Opinion
Cr. ID. No. 0511010139.
Submitted: July 19, 2010.
Decided: October 4, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Paul R. Wallace, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Joseph Smith, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
MEMORANDUM OPINION
This 4th day of October, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. In December 2005, Defendant Joseph Smith was charged in a twelve-count indictment with one count of Murder in the First Degree, three counts of Attempted Murder in the First Degree, five counts of Possession of a Firearm During the Commission of a Felony, two counts of Possession of a Deadly Weapon by a Person Prohibited and one count of Aggravated Menacing. The charges arose from a November 10, 2005 incident in which Smith shot four acquaintances, killing one and paralyzing another.
2. The facts giving rise to these offenses, as set forth by the Superior Court in its Memorandum Opinion of December 6, 2007, reveals that on November 10, 2005, Defendant and the victims were celebrating the birthday of one of the victims, Joseph Pasturski, in Newark, Delaware. The defendant, Mr. Pasturski, Kinney Leonard, Brittany Walker and Jennifer Jamieson were in attendance. The men were drinking heavily that night, including the defendant. An argument began between Defendant and Mr. Leonard. Mr. Pasturski attempted to break up the argument.
Superior Court Docket No. 33.
3. Defendant stated he attempted to leave the residence before it escalated further. He gathered his belongings, including a handgun. Defendant stated that, as he tried to leave, Mr. Leonard turned him around in the doorway. Then, Defendant began shooting. He shot Mr. Pasturski in the chest, killing him.
Id.
4. Defendant next fired upon Mr. Leonard and hit him in the lower abdomen. He then turned his attention to the women. He shot Ms. Jamieson in the lower abdomen when she hid behind a couch in the living room. Ms. Walker was shot in the chest while in the kitchen. Defendant left but returned shortly thereafter and took a cellular phone from one of the victims as she attempted to call 911. Mr. Pasturski was found dead by police. Mr. Leonard was in serious condition. Ms. Jamieson was found semi-conscious. Ms. Walker was the only victim coherent at the time police arrived.
Id.
5. On October 16, 2006, Smith pled guilty to the murder and attempted murder charges. In exchange for the guilty plea, the State entered a nolle prosequi on the remaining charges, agreed to forego a death penalty hearing and agreed to submit the matter to the Superior Court as to whether a verdict of "guilty" or "guilty, but mentally ill" should be entered.
6. Between April-July 2007, Defendant filed several pro se motions seeking to withdraw his guilty plea. Defendant alleged in those motions, among other things, that his counsel was ineffective and inadequate, that his plea was not entered voluntarily and knowingly, that he was under the influence of medication which made him unaware of the consequences of his plea, that he was legally innocent, that the consequences of accepting the plea was not explained to him in detail, and that counsel intimidated him and coerced him into taking the plea.
Superior Court Docket Nos. 25, 27 and 28.
7. On August 22, 2007, the Superior Court denied Defendant's motion to withdraw his guilty plea. After reviewing the record and the plea colloquy transcript, the court concluded that Defendant's guilty plea was entered into knowingly, voluntarily and intelligently.
August 22, 2007 Transcript, at pg. 25.
8. On the issue of whether the verdict of "guilty" or "guilty but mentally ill" should be entered, both the State and Smith submitted mental health evaluations and on August 22, 2007 the Superior Court held oral argument after which the Superior Court issued a thirteen-page memorandum opinion determining that a verdict of guilt was appropriate.
Superior Court Docket No. 33, Superior Court Memorandum Opinion of December 6, 2007.
9. Thereafter, the matter proceeded to sentencing at which Smith received four consecutive life sentences.
Sentencing Transcript of December 7, 2007.
10. Defendant Smith appealed to the Delaware Supreme Court. On appeal, Defendant again raised that there were defects in his plea. He also raised that he had a "basis to assert legal innocence". On October 30, 2008, the Delaware Supreme Court affirmed Smith's convictions and sentences. The Delaware Supreme Court held that Smith's contentions of defects in his plea were contradicted by the record of the plea proceedings. The Delaware Supreme Court acknowledged that it is well-settled that a defendant is bound by his answers during a guilty plea colloquy in the absence of clear and convincing evidence to the contrary. The plea agreement, guilty plea form and transcript of Smith's guilty plea colloquy amply demonstrated that his plea was entered knowingly, voluntarily and intelligently.
