Opinion
ID No. 9612001794.
Submitted: January 28, 2002
Decided: April 26, 2002
On Defendant's Pro Se Motion for Postconviction Relief. Denied.
Andrew J. Vella, Deputy Attorney General, Carvel State Office Building, 820 N. French Street, 7th Floor, Wilmington, Delaware, Attorney for the State.
Junior Marks, pro se Defendant, Department of Correction, Smyrna, Delaware.
ORDER
On this 26th day of April, 2002, upon consideration of Defendant's pro se motion for postconviction relief it appears to the Court that:
1. Junior Marks, ("Defendant"), has filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61, the State has filed a Response, and at the request of the Court, Defendant's trial attorney, Joseph M. Bernstein ("Counsel") filed an affidavit refuting charges of ineffective assistance of counsel. For the reasons set forth below, Defendant's motion for postconviction relief is DENIED.
Rule 61 "governs the procedure on an application by a person in custody or subject to future custody under a sentence of this court seeking to set aside a judgment of conviction or a sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction . . .
2. On December 6, 1996, an undercover police officer observed Defendant and an individual named "Smith," handling, what appeared to be, crack cocaine. Months later, Smith approached that same undercover officer. When the undercover officer indicated that he wished to purchase some cocaine, Smith walked back to Defendant, who took out a white substance and broke some pieces off into Smith's hand. The officer then radioed for assistance, and both Smith and Defendant were arrested. Upon searching Defendant and Smith, and their immediate surrounding area, the police retrieved $130 and a bag of cocaine. Because white residue was observed on Smith's hands later at the police station, the police performed a field test, which revealed the residue was cocaine. Defendant's hands were then examined, but no trace of residue was ever found.
A grand jury indicted Defendant and Smith for various drug related offenses. Defendant was charged with Trafficking in Cocaine ( 16 Del. C. § 4753); Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance ( 16 Del. C. § 4751), Distribution, Delivery, or Possession of Controlled Substance 300' of Park ( 16 Del. C. § 4768); and Conspiracy Second Degree (11 Del. C. § 0512). After a jury convicted Defendant, the Court sentenced him to fifteen years' incarceration. Thereafter he appealed to the Supreme Court of Delaware claiming the trial court erred in refusing to admit evidence of a controlled-substance field test, which was conducted by the arresting officer. The Supreme Court disagreed with Defendant and affirmed his conviction. Defendant raised no other claims in his direct appeal.
Marks v. State, No. 400 Del. Supr. Veasey, J. (August 13, 1998) (ORDER).
3. Before addressing the merits of any claim raised in a motion seeking postconviction relief the Court must first apply the rules governing the procedural requirements of Super. Ct. Crim. R. 61 Rule 61(i)(3) provides that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of Superior Court, is thereafter barred, unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights." To show "cause" the movant must show "some external impediment" which prevented him from raising the claim. To show prejudice from a violation, the movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different. At the outset, the Court notes that Defendant did not raise his current postconviction claims in his prior direct appeal to the Supreme Court, and as such, his claims are procedurally barred pursuant to Super. Ct. Crim. R 61(i)(3) unless the Defendant meets the "cause" and "prejudice" standards above. It is this review that the Court now undertakes.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.s. 255, 265 (1989)).
Super. Ct. Cr. R. 61(I)(3).
Younger v. State, 580 A.2d 552, 556 (Del. 1990) (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990).
4. Defendant first claims that he was not arraigned, pursuant to Super. Ct. Crim. R. 10, and was therefore denied his fundamental right to be notified of the charges brought against him by the State. Super. Ct. Crim. 10 provides three ways in which a defendant may be properly arraigned. Although the record reflects that Defendant was given a preliminary hearing, was represented by counsel in a reduction of bail hearing, after which he was "fast Tracked," and was appointed counsel for trial, the docket does not indicate when or whether the Defendant was explicitly arraigned.
A defendant may be arraigned in open court, by closed circuit television, or by written pleading. Super. Ct. Crim. R. 10(a), (b), and (c).
However, failure to arraign a defendant is not necessarily fatal to his conviction, as a waiver of arraignment may be implied from his participation in his trial, or other attendant circumstances. Moreover, an implied waiver may arise where the trial proceeded as if an arraignment had been held, and where there is no objection made by a defendant for want of an arraignment, until after his conviction. Here, Defendant participated in his trial and in his direct appeal with the aid of Counsel. The Defendant never made an objection before his trial, nor during his trial, that he was not arraigned. As noted previously, the Defendant was given a preliminary hearing on December 11, 1996, Counsel was appointed soon thereafter, and Defendant was aided by Counsel through his trial, his pretrial motions and a violation of probation hearing. The primary purpose of an arraignment is to notify the Defendant of the charges against him so he can adequately prepare to address them. The Court finds it impossible to believe that Defendant was not aware of the charges pending against him throughout those procedures, and certainly once Counsel was appointed. Similar to Ray v. State, Defendant impliedly waived his right to an arraignment when he participated in his trial as if an arraignment had been properly held, and he did not object. The Defendant 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. The Court indicates "possible" since it is equally likely that the Defendant was arraigned at a case review but such actions were not docketed by the clerk. In any event, this claim is denied.
Ray v. State, 262 A.2d 643 (Del. 1970).
Ray 262 A.2d at 645.
See Ray v. State at 645.
