Opinion
ID No. 0310003717.
Date Submitted: December 20, 2005.
Date Decided: March 29, 2006.
Upon Consideration of Defendant's Motions for Postconviction Relief. DENIED.
This 29th day of March, 2006, upon Consideration of Defendant's, Errick Wright ("Wright"), Motions for Postconviction Relief pursuant to Superior Court Criminal Rule 61, it appears that:
1. Wright was charged with Theft in excess of $1,000.00, three counts of Theft in excess of $50,000.00 but less than $100,000.00, Forgery Second Degree, and Criminal Mischief. Following a jury trial, Wright was convicted on May 18, 2004, of Theft in excess of $1,000.00, two counts of Theft in excess of $50,000.00, and Criminal Mischief. On June 25, 2004, Judge Calvin L. Scott, Jr., sentenced Wright.
2. On June 2, 2005, a violation-of-probation hearing was held and Wright was found to have violated probation. On June 28, 2005, Wright filed a notice of appeal in the Supreme Court. The appeal was denied on September 7, 2005.
3. Wright has filed several motions in the Superior Court which the Court construes as Motions for Postconviction Relief. These include: 1) "Motion to Present New Evidence and to Revoke all Imposed Sentences and to Dismiss Conviction" filed July 15, 2005; 2) "Notice and Motion to Dismiss and/or Acquit Defendant" filed September 30, 2005; 3) "Notice and Motion for Release" filed October 7, 2005; and 4) "Motion for Release of Defendant" filed November 7, 2005.
4. Before considering the merits of Wright's motions, the Court must first determine whether the Defendant has met the procedural requirements of Superior Court Criminal Rule 61. Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within three years of a final order of conviction; 2) any ground for relief that was not asserted in a prior postconviction proceeding is thereafter barred; 3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and 4) any ground for relief must not have been formerly adjudicated in any proceeding leading to the judgment of conviction.
5. Wright contends that he should be afforded postconviction relief based on the following grounds: 1) newly discovered evidence; 2) prosecutorial misconduct; 3) an illegal arrest and violation of Miranda rights; 4) ineffective assistance of counsel; and 5) insufficient evidence. The merit of each of these claims will be discussed below.
6. First, Wright asserts that he has obtained tax information from the New Castle County Recorder of Deeds on the property located at 1333 Vandever Avenue, Wilmington, Delaware 19801, which indicates that Stephen Tait ("Tait") held title to this property. To warrant a new trial on grounds of newly discovered evidence pursuant to Superior Court Criminal Rule 33, the Defendant must show that the newly discovered evidence is likely to change the result of the proceedings if the plea is allowed to be withdrawn; that the new evidence has been discovered since the proceedings leading to the judgment; and that it could not have been discovered by the exercise of due diligence; and that it is not merely cumulative or impeaching. The Court finds Wright's claim of newly discovered evidence legally insufficient to warrant a new trial. He has not indicated when he discovered this evidence nor does the Court find Wright's explanation that the records "could not be accessed during trial due to a computer conversion" plausible. The Court, therefore, denies Wright's Motion on this basis.
7. With respect to Wright's claims of prosecutorial misconduct, he specifically alleges: 1) That "the state sought to prosecute defendant prejudicially with the assistance of [the] felonious testimony" of Tait who committed perjury when he testified that Wright was still in possession of the 1334 Vandever Avenue property; and 2) The State should not have proceeded to trial without Mr. Louis Goldstein ("Goldstein") as a witness. These claims are procedurally barred from review pursuant to Superior Court Criminal Rule 61(i)(3). Specifically, the rule states:
(3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default; and
(B) Prejudice from violation of the movant's rights.
Under this rule, Wright must demonstrate "cause" for relief from his failure to timely raise the issue on appeal from his convictions, and "actual prejudice" resulting from the alleged error. Cause for procedural relief on appeal ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim. Wright has failed to demonstrate cause for his failure to raise the issues earlier which might justify relief from his procedural default.
Moreover, even if the claims were not procedurally barred, the allegations involving Tait's testimony are merely conclusory and unsupported by substantial evidence. Under Delaware law, it is for the trier of fact to decide how much weight to give to the testimony of a witness and to resolve conflicts in the testimony. In this case, it was entirely within the jury's discretion to accept the State's evidence. Furthermore, nothing in the record supports Wright's contention that the State knowingly offered false testimony. In addition, Wright's claim that the State should have called Goldstein is also substantively without merit. The State was under no obligation to the Defendant to have any specific witness testify. If Goldstein was essential to the case Wright could have subpoenaed him as a witness. Therefore, Wright's claims of prosecutorial misconduct are denied.
8. Wright also alleges that a violation of his Miranda rights tainted his arrest. Because these alleged grounds were well known to Wright prior to his scheduled trial and were not raised nor considered prior to or during his trial, they are procedurally barred by Rule 61(i)(3). However, assuming arguendo that each meets the procedural requirements of Rule 61(i)(3), they also fail on the merits. As to the allegations of illegal arrest and failure to be "Mirandized," Wright has not established that the State obtained any evidence or used those statements to his prejudice at trial. Wright concedes that the evidence that was seized was not introduced at trial. Therefore, Wright's motion is denied on this basis.
9. Wright's fourth claim is that former counsel rendered ineffective assistance of counsel by: 1) failing to raise objections and substantiate that the Defendant's arrest was illegal and the indictment fallible; 2) failing to file pretrial motions or proceed with further investigations; 3) lying to the Defendant and denying that there was a Superior Court Criminal Rule 48(b).
Wright's claims must fail under Strickland v. Washington, and Flamer v. State. The test for ineffective assistance of counsel is (1) whether counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Additionally, there is a strong presumption that legal representation is professionally reasonable. Turning to the first prong, it is evident from the record that defense counsel acted reasonably. On December 10, 2003, defense counsel filed a motion to dismiss pursuant to Superior Court Criminal Rule 48(b) for failure to indict within forty-five days after arrest. The Court, however, ruled that this motion was moot on December 19, 2003. As such, the Court does not find that counsel's conduct fell below the reasonable level of professional assistance with respect to Wright's claim that counsel failed to raise objections and substantiate that the Defendant's arrest was illegal and the indictment fallible. Wright's claim that counsel failed to file pretrial motions or proceed with further investigations is conclusory. The Court cannot find that counsel's actions fell below an objective standard of reasonableness. In addition, the Court finds the allegation that counsel lied and denied the existence of Superior Court Criminal Rule 48(b) unbelievable. Defense counsel filed a motion to dismiss pursuant to Superior Court Criminal Rule 48(b) on December 10, 2003 and Wright filed a pro se motion pursuant to this rule on February 10, 2004. Therefore, Wright was well aware of this rule as early as February 10, 2004, when he filed his motion. Based upon a review of the record, the Court cannot find that counsel's representation fell below an objective standard of reasonableness. However, even assuming that counsel's representation fell below the standard, which it did not, Wright has not established that, but for counsel's errors, the outcome of the proceedings would have been different. The Court does not find it probable that defense counsel prejudiced the outcome of this case because counsel was dismissed before trial. On March 2, 2004, Wright filed a motion to dismiss counsel which was granted by this Court on March 26, 2004. Since Wright has not established that the outcome of the proceedings would have been different, but for counsel's errors, his claims of ineffective assistance of counsel must be denied.
10. Wright's final ground for relief is that the State "presented its case against the Defendant without a witness or evidence resulting in an illegal conviction." This is essentially a claim of insufficient evidence which fails both procedurally and substantively. Since Wright did not raise the claim of insufficient evidence in his appeal to the Supreme Court and he has not shown any reason why it was not raised or any prejudice he has suffered, the issue must fail for procedural default. This claim also fails on the merits. A careful review of the record, in the light most favorable to the State, indicates that the State presented ample evidence, including witnesses and exhibits, from which a reasonable jury could have found beyond a reasonable that Wright was guilty. Therefore, Wright's claims of insufficient evidence are rejected.
11. The Court, therefore, DENIES Wright's Motions for Postconviction Relief for the above stated reasons.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
State v. Hamilton, 406 A.2d 879 (Del.Super.Ct. 1974).
Younger, 580 A.2d at 555; Johnson v. State, 460 A.2d 539 (Del. 1983).
Younger, 580 A.2d at 556 (citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
State v. Jones, 2002 WL 31028584, at *4 (Del.Super.) (citing Tyre v. State, 412 A.2d 326, 330 (Del. 1980)).
466 U.S. 668 (1984).
585 A.2d 736 (Del. 1990).
Strickland, 466 U.S. at 688, 694.
Flamer, 585 A.2d at 753-54.
Super. Ct. Crim. R. 61(i)(3).
Williams v. State, 539 A.2d 164, 168 (Del. 1988).