Smith v. State, 2008 WL 4750249 (Del. 2008).
Id.
11. The Delaware Supreme Court further reasoned that since Smith admitted his guilt to the Superior Court during the guilty plea colloquy, his conclusory assertion of innocence was not sufficient to require reversal of the concomitant conviction and sentence. This was particularly so, because Smith admitted his guilt in the plea colloquy.
Id.
12. On November 16, 2009, Defendant filed this motion for postconviction relief. The allegations advanced by Smith as "grounds" numbered 1-11 are claims of ineffective assistance of counsel. Smith's claims numbered 12-16 are difficult to decipher. In those claims, Defendant alleges various "abuse of discretion" contentions, a violation of Superior Court rules, and a conflict of interest contention.
13. After filing his motion for postconviction relief, Smith requested that the transcripts of two court proceedings be obtained. Smith further requested that following the receipt of those transcripts, he be permitted to supplement his previously submitted memorandum of law. The court granted Smith's request in this regard. After the transcripts were obtained and produced to Smith, he was provided with over 30 days to submit his supplemental memorandum. Smith failed to timely supplement his memorandum of law, and, for that matter, Smith failed to supplement his memorandum at any time.
Superior Court Docket No. 54.
Superior Court Docket No. 58.
14. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred and the Court should not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
15. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If a final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61 (i)(4).
16. Rule 61(i)(4) precludes this Court's consideration of Defendant's contentions, now couched as ineffective assistance of counsel claims, that his guilty plea was somehow defective because these issues have already been previously adjudicated. Defendant raised the defective nature of his plea in his Motion to Withdraw Guilty Plea, which was addressed, and denied by the Superior Court on August 22, 2007. The Superior Court already determined that Defendant's plea was a knowing, intelligent and voluntary choice. Likewise, Defendant re-raised the issues regarding the alleged defects in his guilty plea in his direct appeal to the Delaware Supreme Court. On October 30, 2008, the Delaware Supreme Court already ruled that the plea agreement, guilty plea form and transcript of Smith's guilty plea colloquy amply demonstrate that his plea was entered knowingly, voluntarily and intelligently.
17. To the extent that Defendant has restated or refined his claims, and now couched them as ineffective assistance of counsel contentions, the Superior Court is not required to re-examine any claim that has received "substantive resolution" at an earlier time simply because the claim is now refined or restated.
Johnson v. State, 1992 WL 183069, *1 (Del.Supr.).
18. Moreover, with the exception of Defendant's ineffective assistance of counsel claims, Defendant's claims are barred by Rules 61(i)(2) and (3), for failing to raise the claims in a prior postconviction proceeding. Defendant was required to present the claims that he raises in the subject motion, with the exception of his ineffective assistance of counsel claims, at the time of his plea, the time of sentencing or on direct appeal. Having failed to do so, those claims are now barred pursuant to Rule 61(i)(2) and Rule 61(i)(3).
19. Even if Defendant's claims are not procedurally barred, they are without merit.
20. Smith's specific claims stated as "grounds" numbered 1-11 are allegations of ineffective assistance of counsel.
21. To prevail on an ineffective assistance of counsel claim, the defendant must show that his counsel's efforts "fell below an objective standard of reasonableness" and that, but for his counsel's alleged errors, there was a reasonable probability that Defendant would not have pled guilty, would have insisted on going to trial and the outcome would have been different. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
22. Here, Defendant's ineffective assistance claims are undermined by the record and fail to satisfy Strickland. Defendant fails to state a legitimate ground for relief against his counsel.
23. Before addressing each of Smith's grounds in turn, it is important to note that both of Smith's attorneys' emphasize that this case was extremely difficult to defend. Defendant was accused of shooting four of his friends. The three surviving witnesses that were shot by Defendant were able to testify and identify the Defendant as the shooter. The gun involved in the crime was found with the Defendant. In addition, Defendant gave an emotional confession in which he admitted shooting the individuals. Both defense counsel represent that they diligently and thoroughly investigated every reasonable and conceivable defense. They both advise that they candidly evaluated the possibility of success of trial, that they extensively discussed the plea offer, and that Smith had a full understanding of the plea. In this case, it appears that Smith's attorneys' assessment of the case and advise relating to the plea were the product of sound strategy and not at all unreasonable under the circumstances.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion.