Younger v. State, 580 A.2d 552, 556 (Del. 1990) (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
6. Defendant next claims that his right to consular notification, pursuant to the Vienna Convention on Consular Relations ("VCCR") was violated because the police obtained incriminating statements from him, without advising him that he had right to contact a Jamaican representative at the Consulate. In Barrow v. State, where a similar VCCR violation case arose, the Court reviewed a defendant's claim under the plain error standard, and found that the defendant offered no evidence to support a finding that he was a foreign national to whom Article 36 of the VCCR applied, but that even if Article 36 was applicable, the defendant failed to identify which specific due process rights were denied. The Barrows court noted two other cases that recently heard VCCR violation claims, and then held that the defendant's contentions under VCCR suffer from a lack of record support, "a deficiency attributable to his failure to raise the issue at the trial level." The Court finds Defendant's claims are identical to the claims of the Barrows defendant, in that they were not raised before, during, or directly after Defendant's trial, and because Defendant has failed to demonstrate how the consul notification would have assisted in his defense. His counsel's affidavit explains that a VCCR claim was not raised or pursued because Defendant had not made any statements to the police following his arrest. After Defendant's arrest, the police issued him Miranda warnings and at that time he informed the police that he did not wish to speak with them. Moreover, the State did not attempt to introduce any statements by Defendant at trial. As such, any alleged violation of the VCCR had no effect on the due process rights of the Defendant and this claim is also denied.
749 A.2d 1230 (Del. 2000).
Floray v. State, 730 A.2d 1132, 1137 (Del. 1998); Supr. Ct. R. 8.
Article 36 of the VCCR addresses the treatment of foreign nationals who have been arrested in specific nations. Authorities bound by the VCCR are to inform the defendant's home country consul that the defendant has been arrested, if the defendant makes a request. The authorities are also required to notify a foreign national defendant of his or her rights under the VCCR. Art. 36(1)(b).
Barrow v. State, 749 A.2d at 1242.
Breard v. Greene, 523 U.S. 371 (1988) (suggesting that it could be harmless error if authorities failed to follow Article 36, depending upon the circumstances stating that "[i]t is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial."); United States v. Ademaj, 170 F.3d 58 (1st Cit 1999) (holding that failure to notify consulate officials was, in fact, harmless [error] where the defendant did not indicate how the consulate could have assisted in his defense.
Barrows 749 A.2d at 1242.
See United States v. Ademaj, 170 F.3d 58 (1st Cir. 1999).
7. Thirdly, Defendant claims that his indictment was invalid and fraudulent because the grand jury proceedings were not recorded. Grand jury proceedings may only be disclosed when the interests of justice require it, and are rarely ever recorded. Sine there is no requirement that the proceedings be recorded, the failure to do so does not provide a basis for relief in a Rule 61 context. Therefore, his motion as to this claim is denied.
In re Steigler, 250 A.2d 379, 382 (Del. 1969).
8. Defendant's fourth claim is entitled "structural errors" but does not alleged or introduce any new facts, or additional theories as to why the Court should grant the motion for postconviction relief Defendant merely echoes his earlier claims under the VCCR and duplicates certain claims concerning his indictment. The Court find these various "structural errors" claims to be without merit and invariably there has not been a showing of cause to lift the procedural bar of Rule 61 (i)(3).
9. Defendant's fifth claim asserts that the Court lacked subject matter jurisdiction over him, because there was not an issue pending before the Court for the State to try Defendant. To support this claim, Defendant contends that his indictment was not returned before a judge in open court. It is clear to the Court that a grand jury returned an indictment against Defendant for charges that were all felonies, as it is even more certain that the indictment was returned before a judge in open court on December 23, 1996. The fact that such proceeding may not have been recorded does not mean that it did not occur. Superior Court had jurisdiction of all the felony charges listed in Defendant's indictment Defendant's flawed reasoning draws the erroneous conclusion that because he has no record that his grand jury proceedings were recorded, the indictment was not returned in open court before a judge. His reasoning simply is not sound, and is wholly without merit. Defendant again, as in his other claims, has not proffered any evidence or facts to show cause to lift Rule 61(i)(3)'s bar, and as such, this claim fails.
This statement is not meant to imply that the proceeding was not recorded. It may have been, but the Court found it unnecessary to review the record to make such a determination in deciding this issue.
10. Defendant's final claim asserts Counsel provided ineffective assistance during Defendant's trial. An ineffective assistance of counsel claim "requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." A movant who claims ineffective assistance of counsel, must satisfy the Strickland v. Washington two-part test. The movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." The movant must prove both prongs of this test by a preponderance of the evidence.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Id.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
State v. Wright, Del. Super., 653 A.2d 288, 294 (1994).
Defendant has alleged that Counsel failed to properly and adequately investigate Defendant's VCCR claims and failed to challenge the grand jury's indictment. These contentions appear to be duplicated VCCR violation and indictment challenges reproduced by Defendant for an ineffective assistance of counsel claim. The Court has already held that Defendant does not have a valid and meritorious VCCR violation claim, so it follows that it was not ineffective assistance of counsel for Counsel to not have investigated and raised the issue on Defendant's behalf. The same rational underlies Defendant's claims that Counsel was ineffective for not challenging his indictment. There simply was nothing for Counsel to challenge. Because Defendant has not set forth any evidence or factual support to show that Counsel's representation was deficient or that Counsel made serious errors, the Defendant has failed to meet the first prong of Strickland and therefore, cannot satisfy the two-part test. His ineffective assistance of counsel claims are devoid of merit and his motion as to these claims is thus denied.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
12. The Court finds that Defendant's various claims and contentions enumerated throughout his motion have not shown cause or prejudice to merit a finding that his conviction should be overturned. As such, all of his claims raised in this motion are procedurally barred pursuant to Super. Ct. Crim. R. 61(i)(3). For the reasons set forth above, Defendant's motion is denied.
IT IS SO ORDERED.