Opinion
ID No. 0509015887.
Submitted: June 28, 2007.
Decided: September 18, 2007.
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF.
DENIEDORDER
Upon review of Daniel David Shaw's ("Defendant") Motion for Postconviction Relief and the record, it appears to the Court that:
1. On September 15, 2006, Defendant was declared an habitual offender and sentenced to 2 years at Level V, with credit for 14 days previously served, the first 2 years mandatory, for Trafficking in Cocaine; 10 years at Level V, the first 3 years mandatory, suspended after 3 years for 2 years at Level IV Halfway House suspended after 6 months for 18 months at Level III, for Possession With Intent to Deliver; 3 months at Level V, for Use of a Vehicle for Keeping controlled Substances; 30 days at Level V, for Possession of Drug Paraphernalia; $300.00 fine for Driving a Vehicle While Under the Influence; and $100.00 fine for Reckless Driving. Defendant also was fined $5,000, of which $4,500 was suspended for Trafficking, and $5,000, of which $4,500 was suspended for Possession With Intent to Deliver. On April 16, 2007, the Superior Court conviction was affirmed by the Delaware Supreme Court.
2. Defendant's current pro se motion for postconviction relief was filed on June 28, 2007. In his motion, Defendant asserts: (i) error regarding jury instructions; (ii) illegal search; (iii) chain of custody issues; (iv) conflicting testimony regarding where drugs were found; (v) conflict regarding weight of drugs; (vi) violation of Defendant's right to question witnesses, and Miranda rights; (vii) ineffective assistance of counsel; and (viii) denial of a suppression hearing.
3. In evaluating a postconviction relief motion, the Court must first ascertain if any procedural bars of Superior Court Criminal Rule 61(i) apply. If a procedural bar is found to exist, the Court should refrain from considering the merits of the individual claims. This Court will not address claims for postconviction relief that are conclusory and unsubstantiated. Pursuant to Rule 61(a), a motion for postconviction relief must be based on "a sufficient factual and legal basis." According to Rule 61(i)(1), a postconviction relief motion may not be filed more than a year after judgment of conviction is final or one year after a newly-discovered, retroactively-applicable right is recognized by the United States Supreme Court or the Delaware Supreme Court. Pursuant to Rule 61(b)(2): "[T]he motion shall specify all the grounds for relief which are available to movant . . . , and shall set forth in summary form the facts supporting each of the grounds thus specified." Any ground for relief not asserted in a prior postconviction relief motion is thereafter barred unless consideration of the claim is necessary in the interest of justice. Grounds for relief not asserted in the proceedings leading to the judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default; and (2) prejudice from the violation of movant's rights. Any formerly-adjudicated ground for relief, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
See Younger v. State, 580 A.2d 552, 554 (Del. 1990).
See id.
See Younger, 580 A.2d at 555 (Del. 1990); State v. Conlow, Del. Super., Cr. A. No. IN78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr. A. No. IN87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
Super. Ct. Crim. R. 61(i)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(4).
4. This is Defendant's first motion for postconviction relief. The Court has determined that no procedural bars apply. Therefore, the Court will consider the merits of Defendant's application.
5. Ground (i) for postconviction relief asserts error by the trial court regarding jury instructions. The Court correctly instructed the jury that their verdict must be unanimous. Contrary to defendant's assertion, the Court did not change the pattern instruction following the State's evidence.
6. Grounds (ii) and (iii) allege illegal search, and conflicting testimony regarding where drugs were found. There was extensive testimony at trial as to where and how the drugs were found. After Defendant was taken to Christiana Hospital, a tow truck was called to remove the vehicle. The police officer testified that when the vehicle was turned over onto the wheels, a bag fell onto the floorboard in front of the driver's seat. The bag looked suspicious and it contained a white substance. At that point, the vehicle was in the process of being impounded and no search warrant was required before towing. Further, conflicts in testimony must be resolved by the factfinder. The jury resolved these inconsistencies in the State's favor.
7. Ground (iii) concerns chain of custody. Defendant claims "cops riding around with drugs in trunk for 3 hours. Then the Cpl. came in and drugs were on table in plain view with no one around." During trial, the police officer testified that when the vehicle was turned over, the drugs fell into the driver's seat. The officer then placed the drugs in the trunk of his vehicle. The drugs stayed in his possession until he turned them over to the corporal.