24. Turning now to Defendant's specific grounds, in Ground One, Defendant contends that his counsel was ineffective because "Counsel refuse[d] to show discovery material and give transcripts to the Defendant." Defendant's dissatisfaction with his Moreover, other than to broadly contend that counsel did not provide "discovery material" and "transcripts", he does not specify precisely what was not provided that should have been provided, nor does he explain how the production of such material/transcripts resulted in any actual prejudice to him. Finally, both of his attorneys deny Smith's allegation. Both of his attorneys have filed Affidavits in response to his motion and have represented that Smith received all available discovery and copies of transcripts when they became available. Both of his attorneys have represented that they met with Smith on numerous occasions and went over police reports, witness statements, his confessions and other documents involved in the matter. Defendant has failed to make concrete allegations of actual prejudice and substantiate them. The conduct of the defense counsel does not appear to be deficient in any regard.
Truth in Sentencing Guilty Plea Form dated October 16, 2006; Plea Colloquy of October 16, 2006, pg. 6-7.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 10; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion at ¶ 1.
25. In Ground Two, Defendant contends that his counsel was ineffective in that he was coerced into taking the plea. This claim is barred pursuant to Rule 61(i)(4) because it has already been previously adjudicated. Both the Superior Court and the Supreme Court, after reviewing the record, has concluded that Smith's guilty plea was entered into voluntarily, intelligently, and knowingly. Indeed, Defendant during the plea colloquy and in his signed Truth-In Sentencing Guilty Plea Form expressly represented that nobody, not his attorneys, the State, nor anyone else, threatened or forced him to enter his guilty plea. He further represented that his plea was entered into freely, knowingly and voluntarily. Defendant is bound by these statements. Moreover, both of Smith's attorneys deny this allegation. The conduct of defense counsel does not appear to be deficient in any regard.
Truth-In Sentencing Guilty Plea Form dated October 16, 2006; Plea Colloquy of October 16, 2006, pg. 6-7.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 11; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion at ¶ 2.
26. In Ground Three, Defendant contends that his counsel was ineffective for not having an "electroencephalogram test" done. Under well-settled Delaware law, a properly entered plea of guilty constitutes a waiver of all errors or defects occurring before the plea even those of constitutional proportions, except lack of subject matter jurisdiction. Defendant waived his right to raise this claim when he entered his guilty plea. Moreover, Defendant does not specify why this test was needed and how the fact that this test was not performed resulted in any actual prejudice to him. Both counsel represented that this test was not performed because they saw no reason to have the testing done. Both counsel represent that having an "electroencephalogram test" performed was unwarranted. The conduct of defense counsel does not appear to be deficient in this regard.
Fullman v. State, 1989 WL 27739, at *1 (Del. 1989); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Mojica v. State, 2009 WL 2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 12; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion at ¶ 3.
27. In Ground Four, Defendant contends that his counsel was ineffective for failing to investigate. Defendant waived this claim, among others, at the time he knowingly, voluntarily and intelligently entered his guilty plea. Defendant waived his right to challenge any alleged errors or defects occurring prior to the entry of his plea. Even if the claim was not waived, it is without merit. Defendant failed to offer any factual support of this claim. He does not specify what should have been investigated that was not. Defendant also does not specify how doing something that counsel did not do resulted in any actual prejudice to him. Defendant does not make any concrete factual allegations, let alone concrete allegations of actual prejudice. This claim is too conclusory and lacking in detail to establish a claim of ineffectivenss. Moreover, both of Defendant's counsel represented that they diligently and thoroughly investigated every reasonable and conceivable defense on behalf of Defendant. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Mojica v. State, 2009 WL 2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
Younger v. State, 580 A.2d 552, 555 (Del. 1990); State v. Brown, 2004 WL 74506, *2 (Del.Super. 2004) (conclusory and unsubstantied allegations of unprofessional conduct are insufficient to support a motion for postconviction relief).
Affidavit of Kester I.H.Crosse in response to Rule 61 motion; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion.
State v. Brown, 2004 WL 74506, *2 (Del.Super. 2004).
28. In Ground Five, Defendant contends that his counsel was ineffective in that "Head-Counsel should had been at all hearings." Again, Defendant fails to explain at which hearings Head Counsel was not present, and more importantly, how this resulted in actual prejudice to the Defendant. Defendant has failed to make concrete allegations of actual prejudice and substantiate them. Apparently, both counsel appeared with the Defendant at the Proof Positive Hearing, Plea Hearing and Guilty but Mentally Ill Hearing. Attorney Crosse believes that there may have been one hearing (possibly the preliminary hearing) in which lead counsel was not present, but Defendant was still properly represented by counsel at the hearing. Consequently, since Defendant was properly represented at all hearings, Defendant has failed to make concrete allegations of actual prejudice and substantiate them.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 13.
29. In Ground Six, Defendant contends that his counsel was ineffective for refusing to file motions on his behalf. Defendant waived this claim, among others, at the time he knowingly, voluntarily and intelligently entered his guilty plea. Even if the claim is not waived, Defendant has failed to offer any factual support for this claim. Defendant does not allege what motion(s) should have been filed but was not. Defendant must come forward and assert specifically what should have been filed that was not and how specifically that prejudiced the defendant. Defense counsel represents that any and all necessary motions were filed. Defense counsel denies that they refused to file any justified motion on Defendant's behalf. Defense counsel points out that Defendant voluntarily confessed to the murder and the shootings. There was no violation of his constitutional rights in the questioning by the police officers or in the search of the Defendant's relatives' homes to find the weapons. This claim is too conclusory and lacking in detail to establish a claim of ineffectiveness.
Affidavit of Kester I.H. Crosse in response to Rule 61 motion at ¶ 14.
Id.
30. In Ground Seven, Defendant contends that his counsel was ineffective for failing to communicate. Defendant waived this claim, among others, at the time he knowingly, voluntarily and intelligently entered his guilty plea. Even if the claim is not waived, again, Defendant has failed to offer any factual support for this claim. He does not specify what specifically counsel failed to communicate. Defendant's contention is devoid of any specificity. Defendant does not make any concrete factual allegations, let alone concrete allegations of actual prejudice. In fact, a review of the entire record of the case establishes that Defendant engaged in a thorough examination of his case with his counsel, completely understood the plea paperwork and had an adequate plea colloquy with the court during which he admitted that he was satisfied with his counsels' representation and that he felt they had adequately reviewed all aspects of the plea agreement with him. Defendant is bound by these statements.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 10, 11 15-18; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion at ¶ 1-3; Truth-In Sentencing Guilty Plea Form dated October 16, 2006; Plea Colloquy of October 16, 2006, pg. 5-7.
31. In Ground Eight, Defendant contends that his counsel was ineffective for not spending adequate time preparing and for not sharing information. Defendant waived this claim, among others, at the time he knowingly, voluntarily and intelligently entered his guilty plea. Even if the claim is not waived, Defendant again offers no support for this conclusory statement. Defendant has pointed to nothing in the record to demonstrate a lack of diligence on behalf of his counsel. As previously addressed, Smith's counsel vehemently deny that they did not adequately prepare or share information with Defendant. Indeed, they both represent that were diligent in their representation of Defendant, that they visited Defendant on numerous occasions, that they met with Defendant's family members extensively, that they shared all necessary factual and legal information with Defendant, and they thoroughly investigated all aspects of the case. Moreover, this contention is directly at odds with the record which reflects that Defendant was satisfied with his counsel in all respects.
Affidavit of Kester I.H.Crosse in response to Rule 61 motion at ¶ 10, 11 15-18; Affidavit of Ralph D. Wilkinson, IV in response to Rule 61 motion at ¶ 1-4.
32. In Ground Nine, Defendant contends that he lacked a full understanding of the plea. This claim is procedurally barred since it has already been adjudicated. The Superior Court and thereafter the Delaware Supreme Court has already determined that Defendant's plea was entered into intelligently, knowingly and voluntarily. Moreover, Defendant's contention is belied by his representations in the Truth-In Sentencing Plea Form and in his plea colloquy that he had enough time to review his plea and plea form with his counsel, that he discussed each question on the truth in sentencing guilty plea form with his counsel, that he did not have any further questions about the form for his counsel, that he was fully advised of his rights and of his guilty plea, and that he was satisfied with his attorneys' representation. Defendant is bound by these statements. Defendant has not established that defense counsel's conduct was deficient in this regard nor that he suffered any prejudice as a result thereof.
Truth-In Sentencing Guilty Plea Form dated October 16, 2006; Plea Colloquy of October 16, 2006, pg. 5-7.
33. In Grounds 10 and 11, Defendant contends that his counsel was ineffective for failing to uphold the duty of loyalty and for "confidentiality of information." Defendant offers no support for these conclusory statements. Defendant does not allege how his counsel failed to uphold their duty of loyalty, or provide any explanation for his contention of "confidentiality of information". Counsel denies these claims and represent that they worked diligently on Defendant's case and kept all of the information confidential. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
Affidavit of Kester I.H. Crosse in response to Rule 61 motion at ¶ 18.
34. Defendant's remaining claims, Grounds Numbered 12-16, are difficult to decipher and were not further developed. Defendant fails to offer any factual or legal support for these claims. They are too conclusory and lacking in detail to establish a viable claim. These claims do not allege ineffective assistance of counsel contentions and, therefore, if Defendant genuinely believed these claims had any merit, he was required to have raised them in a prior postconviction proceeding. Defendant was required to present these claims at the time of his plea, the time of sentencing or on direct appeal. Having failed to do so, those claims are now procedurally barred pursuant to Rule 61(i)(2) and Rule 61(i)(3).
35. In Grounds 12 and 13, Defendant contends that the Superior Court abused its discretion for denying Defendant's motion to withdraw his guilty plea because the motion was filed pro se (Ground 12), and for not hearing the motion on its merits (Ground 13). In addition to these claims being procedurally barred, Defendant is simply incorrect. The Superior Court first stated that the motion should be considered moot because Defendant was represented by counsel and he filed the motion to withdraw pro se, but then went on to consider the motion on its merits. The Superior Court then stated that after reviewing the record including the plea colloquy transcript, it finds that Defendant's guilty plea was entered knowingly, voluntarily and intelligently. The Court stated that therefore the motion was denied as moot as well as on the merits.
August 22, 2007 Hearing Transcript, pg. 25.
36. In Ground 14, Defendant alleges "abuse of discretion" in that the "court manifestly abused its discretion when judge made comment to the defendant about discovery material." Defendant waived this claim, among others, at the time he knowingly, voluntarily and intelligently entered his guilty plea. Even if the claim is not waived, Defendant's contention is devoid of any specificity. Defendant provides no factual or legal support for this claim. Conclusory, unsupported and unsubstantiated allegations are insufficient to establish a claim under Rule 61. Moreover, this claim was required to be raised in a prior postconviction proceeding if Defendant genuinely believed it was a meritorious claim and it is now procedurally barred.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super. 2007) (court need not address Rule 61 claims that are wholly conclusory, unintelligible and incoherent.); State v. Chambers, 2008 WL 4137988, at *1 (Del.Super.).
37. In Ground 15, Defendant contends "violation of Superior Court Rules" in that "the Truth in Sentencing Form has been completed incorrect." Since it appears that Defendant is not alleging any ineffectiveness of counsel contention, this claim was required to be raised in a prior postconviction proceeding and is now procedurally barred. In addition, Defendant's contention is devoid of any specificity. Defendant provides no factual or legal support for this claim. Furthermore, during the plea colloquy, Defendant represented that he understood the rights that were stated on the plea agreement form and the truth-in sentencing guilty plea form, that he had enough time to review both forms, that he went over each question on the truth-in sentencing guilty plea form with his counsel, and that he did not have any further questions about the form. This claim is procedurally barred and without merit.
October 16, 2006 Plea Colloquy Transcript, pgs. 6-8.
38. In Ground 16, Defendant alleges "conflict of interest" in that "Defendant had filed a complaint under Civil Rights Act 1983." Again, Defendant's contention is devoid of any specificity. Defendant provides no factual or legal support for this claim. This claim is too vague, unsupported and unsubstantiated and need not be addressed. Moreover, this claim was required to be raised in a prior postconviction proceeding if Defendant genuinely believed it was a meritorious claim and it is now procedurally barred.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super. 2007).
39. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider the otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.