Perez v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DANIEL PEREZ, §
§
Defendant Below, § No. 390, 2020
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1807009079 (S)
§
Plaintiff Below, §
Appellee. §
Submitted: February 1, 20211
Decided: March 26, 2021
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES,
Justices.
ORDER
After consideration of the opening brief, the motion to affirm, and the record
below, it appears to the Court that:
(1) The appellant, Daniel Perez, filed this appeal from the Superior Court’s
denial of his first motion for postconviction relief under Superior Court Criminal
Rule 61.2 The State of Delaware has filed a motion to affirm the judgment below on
1
The motion to affirm was filed on December 16, 2020 but was held in abeyance pending
preparation of the transcript of the guilty plea colloquy. The transcript was filed with the
Court on February 1, 2021.
2
State v. Perez, 2020 WL 6561590 (Del. Super. Ct. Nov. 2, 2020).
the ground that it is manifest on the face of Perez’s opening brief that his appeal is
without merit. We agree and affirm.
(2) In September 2018, a grand jury indicted Perez for multiple drug
offenses. The charges arose from drugs found during a traffic stop. On November
14, 2018, Perez filed a motion to suppress the drugs found during the traffic stop.
Perez subsequently retained new counsel to represent him. During a December 20,
2018 office conference, Perez’s counsel requested postponement of the suppression
hearing pending a potential guilty plea.
(3) On February 26, 2019, Perez pled guilty to drug dealing tier 4 (cocaine)
and drug possession tier 4 (heroin). The parties recommended a total sentence of
forty years of Level V incarceration, suspended after three years and six months for
Level III probation. The Superior Court accepted the parties’ recommendation and
sentenced Perez as follows: (i) for drug dealing, twenty-five years of Level V
incarceration, suspended after three years and six months for eighteen months of
Level III probation; and (ii) for drug possession, fifteen years of Level V
incarceration, suspended for eighteen months of Level III probation. Perez did not
appeal the Superior Court’s judgment.
(4) On November 4, 2019, Perez filed a timely motion for postconviction
relief under Superior Court Criminal Rule 61. Perez argued that: (i) he had a right
to review all of the materials leading to his convictions; (ii) his counsel was
2
ineffective for failing to file a motion to suppress; (iii) the traffic stop and ensuing
search of his car and person violated the Equal Protection Clause and were illegal;
and (iv) his sentence should be reviewed under recently enacted legislation. Perez
also filed a motion for appointment of counsel, which the Superior Court denied.
(5) On November 27, 2019, Perez filed a supplemental memorandum in
support of his motion for postconviction relief. In addition to supplementing his
existing claims, he added new claims alleging that the police failed to give him a
Miranda warning and that he was entitled to a Franks hearing to challenge false
statements made by the police. On September 28, 2020, Perez filed a motion to
amend and retract his postconviction claim regarding review of his sentence to
request investigation by the newly created Division of Civil Rights and Public Trust
in the Department of Justice. The Superior Court granted Perez’s motion to amend
and retract.
(6) On November 2, 2020, the Superior Court denied Perez’s motion for
postconviction relief.3 The Superior Court concluded that Perez’s claim for
materials leading to his conviction was moot because he had received those
materials, his ineffective assistance of counsel claim was without merit, and the
request for investigation by the Division of Civil Rights and Public was not
3
Id.3
enforceable by the Superior Court.4 The Superior Court held that Perez’s remaining
claims were barred by Rule 61(i)(3).5 This appeal followed.
(7) In his opening brief, Perez argues that his counsel was ineffective for
failing to file a motion to suppress, the traffic stop and search violated the Equal
Protection Clause and were illegal, the police failed to give him Miranda warnings,
and he was entitled to a Franks hearing to challenge false statements made by the
police. He also questions why the Superior Court did not request a response from
the State or his trial counsel to his postconviction motion. Perez abandons his claims
concerning his need for materials leading to his conviction and an investigation by
the Division of Civil Rights and Public Trust.
(8) This Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.6 The Court must consider the
procedural requirements of Rule 61 before addressing any substantive issues.7
(9) As the Superior Court recognized, the Rule 61 procedural bars did not
apply to Perez’s ineffective assistance of counsel claim. To support a claim of
ineffective assistance of counsel, Perez had to show that: (i) his counsel’s conduct
fell below an objective standard of reasonableness; and (ii) there was a reasonable
4
Id. at *3-4.
