursuant to Superior Court Criminal Rule 61 FREUD, Commissioner August 29, 2002
John R. Garey, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Anthony A. Figliola, Jr., Esq. Wilming ton, Delaware, for the defendant.
ORDER
On this 4th day of October, 2002, upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) On April 28, 1999 the Defendant, George A. Kiser ("Kiser") was found guilty by a jury of four counts of Delivery of Cocaine, 16 Del. C. § 4751; and two counts of Conspiracy in the Second Degree, 11 Del. C. § 512. On October 29, 1999 the Court sentenced Kiser to 60 years in prison, which were minimum mandatory due to Kiser's prior drug convictions, followed by probation.
A timely notice of appeal was filed with the Delaware Supreme Court. On appeal, the Supreme Court affirmed Kiser's conviction and sentence. Next, Kiser filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Kiser alleges one ground for relief, ineffective assistance of counsel.
Kiser v. State, Del. Supr., No. 542, 1999, Berger, J. (Oct. 26, 2000) (ORDER).
(2) The Court referred this motion to Superior Court Commissioner Andrea Maybee Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.
(3) No objections to the Report have been filed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated August 29, 2002,
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Recommendation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DISMISSED.
COMMISSIONER'S REPORT AND RECOMMENDATIONS
On April 28, 1999 the Defendant, George A. Kiser ("Kiser") was found guilty by a jury of four counts of Delivery of Cocaine, 16 Del. C. § 4751; and two counts of Conspiracy in the Second Degree, 11 Del. C. § 512. On October 29, 1999 the Court sentenced Kiser to 60 years in prison, which were minimum mandatory due to Kiser's prior drug convictions, followed by probation.
A timely notice of appeal was filed. On appeal, the Supreme Court affirmed Kiser's conviction and sentence. Next, Kiser filed the pending postconviction motion in which he raises one ground for relief, ineffective assistance of counsel.
Kiser v. State, Del. Supr., No. 542, 1999, Berger, J. (Oct. 26, 2000) (ORDER).
I. FACTS
The following is a summary of the facts as noted by the Supreme Court in its opinion:
Kiser was arrested in October 1997, after selling crack cocaine to undercover police officers on four occasions that summer. In April 1998, after having been represented by a public defender, Kiser filed the first of several motions to proceed pro se. Some of his motions were granted; some were withdrawn. At his final case review in April 1999, the court granted Kiser's latest motion to proceed pro se, but ordered the public defender to remain as standby counsel.
Five days later, on the morning of trial, Kiser requested a continuance. He wanted time to review police reports and discovery, which he claimed not to have received. Both the prosecutor and Kiser's standby counsel disputed Kiser's claim that he had not received the documents. Nonetheless, the trial court recessed for an extended lunch break (over two hours) to give Kiser time to read the twenty pages of police reports.
After the break, Kiser told the court he was ready to proceed. The prosecutor gave his opening statement and the court then asked Kiser if he wished to make an opening statement. Kiser responded, "Well, Your Honor, I would like to step down and have [the public defender] represent me." The public defender gave an opening statement and continued to represent Kiser throughout the trial.
Kiser argues that the trial court erred when it granted him a long lunch recess instead of the continuance he requested. He claims that the court's decision prevented him from exercising his constitutional right to represent himself. Since the decision caused him such significant prejudice, Kiser says that it constitutes an abuse of discretion.
The decision whether to grant a continuance will not be disturbed on appeal unless it was "clearly unreasonable or capricious." There is nothing in this record to suggest that Kiser had any difficulty reading twenty pages of police reports during the two hour lunch break. To the contrary, since Kiser told the trial court that he was ready to proceed after lunch, one could infer that the time he was given was sufficient. Likewise, there is nothing to suggest that the denial of a continuance forced Kiser to abandon his plan to represent himself.
Bailey v. State, Del. Supr., 521 A.2d 1069, 1088 (1987).
Kiser simply told the court that he wanted the public defender to represent him. Kiser had vacillated several times during the months before trial and made his final decision to accept representation at the last moment. He did so unequivocally and without making any reference to concerns about the alleged lack of discovery or any need for more time to prepare for trial. In short, there is no record support for Kiser's claim, raised for the first time on appeal, that his decision on representation was involuntary. Accordingly, we find no abuse of discretion.
II. KISER'S CONTENTIONS
In his motion for postconviction relief, Kiser asserts that his trial counsel was ineffective. Kiser claims his attorney was not prepared for trial. Specifically, Kiser alleges counsel did not pursue a defense of misidentification.
III. PROCEDURAL CONSIDERATIONS
Under Delaware Law the Court must first determine whether Kiser has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. Kiser's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Kiser's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552 (1990) (citing Harris v. Reed, 489 U.S. 25 5 (1989)). See Dawson v. State, Del. Supr ., 673 A.2d 1186, 1190 (1996).
Super.Ct.Crim.R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for the procedural fault and (2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction."
Super.Ct.Crim.R. 61(i)(3).
Super.Ct.Crim.R. 61(i)(5).
Kiser's claim is premised on allegations of ineffective assistance of counsel. Kiser has therefore seemingly alleged sufficient cause for not having asserted this ground for relief at trial and on direct appeal. These types of claims are not normally 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. For this reason, many defendants, including Kiser, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the 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. 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 and adopted by the Delaware Supreme Court in Albury v. State.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
466 U.S. 668 (1984) ("Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. 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 at 687. See Dawson, 673 A.2d at 1190.
Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170 1172 (1992).
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, 11 85 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (Marc h 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[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." 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 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Kiser attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Kiser's Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims. The Supreme Court found no error in the trial. Turning briefly to Kiser's specific allegations; the record indicates that Kiser's trial attorney did in fact investigate the possibility of a misidentification of Kiser as the perpetrator. A defense of misidentification was in fact presented by counsel during the trial. Kiser cannot show either cause for relief or prejudice and his motion is therefore procedurally barred.
See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 19 92) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
IV. CONCLUSION
After reviewing the record in this case, it is clear that Kiser has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that Kiser's postconviction motion be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice.