State v. Escalera ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. No. 1606024326 A&B
Vv.
ELI ESCALERA,
Nee Nee Nee ee ee ee” Se”
Defendant.
Submitted: September 3, 2020
Decided: October 30, 2020
Upon Defendant’s Motion for Postconviction Relief
DENIED
Upon Motion to Withdraw as Counsel
GRANTED
ORDER
Upon consideration of the Motion for Postconviction Relief filed by
Defendant Eli Escalera; Rule 61 of the Superior Court Criminal Rules of Procedure;
the facts, arguments, and legal authorities set forth by Defendant; statutory and
decisional law; and the entire record in this case, the Court hereby finds as follows:
1. On June 29, 2016, Defendant was arrested for threatening a stranger
with a knife. On October 24, 2016, a grand jury issued an indictment for five
charges: Aggravated Menacing, Possession of a Deadly Weapon During
Commission of a Felony (“PDWDCF”), Possession of a Deadly Weapon By a
Person Prohibited (“PDWBPP”), Disorderly Conduct, and Resisting Arrest.
yy Defendant was represented by Misty Seemans, Esquire (“Trial
Counsel’).
ci Prior to trial, the Court severed the PDWBPP charge from the other
charges.
4. The jury acquitted Defendant of Resisting Arrest, but found him guilty
of Aggravated Menacing, PDWDCF, and Disorderly Conduct. Following the jury
trial, Defendant was found guilty of PDWBPP in a bench trial.
=. On June 26, 2017, the State filed a motion to declare Defendant an
habitual offender under 11 Del. C. § 4214 (c) and (d). By Order dated August 11,
2017, Defendant was declared an habitual offender. As an habitual offender,
Defendant was sentenced as follows: for Possession of a Deadly Weapon During
Commission of a Felony, 25 years minimum mandatory at Level V; for Aggravating
Menacing, five years at Level V, suspended immediately for four years at Level IV
supervision, suspended after six months for two years at supervision Level III; for
PDWBPP, three years at Level V, suspended immediately for supervision Level II.
6. Defendant filed a direct appeal. The Delaware Supreme Court affirmed
Defendant’s conviction and sentencing by Order dated May 25, 2018.!
7. On December 14, 2018, Defendant timely filed his first motion for
postconviction relief as a self-represented litigant as well as a request for
' Escalera v. State, 2018 WL 2406009, at *6 (Del. May 25, 2018) (TABLE).
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appointment of counsel. By Order dated January 3, 2019, this Court granted
Defendant’s request for representation and Elise Wolpert, Esquire was appointed
(“Rule 61 Counsel”).’
8. At the Court’s request, Trial Counsel filed an affidavit addressing the
Defendant’s claim of ineffective assistance of counsel.
9, Rule 61 Counsel identified no meritorious claims and filed a motion to
withdraw pursuant to Superior Court Criminal Rule 61(e)(7).
10. The State opposes Defendant’s motion for postconviction relief.
11. Postconviction relief is a “collateral remedy which provides an avenue
for upsetting judgments that have otherwise become final.”? To protect the finality
of criminal convictions, the Court must consider the procedural requirements for
relief set forth in Rule 61(i) before addressing the merits of Defendant’s Motion.’ If
a procedural bar exists, the Court will not consider the merits of the postconviction
claim.°
2 This Court found that Defendant was entitled to appointment of counsel pursuant
to Rule 61 on the grounds that: (1) Defendant’s motion was timely; (2) this was
Defendant’s first motion for postconviction relief; and (3) Defendant was convicted
of a Class B felony.
> Flamer v. State, 585 A.2d 736, 745 (Del. 1990).
* Younger v. State, 580 A.2d 552, 554 (Del. 1990).
> Id.
12. Rule 61(i)(1) bars a motion for postconviction relief if the motion is
filed more than one year from the final judgment of conviction;® this bar is
inapplicable as Defendant’s Motion was timely. Rule 61(i)(2) bars successive
motions for postconviction relief;’ this bar is inapplicable as this is Defendant’s first
postconviction motion. Rule 61(4)(3) bars relief if the postconviction motion
includes claims that were not asserted in prior proceedings leading to the final
judgment, unless the movant shows cause for relief from the procedural bars and
prejudice from a violation of the movant’s rights.’ Moreover, Rule 61(i)(4) bars
relief if the postconviction motion includes grounds for relief formerly adjudicated
in any proceeding leading to the judgement of conviction, in an appeal, or in a
postconviction proceeding.’ If a procedural bar exists, the Court will not consider
the merits of the post-conviction claim.!? Rule 61(i)(3) and (i)(4) do not apply to
Defendant’s ineffective assistance of counsel claims, as those claims could not be
raised on direct appeal.
13. However, Defendant’s Motion raises six grounds for relief “not
asserted in the proceedings leading to the judgment of conviction” as required by
Rule 61(i)(3). Defendant did not allege the following claims on direct appeal: 1)
© Super. Ct. Crim. R. 61(i)(1).
7 Super. Ct. Crim. R. 61(i)(2).
8 Super. Ct. Crim. R. 61(i)(3).
? Super. Ct. Crim. R. 61(i)(4).
'© Younger, 580 A.2d at 554.
violation of the right to a speedy trial; 2) prosecutorial misconduct during opening
statements; 3) prosecutorial misconduct related to the Victim’s Compensation
Assistance Program funds; 4) juror misconduct; 5) chain of custody; and 6) violation
of due process.!!
14. Procedural bars for a postconviction claim are not applicable 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.”!* In Wright v. State, the
Delaware Supreme Court applied the narrow “miscarriage of justice exception” of
Rule 61(i)(5) to the defendant’s claims of Brady violations.'? The Wright Court
determined there was a reasonable probability that the verdict might have been
different in that case and determined the cumulative impact of the violations created
doubt in the outcome of trial.'* Accordingly, Wright was remanded for a new trial.'°
15. Unlike the circumstances in Wright, Defendant’s contentions fall short
of establishing a colorable constitutional violation when considered individually or
cumulatively. Further, Defendant has offered no evidence to support the claims and
"! See Def.’s Am. Rule 61 Mot.
2 Wright v. State, 91 A.3d 972, 985-86 (Del. 2014) (explaining the miscarriage of
justice exception to the procedural bars set forth in Superior Court Criminal Rule of
Procedure 61).
'3 Td. at 983.
'4 Td. at 993-94.
'S Td. at 994,
has not demonstrated that reconsideration of the claims is warranted in the interest
of justice. Nor has Defendant presented a colorable claim of a miscarriage of justice
because of any constitutional violations to warrant the application of the exception
in Rule 61(i)(5). The fundamental legality, reliability, integrity, and fairness of the
proceedings leading to Defendant’s conviction and sentencing are sound, and
Defendant’s defaults are not excused. Because the six claims could have been raised
on direct appeal, but were not raised, the claims are procedurally barred.
16. Because the procedural requirements of Rule 61(4)(3) and (4)(4) are
inapplicable to Defendant’s claims as a self-represented litigant for ineffective
assistance of counsel, the Court will address those claims on the merits.
17. The Sixth Amendment guarantees defendants in a criminal trial the
right to counsel.'® To assure that the outcome of a criminal trial is just, defendants
have “the right to effective assistance of counsel.”'’ The standard used to evaluate
claims of ineffective assistance of counsel is the two-prong test articulated by the
United States Supreme Court in Strickland v. Washington,'* as adopted in
Delaware.'? In order to satisfy Strickland, the movant must demonstrate: (1) that
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counsel’s representation fell below an objective standard of reasonableness,”? and
'6 Gideon v. Wainright, 372 U.S. 335, 342-43 (1963).
'7 McMann v. Richardson, 379 U.S. 759, 771 (1970).
18 466 U.S. 668 (1984).
'9 See Albury v. State, 551 A.2d 53 (Del. 1988).
0 Strickland, 466 U.S. at 687.
(2) there is a reasonable probability that but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”! Failure to prove either prong
will render the claim insufficient;?* therefore, even if a defendant can show that
counsel made a professionally unreasonable error, the defendant must still show that
the error had an effect on the judgment.”
18. With respect to the first prong—performance prong—the movant must
overcome the strong presumption that counsel’s conduct was_ professionally
reasonable.”* To satisfy the performance prong, Defendant must assert specific
allegations to establish that Trial Counsel acted unreasonably.”> The United States
Supreme Court has pointed to “prevailing professional norms” as the standard
against which to judge the reasonableness of counsel’s representation, with a great
deference to counsel’s strategic judgments.”°
“1 Td. at 694.
22 Td. at 688; see also State v. McLaughlin, 2014 WL 2964945, at *2 (Del. Super. Ct.
July 2, 2014), aff'd, 2015 WL 1306916 (Del. Mar. 23, 2015) (“Because a defendant
must show both that an attorney made a professionally unreasonable error and that
the error had an effect on the judgment, failure to prove either is sufficient to defeat
a claim of ineffective assistance.”); Dawson v. State, 673 A.2d 1186, 1196 (Del.
1996).
3 Strickland, 466 U.S. at 692.
*4 Td. at 687-88.
25 Id. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations
of ineffectiveness will not suffice.”).
*6 Strickland, 466 U.S. at 688.
19. An attorney may make strategic choices when presenting a client’s
case,”’ so long as the choice is “well within the range of professionally reasonable
judgments ... .”"8 Simply because another strategy may have produced a better
outcome in hindsight is not enough for a court to rule that a lawyer’s performance
was ineffective, given the strong presumption that the performance was adequate.””
20. With respect to the second prong—the “prejudice prong”’—the movant
must provide concrete allegations of prejudice, specifying the nature of the prejudice
and the adverse effects actually suffered.*? The Court must determine whether there
is a reasonable probability that the outcome would have been different had Trial
Counsel not made the alleged errors.*!
21. Defendant first argues that Trial Counsel was ineffective by failing to
obtain a DNA sample from the victim’s boyfriend. For Defendant to prevail, he
must prove Trial Counsel’s failure to request independent DNA evidence would
have made a difference in the outcome of the case.** Defendant has not shown that
the collection of the boyfriend’s DNA would have made a difference in the outcome
27 Td. at 690-91 (“[S]trategic choices made after thorough investigation of law and
facts relevant to plausible options are virtually unchallengeable . . . .”).
28 Id. at 688 (“The proper measure of attorney performance remains simply
reasonableness under prevailing professional norms.”).
9 See id. at 680, 689, 712.
30 Id. at 692; Dawson, 673 A.2d at 1196.
3! Strickland, 466 U.S. at 694.
32 See State v. Thomas, 2019 WL 3205773, at *3 (Del. Super. Ct. July 16, 2019)
(citing Harrington v. Richter, 563 U.S. 86 (2011)).
8
of the case. Further, Trial Counsel’s decision not to collect the DNA was a
reasonable trial strategy. Strategically, an attorney’s decision not to request
independent testing of DNA is within the range of reasonable judgments. At trial, it
was established that DNA belonging to an unknown male was found on the knife,
and that no conclusions could be made as to Defendant.** In her affidavit, Trial
Counsel explained her concern that if the DNA results were not consistent with the
victim’s boyfriend, she would be prohibited from making the argument that another
person pointed the knife and that would weaken her trial strategy.°4 Additionally,
the record reflects that Trial Counsel argued the issue of the unknown male’s DNA
on the knife in her closing argument.*> Thus, Trial Counsel’s decision not to request
DNA from the boyfriend was based on sound strategic reasoning. Defendant cannot
show that Trial Counsel’s decision was professionally unreasonable, nor can
Defendant show actual prejudice from the alleged violation. Therefore, Defendant’s
first claim of ineffective assistance of counsel must be denied as it fails under
Strickland.
22. Second, Defendant argues Trial Counsel provided ineffective
assistance of counsel by failing to request a continuance to locate the 911 caller who
described the incident. In the 911 call, the caller described the aggressor holding the
3 Escalera, 2018 WL 2406009, at *3 (Del. May 25, 2018) (TABLE).
34 Trial Counsel Aff. Resp. to Def.’s Rule 61 Mot. 6.
3° Ty. Trial 173:21-174:23, Apr. 5, 2017.
knife as wearing a green shirt and tan shorts.*° Trial Counsel believed the 911 caller
would have been an unfavorable witness for the defense because at the time of
Defendant’s arrest, he was wearing a green shirt and tan shorts.*’ In addition,
Defendant was identified at the scene by a police officer who arrested Defendant
1.38 Trial Counsel was in the best position
shortly thereafter, and later testified at tria
to decide how and when to proceed with trial, and whether or not to call the 911
witness.*’ The strong presumption that Trial Counsel’s actions were professionally
reasonable under the circumstances cannot be overcome as deciding whether or not
to call a witness that could be hostile to the defense was in the discretion of Trial
Counsel. Therefore, under Strickland, Defendant’s second ineffective assistance
claim must be denied.
23. Finding that Defendant’s ineffective assistance of counsel claims fail,
the Court now considers Rule 61 Counsel’s Motion to withdraw pursuant to Rule
61(e)(6). After reviewing the record to determine if there were any other meritorious
grounds for relief and concluding that there are no such grounds, Rule 61 Counsel
filed a motion to withdraw as counsel. Withdrawal may be appropriate when
36 Trial Counsel’s Aff. Resp. to Def.’s Rule 61 Mot. 8.
37 Td.
38 The officer testified that Defendant was wearing a green shirt and tan shorts. Tr.
Trial 82:6-7, Apr. 5, 2017.
39 Strickland, 466 U.S. at 690-91 (“[I]n any ineffectiveness case, a particular decision
not to investigate must be directly assessed for reasonableness in all the
circumstances applying a heavy measure of deference to counsel’s judgments.”).
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“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 grounds for
relief available to the movant.’ Additionally, the Court must also conduct a review
of the record to determine whether Defendant’s motion contains any reasonable
ground for relief.*!
24. Rule 61 Counsel has stated that she undertook a thorough analysis of
the record to evaluate Defendant’s claims and determined that the claims do not have
enough merit to be ethically advocated.
25. The Court has reviewed the record and determined Defendant’s
postconviction relief motion presents no colorable claims. Therefore, Rule 61
Counsel shall be permitted to withdraw.
NOW, THEREFORE, this 30" day of October, 2020, for the reasons
stated herein, Defendant’s Motion for Postconviction Relief is hereby
DENIED. Postconviction Counsel’s Motion to Withdraw is hereby
GRANTED.
IT IS SO ORDERED.
e
CA 2013 WL 6606833, at *3 (Del. Super. Ct. Dec. 12, 2013).
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