5
Id. at *2.
6
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
7
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
4
probability that, but for his counsel’s errors, he would not have pleaded guilty but
would have insisted on going to trial.8 Although not insurmountable, there is a
strong presumption that counsel’s representation was professionally reasonable.9
(10) Contrary to Perez’s contentions, his counsel did file a motion to
suppress based on the allegedly illegal search and seizure of his car and person
during a traffic stop. Perez ultimately chose to plead guilty instead of pursuing the
motion to suppress. A knowing and voluntary guilty plea waives a defendant’s right
to challenge any errors occurring before the entry of the plea (except a lack of subject
matter jurisdiction), including those of constitutional dimensions.10 Perez does not
challenge any aspect of his guilty plea or guilty plea colloquy with the Superior
Court. Given the multiple charges and decades of potential imprisonment Perez
faced, the guilty plea, which included a sentencing recommendation of no more than
three years and six months of non-suspended Level V time, clearly benefitted him.
Perez has failed to show that his counsel’s representation fell below an objective
standard of reasonableness or that he would have insisted on going to trial.
(11) As to Perez’s remaining claims, the Superior Court did not err in finding
those claims barred by Rule 61(i)(3). Rule 61(i)(3) provides that any ground for
relief that was not asserted in the proceedings leading to the judgment of conviction
8
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (Del. 1988).
9
Albury, 551 A.2d at 59 (citing Strickland v. Washington, 466 U.S. 668, 689 (1988)).
10
State v. Casto, 375 A.2d 444, 449 (1977).
5
is thereafter barred unless the defendant can establish cause for relief from the
procedural default and prejudice from a violation of the defendant’s rights. To
establish cause, the movant must ordinarily demonstrate that an external impediment
prevented counsel from constructing or raising the claim.11 Perez raised some of the
claims concerning the traffic stop in his motion to suppress, but chose to plead guilty
instead of pursuing the motion to suppress.12 He made no effort to satisfy the cause
and prejudice prongs of Rule 61(i)(3). Nor did he invoke any exceptions to the
procedural bars under Rule 61(i)(5) and 61(d)(2).13 In addition, by pleading guilty,
Perez waived his claims relating to the traffic stop.14
(12) Finally, the Superior Court did not err in choosing not to request a
response from the State or Perez’s counsel to the postconviction motion. This Court
has expressed a preference for the Superior Court to obtain defense counsel’s
affidavit in response to ineffectiveness claims in a first postconviction motion, but
has not held that such an affidavit is required in all instances.15 In denying the
11
Younger, 580 A.2d at 556.
12
See, e.g., Benge v. State, 945 A.2d 1099, 1102 (Del. 2008) (affirming the Superior
Court’s conclusion that the claim relating to violation of plea agreement was barred by
Rule 61(i)(3) because the claim was not raised on direct appeal).
13
Super. Ct. Crim. R. 61(i)(5) (providing that procedural bars of Rule 61(i)(1), (2), (3), and
(4) do not apply to claim of lack of subject matter jurisdiction or claim that satisfies Rule
61(d(2)); Super. Ct. Crim. R. 62(d)(2) (requiring movant to plead with particularity that
there is new evidence creating a strong inference of actual innocence or that a new rule of
constitutional law applies retroactively and renders the conviction invalid).
14
See supra n.10.
15
Horne v. State, 887 A.2d 974, 975 (Del. 2005) (expressing preference for Superior Court
to obtain trial counsel’s affidavit in response to allegations of ineffective assistance of
6
postconviction motion, the Superior Court stated that it was not requesting a
response from the State or affidavits from Perez’s counsel “[g]iven the clarity of the
record.”16 This was not an abuse of discretion in light of Perez’s claim that his
counsel was ineffective for failing to file a motion that the record revealed counsel
had in fact filed.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves
Justice
counsel). See also Super. Ct. Crim. R. 61(g)(2) (“If the motion alleges ineffective
assistance of counsel, the judge may direct the lawyer who represented the movant to
respond to the allegations.”) (emphasis added).
16
Perez, 2020 WL 6561590, at *4.
7