State of Delaware v. Bowen. ( 2015 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
v. ) Cr. ID Nos. 1302018840
) 1304017341
SHAWNE BOWEN, )
)
Defendant. )
Date Submitted: July 8, 2015
Date Decided: September 28, 2015
Upon Defendant’s Motion for Postconviction Relief
SUMMARILY DISMISSED
Upon Motion to Withdraw as Counsel for Defendant
GRANTED
ORDER
1. On February 25, 2013, Shawne Bowen (“Defendant”) and Timothy Seibert
were charged with Possession of a Controlled Substance with an Aggravating
Factor, Conspiracy Second Degree, and Possession of Drug Paraphernalia.1
Following their arrest, Defendant and Seibert were interviewed about a burglary
that previously occurred on February 13, 2013, to which Defendant and Seibert
confessed their involvement. Defendant and Seibert were additionally charged
1
Criminal Id. No.: 1302018840.
 with Burglary Third Degree, Conspiracy Second Degree, Felony Theft, and
Criminal Mischief.2
2. On May 9, 2013, Paul R. Flockerzie from the Public Defender’s Office
(“PDO”) was appointed to represent Defendant. On June 7, 2013, Robert Goff
of the PDO filed letters of conflict on behalf of Seibert. On that same day,
John Malik appeared on behalf of Seibert for arraignment. On June 25, 2013,
the Office of Conflict Counsel appointed Gregory Johnson to represent Seibert.
Seibert subsequently retained Andrew Witherell as counsel by letter to the
Court dated October 9, 2013. Seibert was never represented by the PDO. To
the contrary, Seibert was represented by conflict counsel and then retained
private counsel.
3. On August 7, 2013, Defendant pled guilty to Burglary in the Third Degree and
Possession of a Controlled Substance with an Aggravating Factor. In
exchange for Defendant’s guilty plea, the State dismissed the remaining
charges. As to Burglary in the Third Degree, Defendant was immediately
sentenced to three (3) years at level V, suspended for eighteen (18) months at
level III. As to Possession of a Controlled Substance with an Aggravating
Factor, Defendant was immediately sentenced to one (1) year at level V,
suspended for eighteen (18) months at level III.
2
Criminal Id. No.: 1304017341.
1
4. On January 2, 2014, Probation and Parole filed a violation of probation.
Following a hearing on January 23, 2014, Defendant was sentenced to the
Key/Crest Continuum for three (3) years at level V, suspended after successful
completion, for the balance to be served at level IV, suspended after successful
completion to one (1) year at level III.
5. On April 2, 2014, Defendant filed a Motion for Sentence Reduction as a self-
represented litigant, 3 which was denied by Order dated April 14, 2014.
6. Defendant filed a timely motion for postconviction relief (“PCR Motion”) on
April 8, 2014, as a self-represented litigant. This is Defendant’s first motion
for postconviction relief. 4 Defendant contends that his constitutional rights
were violated when he and his co-defendant, Seibert, were simultaneously
represented by the PDO.
7. Under the most recent version of Superior Court Criminal Rule 61, Defendant
would not have met the requirements for appointment of counsel to represent
3
Defendant filed his Motion for Sentence Reduction pursuant to Super. Ct. Crim. R. 35(b),
which provides that “[t]he court may reduce a sentence of imprisonment on a motion made
within 90 days after the sentence is imposed.”
4
On April 30, 2014, the PDO filed a Motion for Postconviction Relief on behalf of Defendant,
asserting relief due to alleged governmental misconduct related to the Office of the Chief
Medical Examiner. However, a stipulation was filed whereby the PDO agreed to withdraw its
motion and all claims therein such that the status of Defendant’s postconviction relief proceeding
was as if the PDO’s motion was never filed. The stipulation was granted by Order dated January
23, 2015.
