Opinion
IK97-10-0448-R1, IK97-10-0451-R1 ID No. 9704012286
January 28, 2002
John R. Garey, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
William G. Summers, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
On January 25, 1999 Defendant William G. Summers ("Summers") was found guilty by a jury of one count of Robbery in the First Degree, 11 Del. C. § 832; one count of Assault in the Third Degree, 11 Del. C. § 611(1); and one count of Misdemeanor Theft. On April 19, 1999 the State filed a motion to declare Summers an habitual offender pursuant to 11 Del. C. § 4214 (b). The motion was heard by the Court on October 29, 1999. Following the hearing the Court declared Summers an habitual offender and sentenced him, pursuant to the statute, to life imprisonment. A timely notice of appeal was filed with the State Supreme Court. In his appeal, Summers claimed that the Superior Court erred in sentencing him under the habitual offender statute, that the statute was disproportionate and that the sentence for the theft conviction was incorrect. The Supreme Court affirmed Summers' conviction and sentence as a habitual offender. The Court however, held that the misdemeanor theft charge was inclusive of the robbery charge. The Court then ruled that the conviction and sentence for the theft charge be stricken and remanded the matter to the Superior Court. The Superior Court subsequently voided the theft conviction and sentence.
Summers v. State, Del. Supr., No. 563, 1999, Walsh, J. (Sept. 15, 2000) (Order).
Next, Summers filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Summers makes the following claims:
Ground one: Ineffective Assistance of Counsel
The trail (sic) counsel failed to file any pre-trail (sic) motion on behalf of the Defendant. On May 7, 1998 the Defendant received a letter from trail (sic) counsel informming (sic) the Defendant that he wasn't going to file any motion that come from me. He claimed that they was (sic) without merit. But if he would've any motion in behalf of the defendant result would have been different.
Ground one "B" . . . The Trail (sic) Counsel without the Defendant or the Court consent passed along the Defendant case file to attemp (sic) to persuade or coerce the Defendant in to taking plea. On July 29, 1998 I, the Defendant recived (sic) a letter written by a Ms. Sandra Dean telling the Defendant what the agreement will conset (sic) of and who will testify and what they will testify too.
This is a clear case of violation of client and attorney confidential communication.
Ground two: Lacked all the Essential Elements of Robbery under 11 Del. C. § 832.
Robbery in the first degree, require's (sic) that each and every element be proven beyond a reasonable doubt. The State failed to meet these requirement (sic) of 11 Del. C. § 832 when the Defendant was found not guilty of weapon offense's (sic). Also on October 17, 2000 a mandate was issued to to (sic) the Defendant, that the conviction and sentence of misdemeanor theft in Cr.A. No. IK97-10-0454 was ordered strickent (sic). In this case and Indictment misdemeanor theft was the named element in count 1# of the Indictment. But the Requirements Title 11 Del. C. § 832 call for the crime of second-degree Robbery Be Proven Beyond a Reasonable Doubt and that defendant Displayed a deadly weapon. And Both these offense's (sic) haven't been proven.
Ground three: Failure to subpoena witnesses and denial of the Right to Confront witnesses.
The State failed to call co-denfendant (sic) to trail (sic) to give her testimomeny (sic) to the Envent (sic) that took place the night of the alledged crime had taken place. Also the State failed to call the original officer who took the statement from the victem (sic) before the Detective Respond to the call and arrived at the Hospital. If Both of these witness would have been call to testify to a diffrent (sic) event that took Placed (sic) on the night that it all happened.
Ground four false Evidence and false testimony . . .
The State allowed testimony knowing to be false be enter (sic) into the Court recored (sic). The victem (sic) testified on Recored (sic) that the testimony she gave to the officer's wasn't true and the report he took was false. The victem (sic) testified that the Defendant took 850$ (sic) in the oniginal (sic) Police report, the Grand Jury Indictment, and all was under the Penalty of Perjury.
Ground Five Lack of Evidence.
The State failed to produce any Physical Evidence. Be Side (sic) Defendant own testimony to the Event's (sic) that took place on the night when alledge crime had taking place. The Defendant contest that his testimony and not be admitted as guilt. Because the Defendant testified to a whole Deffent (sic) Event that took place on the above night. Also the Court give instruction the testimony was only for limited purpse (sic) for the conviction For possession of a deadly weapon by a prohibited. But the Defendant was acquitted of that office (sic) so the testimony should have been entered in the Record for Credibility Purposes. If this would have been enter as credibility purposes the result would have been diffent (sic) beyond a Reasonable Doubt.
Under Delaware law, the Court must first determine whether Summers has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of his postconviction relief claims. Under Rule 61 postconviction claims for relief must be brought within three years of the conviction becoming final. Summers' motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Summers' 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, 554 (1990) (citing Harris v. Reed, 489 U.S. 255 (1989)).
Super. Ct. Crim. R. 61(i)(1).
None of Summers' grounds for relief were raised on direct appeal or at trial. 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 of miscarriage of justice stemming from a constitutional violation that "under mines 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).
Only Summers' first claim is premised on allegations of ineffective assistance of counsel. He has therefore seemingly alleged sufficient cause for not having asserted this ground for relief at trial and on direct appeal. Summers also indirectly alleges ineffective assistance by his appellant counsel for failing to raise his remaining grounds for relief on direct appeal. This type of claim is 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 Summers, 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 "conduct[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, 487 (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.
Id. at 694.
Younger v. State, 580 A.2d 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 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 that "[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.
In the case at bar, Summers attempts to show cause for his procedural default by making 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 Summers' Rule 61 petition and should result in summary dismissal for all his claims.18 I recommend that Summers' postconviction motion be dismissed as procedurally barred by Rules 61(i)(3).