State v. Harris ( 2020 )

IN SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE :;
: ID No. 1610001844B
V.
JORDON O. HARRIS,
Defendant.
Submitted: June 23, 2020
Decided: July 24, 2020
MEMORANDUM OPINION AND ORDER
Upon Defendant Jordon Harris’ Petition for
Relief Pursuant to Superior Court Criminal Rule 61:
DENIED
Upon Postconviction Counsel’s Motion to Withdraw:
DENIED AS MOOT
Patrick Collins, Esquire and Kimberly A. Price, Esquire, Collins & Associates, 8
East 13" Street, Wilmington, DE 19801
Jordan Harris, Pro Se, James T. Vaughn Correctional Center, 1181 Paddock Road
Smyrna, DE 19977 (SBI#00608777)
KARSNITZ, J.
BACKGROUND AND PROCEDURAL HISTORY
Charges and Indictment
This case involves the sale of a firearm to an undercover detective on
July 19, 2016. On October 24, 2016, a grand jury returned an indictment, charging
Mr. Harris with the following:
1. Possession of a Firearm by a Person Prohibited (PFBPP)
Carrying a Concealed Deadly Weapon (Firearm) (CCDW)
3. Criminal History Record Checks for Sales of Firearms by
Unlicensed Persons (“Record Checks for Sales of Firearms”)
4, Criminal Solicitation Second Degree
Trials and Sentencing
Prior to the first trial, the Court granted a motion to sever PFBPP
charge from the remaining charges. One case (the “A Case”) encompassed the
CCDW, Record Checks for Sales of Firearms, and Criminal Solicitation offenses.
The other case (the “B Case”) included the PFBPP offense. The A Case went to
trial on two separate occasions. The Court granted mistrials in both.
The parties agreed that the third trial would be the B Case, rather than
a retrial of the A Case. A week before the third trial began, trial counsel filed a
Motion to Conduct a Hearing Pursuant to State v. Flowers. The Court granted the
motion, and subsequently conducted a Flowers hearing. After the Court
determined that the State did not need to reveal the identity of the confidential
informant, the case proceeded to a jury trial. The jury found Mr. Harris guilty of
PFBPP an he was sentenced immediately. The Court sentenced Mr. Harris to the
minimum mandatory sentence of five years with no probation to follow. On
November 7, 2017, the State entered a nolle prosequi on the A Case.
Appellate proceeding
Trial counsel timely filed a notice of appeal and appellate counsel
entered his appearance. Mr. Harris requested to represent himself pro se on
appeal. The Supreme Court ordered the Superior Court to hold an evidentiary
hearing, make findings and recommendations, and determine if Mr. Harris’ request
was knowing, intelligent, and voluntary. The Supreme Court adopted the Superior
Court’s findings of fact, conclusions of law, and recommendation, and allowed
Mr. Harris to represent himself on appeal. On December 5, 2018, the Supreme
Court affirmed Mr. Harris’ conviction and sentence.
Postconviction proceedings
Mr. Harris filed a timely pro se Motion for Postconviction Relief on
January 24, 2019. On May 9, 2019, he filed a second Motion for Postconviction
Relief and a Motion for Appointment of Counsel. Postconviction counsel was
appointed to represent Mr. Harris in his postconviction proceedings and this Court
issued an order setting forth deadlines. Having found no meritorious grounds for
postconviction relief, postconviction counsel have filed a Motion to Withdraw.
THE MOTION TO WITHDRAW
BY POSTCONVICTION COUNSEL
Postconviction counsel assert that, based upon a conscientious review
of the record and the law, the Rule 61 petition is wholly without merit, and has
filed a memorandum with their analysis, and motion to withdraw. Postconviction
counsel indicates that they informed Harris of his right to address the issues in
writing and provided him with a copy of their motion to withdraw and the
accompanying memorandum. Postconviction counsel also informed Harris of his
right to submit points he wanted this Court to consider. Harris has now submitted
his points for my consideration. I have not requested a response from the State.
DISPOSITION OF THE PETITION
Harris raises two claims in his filing. First, he claims in rambling
fashion that trial counsel was ineffective for failing to request a “Brady hearing”.
The argument seems to be that his identification was based in part on the
confidential informant’s review of Facebook and Deljis photos of him. Somehow
Harris believes a Brady hearing would have resulted in the production of the
photos which he believes were exculpatory.
Brady requires production of potentially exculpatory evidence. Here
the State met its Brady obligations. Harris claims are conclusory and show no
Brady violation. Harris’ claim is also factually incorrect. The information
requested was provided to him. This claim has been fully analyzed in
postconviction counsel’s memorandum in support of his motion to withdraw, and I
agree with the analysis. No Brady violation occurred, and no claim for ineffective
assistance of counsel based upon such claim has been shown.
Next, Harris claims the trial court erred by failing to give an
instruction based upon Lolly v. State.' This claim has been previously litigated,
and is not a proper subject for a Rule 61 petition.” This argument was rejected in
Harris’ direct appeal, and cannot be a claim appropriate for review in this Rule 61
petition.’
When reviewing a motion by postconviction counsel to withdraw and
an accompanying brief, I must be satisfied that postconviction counsel has made a
conscientious examination of the record and the law for arguable claims. I must
also conduct my own review of the record and determine whether “the appeal is
'611 A.2d 956 (1992).
*Superior Ct. Crim. Rule 61(a)(i).
*See Superior Ct. Crim. Rule 61(i)(4).
indeed so frivolous that it may be decided without an adversary presentation.”
[ have reviewed the record carefully and conclude that the petition is
wholly without merit and devoid of any meritorious issue. I also am satisfied that
postconviction counsel made a conscientious effort to examine the record and the
law and properly determined that Harris could not raise a meritorious claim on
appeal.
NOW, THEREFORE, IT IS ORDERED that the petition for relief
pursuant to Superior Court Criminal Rule 61 is DENIED.
IT IS FURTHER ORDERED that the motion to withdraw as
postconviction counsel is DENIED as moot.
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