2
him in his postconviction proceeding.5 However, based on his date of filing,
Defendant benefitted from an earlier version of Rule 61, which provided that
“[t]he court will appoint counsel for an indigent movant’s first postconviction
proceeding.” 6 As a result, on June 27 2014, Donald Roberts (“Rule 61
Counsel”) was appointed to represent Defendant.
8. According to Rule 61(d)(4), “If it plainly appears from the motion for
postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief, the judge may enter an order for its summary
dismissal and cause the movant to be notified.” 7
9. To avoid summary dismissal, Defendant must do more than make conclusory
assertions of law or fact.8 Defendant must support all asserted grounds for
relief with “concrete allegations of actual prejudice.” 9
10. Defendant has failed to assert any ground for relief that reflects that Defendant
was actually prejudiced. Defendant’s only asserted ground for relief is that his
5
See Super. Ct. Crim. R. 61(e)(2) (2015) (stating that the judge may only request appointment of
counsel for a defendant seeking to set aside a judgment resulting from a guilty plea if the judge
determines that “(i) the conviction has been affirmed by final order upon direct appellate review
or direct appellate review is unavailable; (ii) the motion sets forth a substantial claim that the
movant received ineffective assistance of counsel in relation to the plea of guilty or nolo
contendre; (iii) granting the motion would result in vacatur of the judgment of conviction for
which the movant is in custody; and (iv) specific exceptional circumstances warrant the
appointment of counsel.”).
6
Super. Ct. Crim. R. 61(e)(2) (2014).
7
Super. Ct. Crim. R. 61(d)(4) (2014).
8
State v. Watson, 2008 WL 1952160, at *2 (Del. Super. Mar. 25, 2008).
9
Id..; see also State v. Drake, 2008 WL 5264880, at *2 (Del. Super. Dec. 15, 2008).
3
constitutional rights were violated when he Seibert were both represented by
the PDO. To the contrary, Defendant was represented by the PDO until Rule
61 Counsel was appointed while Seibert was represented by private or conflict
counsel. Specifically, Malik entered his appearance on behalf of Seibert for
Seibert’s arraignment. Johnson was then appointed as conflict counsel for
Seibert. Finally, Seibert retained private counsel, Witherell. Accordingly, it
plainly appears that Defendant’s PCR Motion is without merit because no
conflict of interest existed between Defendant’s counsel and Seibert’s counsel.
11. After reviewing the record to determine if any other meritorious grounds for
relief exist and concluding that there are no meritorious grounds for relief,
Rule 61 Counsel filed a Motion to Withdraw pursuant to Superior Court
Criminal Rule 61(e)(2) on April 27, 2015. 10 Defendant failed to file a response
to Rule 61 Counsel’s Motion to Withdraw.
12. Withdrawal may be appropriate when “counsel considers the movant’s claim
to be so lacking in merit that counsel cannot ethically advocate it, and counsel
is not aware of any other substantial ground for relief available to the movant,
counsel may move to withdraw.”11 The Court must also conduct a review of
10
Super. Ct. Crim. R. 61(e)(2)(2015). After the June 2015 amendment to Rule 61, this
subsection has become R. 61(e)(6).
11
Id.
4
the record to determine whether Defendant’s motion contains any reasonable
grounds for relief. 12
13. Rule 61 Counsel was appointed by the Court to represent Defendant in the
postconviction proceedings and, after a careful review of the record, applicable
case law, and communication with Defendant, concluded there are no
meritorious grounds for postconviction relief. Further, after reviewing the
record, the Court concludes that there are no reasonable grounds for relief.
Accordingly, Rule 61 Counsel should be permitted to withdraw as counsel.
NOW, THEREFORE, this 28th day of September, 2015, Defendant
Shane Bowen’s Motion for Postconviction Relief is hereby SUMMARILY
DISMISSED and the Motion to Withdraw as Counsel is hereby GRANTED.
IT IS SO ORDERED.
Andrea L. Rocanelli
____________________________________
The Honorable Andrea L. Rocanelli
12
State v. West, 2013 WL 6606833, at *3 (Del. Super. Dec. 12, 2013).
5