Opinion
Def. ID# 0105019567A/B
December 3, 2002
James Clifton McNeill
Adam D. Gelof, Esquire
Edward C. Gill, Esquire
Memorandum Opinion — Motion for Postconviction Relief
Gentlemen:
This is my decision on defendant James Clifton McNeill's motion for postconviction relief. McNeill was charged by Indictment with two counts of Possession of a Firearm During the Commission of a Felony, Attempted Burglary in the First Degree, Possession of a Firearm by a Person Prohibited, and Aggravated Menacing. McNeill pled guilty to Possession of a Deadly Weapon During the Commission of a Felony, Attempted Burglary in the Second Degree, and Possession of a Firearm By a Person Prohibited. As to the charge of Possession of a Deadly Weapon During the Commission of a Felony, McNeill was sentenced to six years at level V, suspended after serving two years at level V for one year at level IV for the residential substance abuse treatment program. Upon the successful completion of the residential substance abuse treatment program, the balance of McNeill's level IV sentence was suspended for three years at level III. McNeill is to be held at level V until space is available at the level IV residential substance abuse treatment program. As to the charge of Attempted Burglary in the Second Degree, McNeill was sentenced to four years at level V, suspended for four years at level III. As to the charge of Possession of a Firearm By a Person Prohibited, McNeill was sentenced to three years at level V, suspended after serving one year at level V for two years at level III.
Defendant James Clifton McNeill is hereinafter referred to as "McNeill."
McNeill filed his motion for postconviction relief on July 18, 2002. McNeill sets forth three grounds for relief. One, McNeill argues that his attorney "failed to suppress evidence on my behalf that would prove my innocence." I assume that McNeill meant to say that his attorney failed to produce evidence that would exonerate him. Two, McNeill argues that his attorney allowed him to plead guilty when the evidence showed that he was not guilty. Three, McNeill argues that an expert witness could have testified that the handgun that allegedly shot him does not produce the type of pellets that were taken from his hand. McNeill took no direct appeal to the Supreme Court. This is McNeill's first motion for postconviction relief and it was filed in a timely manner. Therefore, there are no procedural bars to McNeill's motion for postconviction relief.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Regarding McNeill's ineffective assistance of counsel claim, he must meet the two-prong test set forth in Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) counsel's actions were so prejudicial that there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial.
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
There is no merit to any of McNeill's grounds for relief. All of McNeill's arguments, regardless of how he has characterized them, are based upon McNeill's view of the allegations in the case and his attorney's alleged failure to produce certain evidence and to have an expert testify regarding the conclusions to be drawn from that evidence. Specifically, McNeill argues that the pellets removed from his hand could not have been shot from the victim's handgun because, according to McNeill, a handgun shoots slugs, not pellets. In this case, the victim could not identify McNeill as the intruder. Thus, it was the pellets that were removed from McNeill's hand that connected him to the crime.
I held an evidentiary hearing to address McNeill's arguments on October 4, 2002. Delaware State Police Officer Charles E. Caldwell, the investigating officer, testified that he was called out to investigate a robbery at a residence in Coverdale Crossroads. When Officer Caldwell interviewed the victim, the victim told him that he heard a noise in his kitchen. When the victim went to investigate, he was told by someone who was standing outside his home, who had stuck a shotgun through his window, to open the door. The victim, who had been robbed several times before, was armed with a 38 caliber handgun. The victim grabbed the intruder's gun and shot at him with the 38 caliber handgun. The gun seized from the intruder was a shotgun. A short time later, McNeill appeared at the Nanticoke Memorial Hospital with a gunshot wound to his hand. The emergency room doctor removed several small ball-type pellets from McNeill's hand. McNeill's explanation for the injury was that he was walking around and was shot.
Caldwell also testified that he recovered the victim's 38 caliber handgun and ammunition. I ordered the Delaware State Police to bring the handgun and ammunition to me for inspection. Later that day, Delaware State Police Officer Thomas J. Trueblood brought the handgun and ammunition to my office. The ammunition consisted of 38 caliber shells with a see-through plastic casing that covered pellets. These pellets are like the pellets removed from McNeill's hand. McNeill's argument, as I discussed before, is that the pellets removed from his hand are not the type of slugs fired from a 38 caliber handgun and, therefore, there is nothing to link him to the attempted robbery. However, there is simply no factual basis to support McNeill's theory. The ammunition used by the victim contained pellets like the pellets removed from McNeill's hand. Having concluded that the facts are wholly consistent with the State's theory of the case, and wholly inconsistent with McNeill's arguments, there is no need to go any further with the analysis of McNeill's grounds for relief.
For the reasons set forth above, McNeill's motion for postconviction relief is denied.
IT IS SO ORDERED.