Pardo v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
GABRIEL F. PARDO, §
§
Defendant Below, § No. 550, 2019
Appellant, §
§
v. § Court Below–Superior Court
§ of the State of Delaware
STATE OF DELAWARE, §
§ Cr. ID No. 1409011585 (N)
Plaintiff Below, §
Appellee. §
§
Submitted: October 2, 2020
Decided: November 12, 2020
Before VALIHURA, VAUGHN, and TRAYNOR, Justices.
ORDER
After careful consideration of the parties’ briefs and the Superior Court record,
it appears to the Court that:
(1) The appellant, Gabriel Pardo, appeals the Superior Court’s denial of his
motion for postconviction relief under Superior Court Criminal Rule 61 (“Rule 61”).
For the reasons set forth below, we affirm the Superior Court’s judgment.
(2) Following an eight-day bench trial in 2015, Pardo was convicted of
manslaughter, leaving the scene of a collision resulting in death (“LSCRD”),
reckless driving, and six counts of endangering the welfare of a child. The Superior
Court sentenced Pardo to an aggregate of eight years and seven months of Level V
incarceration followed by decreasing levels of supervision. On appeal, Pardo
argued, as a matter of first impression, that the statute governing LSCRD (“Section
4202”)1 was a strict liability statute and therefore unconstitutional under the test set
forth by the United States Supreme Court in Morissette v. United States.2 Pardo also
maintained that the Superior Court erred by adding a voluntary intoxication
instruction to the pattern jury instructions for manslaughter, by denying his motion
for judgment of acquittal, and by denying his request for a missing-evidence
instruction.
(3) The Court held that Section 4202 was not a strict liability statute
because it requires proof of a defendant’s knowledge of his involvement in a
collision. 3 We also concluded that the Superior Court did not abuse its discretion
by including a voluntary intoxication instruction in its statement of the law with
respect to manslaughter,4 that the Superior Court properly denied Pardo’s motion for
judgment of acquittal because the evidence of Pardo’s guilt—even excluding the
evidence challenged by Pardo on appeal—was “overwhelming,”5 and that a missing
evidence instruction was not required.6
(4) Pardo then timely filed in the Superior Court a motion for
postconviction relief under Rule 61 alleging that (i) trial counsel was ineffective for
1
21 Del. C. § 4202.
2
342 U.S. 246 (1952).
3
Pardo v. State, 160 A.3d 1136, 1147 (Del. 2017).
4
Id. at 1149.
5
Id. at 1153.
6
Id.2
failing to argue that the evidence did not support a finding of recklessness necessary
to sustain a manslaughter conviction; (ii) trial counsel improperly withdrew a motion
to admit the victim’s toxicology report without Pardo’s permission; (iii) trial counsel
erred by failing to object to the admission of his son’s hearsay statement; and (iv)
trial counsel’s cumulative errors amounted to ineffective assistance of counsel. At
Pardo’s request, the Superior Court appointed counsel to assist him in the
postconviction proceedings. On December 6, 2018, postconviction counsel
informed the Superior Court that he had not identified any meritorious
postconviction claims and filed a motion to withdraw under Rule 61(e)(7). Pardo
then amended his original motion to add six additional ineffective assistance of trial
counsel claims. At the Superior Court’s direction, trial counsel filed an affidavit
responding to each of Pardo’s claims.
(5) On November 26, 2019, the Superior Court denied Pardo’s motion for
postconviction relief and granted counsel’s motion to withdraw. 7 The Superior
Court found that (i) Pardo’s claim that trial counsel did not effectively argue that
there was insufficient evidence to support a finding of recklessness was procedurally
barred as formerly adjudicated on direct appeal;8 (ii) Pardo was not able to establish
ineffective assistance of counsel under Strickland v. Washington9 with respect to the
7
State v. Pardo, 2019 WL 6329067 (Del. Super. Ct. Nov. 26, 2019).
8
Id., at *9.