8. The corporal corroborated the officer's testimony. When an envelope was handed to the corporal at trial, he testified: "It's an evidence envelope. My handwriting and the case number in this case is written on the outside, as well as the details of this case. It indicates that it is State versus Daniel Shaw, and it is the envelope in which I placed and sealed the drugs in this case." The corporal described how evidence is handled. The corporal also testified that the officer gave him what he believed to be cocaine. The corporal took control of the substance and put it in his secure personal locker. Only the corporal had the combination. The corporal personally delivered the substance to the medical examiner's office. The medical examiner's office printed a computer receipt for the evidence. On April 19, another officer went to the medical examiner's office, retrieved the evidence and returned the evidence back to the evidence locker, where it remained until the corporal obtained it for the trial. The Court finds no issue concerning chain of custody.
9. Ground (v) asserts conflict regarding weight of drugs. The corporal testified that when he first weighed the narcotics, the package was 102 grams on the scale at the Newport Police Department. When Defendant protested the weight of the package, the corporal took the package to Delaware State Police Troop 6, where he used a second scale. He found that the package, in fact, weighed less. The package weighed a little over 42 grams, including the plastic bags. The Medical Examiner concluded that the weight of the narcotics, without packaging, was 34.55 The Court finds that the weight discrepancies, as adequately explained, was in defendant's favor. Therefore, there is no basis for relief on this issue.
10. Ground (vi) asserts violation of Defendant's right to question witnesses, and violation of Defendant's Miranda rights. The corporal testified: "Myself and Sergeant Ryan asked the defendant to be interviewed by us. We read him, on an audio — we audiotaped the interview and read him his Miranda rights, asked him to sign a Miranda waiver. He indicated that he understood his rights. He agreed to speak to us, and he signed that waiver." Defendant has failed to identify any statement, which was used against him, that defendant made prior to Miranda warnings. Defendant also argues that "Because of pollice err, movant was denied to question witnesses [sic]." This argument lacks sufficient specificity for the Court to evaluate any alleged prejudice to defendant.
11. Ground (vii) asserts ineffective assistance of counsel. To prevail in his ineffective assistance of counsel claims, Defendant must allege by clear facts the requirements of the Strickland test. Defendant must show that counsel's course of conduct "fell below an objective standard of reasonableness" and that such actions were prejudicial. It is settled Delaware law that allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel. In setting forth his claim, Defendant is required to make and substantiate concrete allegations of both unreasonable attorney conduct and actual prejudice.
Strickland v. Washington, 466 U.S. 668, 694 (1984).
State v. Brittingham, Del. Super., Cr. A. No. IN91-01-1009-R1, Barron, J. (Dec. 29, 1994)(Order).
Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
12. Defendant's ineffective assistance of counsel allegation is without merit because it fails to state any concrete legal or factual bases to show unreasonable attorney conduct and actual prejudice. Defendant argues that counsel was ineffective for failing to file motions that Defendant had asked counsel to file, and for not visiting Defendant. A review of the transcript of the trial shows that counsel was well prepared and knowledgeable. In determining whether the waiver of the right to testify was knowing, intelligent, and voluntary, the Court addressed Defendant directly and asked: "Are you satisfied with Mr. Goff's representation of you?"
Defendant answered: "Yes, I am." Because Defendant does not present the Court with any evidence that his counsel's conduct fell below that of reasonable professional standards, or that Defendant was prejudiced as a result of his attorney's conduct, the claim of ineffective assistance of counsel must be denied as conclusory.
13. Ground (viii) asserts failure to have a suppression hearing. A suppression hearing was not warranted. At the conclusion of the State's case, Defense counsel made a record that he was not going to move for judgment of acquittal because there was sufficient evidence to place before the jury the question of possession. The drugs were found in the car, which the officer has testified was owned by Defendant, in close proximity and shortly after Defendant left the car.
14. Based upon the foregoing, Defendant's Motion for Postconviction Relief is hereby DENIED.
IT IS SO ORDERED.
ORIGINAL: PROTHONOTARY'S OFFICE — CRIMINAL DIV.