9
466 U.S. 668 (1984).
3
remaining specific claims because trial counsel’s actions were professionally
reasonable and/or Pardo could not substantiate that he suffered prejudice;10 and (iii)
because Pardo’s specific claims were without merit, his claim of cumulative error
likewise failed.11 This appeal followed.
(6) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.12 Both the
Superior Court and this Court on appeal must first consider the procedural bars of
Rule 61 before considering the merits of any of the underlying postconviction
claims.13 Rule 61(i)(4) bars any ground for relief that was previously adjudicated.
(7) On appeal, Pardo raises, for the first time, claims of ineffective
assistance of appellate counsel. Specifically, Pardo argues that appellate counsel
was ineffective for failing to raise the following arguments: (i) the trial court erred
by considering evidence of Pardo’s alcohol consumption because he had not been
charged with driving under the influence; (ii) the trial court erred by permitting New
Castle County Police Department Corporal William Hussong to testify as an expert
witness in the field of collision reconstruction; (iii) prosecutorial misconduct
because the prosecution asked Pardo’s ex-wife to take Pardo’s children to the Child
Advocacy Center to be interviewed and permitted Pardo’s ex-wife to testify that the
10
State v. Pardo, 2019 WL 6329067, at **10-16.
11
Id., at *16.
12
Urquhart v. State, 203 A.3d 719, 726 (Del. 2019).
13
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
children were undergoing therapy; (iv) the Superior Court erred by permitting the
children’s mother to be present in the room when the children testified; (v) trial
counsel erred by failing to request an accident instruction; (vi) Pardo’s convictions
for endangering the welfare of a child resulted in multiple punishments for the same
criminal conduct in violation of double jeopardy principles; and (vii) the Superior
Court placed improper conditions on his sentence.14
(8) As a preliminary matter, because Pardo did not brief any of the
arguments raised by his motion for postconviction relief in the Superior Court
regarding the ineffective assistance of trial counsel, he has waived those claims in
this Court.15 Nevertheless, the Court has carefully reviewed the Superior Court
record—including trial counsel’s affidavit—and has concluded that the Superior
Court did not abuse its discretion in denying Pardo’s motion for postconviction
relief.
(9) With respect to the issues Pardo raises for the first time on appeal, we
review these claims in the interests of justice and for plain error because they were
not presented to the trial court.16 Under the plain error standard of review, “the error
14
Pardo attaches to his motion as an exhibit a “Motion to Expand/Supplement the Record.” It
appears from the date on this motion—December 18, 2019—that Pardo intended to file it in this
Court along with his notice of appeal. However, the docket reflects that this document was first
filed on March 23, 2020, as an attachment to Pardo’s petition to file his opening brief out of time.
“It is a basic tenant of appellate practice that an appellate court reviews only matters considered in
the first instance by a trial court[,]” Delaware Electric Cooperative, Inc. v. Duphily, 703 A.2d
1202, 1206 (Del. 1997), and we see no need to expand or supplement the record in this case.
15
Somerville v. State, 703 A.2d 629, 631 (Del. 1997).
16
Del. Supr. Ct. R. 8.
5
complained of must be so clearly prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process.”17
(10) Although a defendant is entitled to effective assistance of counsel on
appeal, his attorney is not required to raise every nonfrivolous issue.18 “A defendant
can only show that his appellate counsel ineffectively represented him where the
attorney omits issues that are clearly stronger than those the attorney presented.”19
Here, appellate counsel raised several meritorious arguments. These arguments
included, as noted above, an issue of first impression in the State—the
constitutionality of Section 4202—and the Court considered the issue to be of such
significance that it ordered oral argument. In short, even if Pardo had raised his
claims of ineffective assistance of appellate counsel below, he is not entitled to relief.
NOW, THEREFORE, IT IS ORDERED that judgment of the Superior Court
is AFFIRMED.
BY THE COURT:
/s/ James T. Vaughn, Jr.
Justice
17
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
18
Ploof v. State, 75 A.3d 811, 831 (Del. 2013).
19
Id. at 832.
6