State v. Harrell

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,
Crim. ID No. l3l10l4669
Cr. A. N0s. PN14-03-0802W, etc.
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COREY M. HARRELL
Submitted: May 2, 2016
Decided: May 4, 2016
_ORDER DENYING T’S MOTION
FOR APP()_I.`=°WT?"FS.-%E.`F.’;NT ()F C(__)UNSEL_
This 4“` day of May, 20l6, upon consideration of the Defendant’s Motion
for Appointment of Counsel (D.I. ll3) and the record in this matter, it appears to
the Court that:
(l) On March l3, 2015, Defendant Corey M. Harrell pleaded guilty to
Murder Second Degree and Possession of a Firearm During the Commission of a
Felony ("PFDCF").' He did so in exchange for reduction of the original first
degree murder charge and a favorable joint sentencing recommendation.z
' Plea Agreement and TIS Guilty Plea Form, State v. Corey M Harrell, ID No.
1311()14669 (Del. Super. Ct. Mar. l3, 2015); DEL. CODE ANN. tit. ll, § 635 (2013) (murder in
the second degree is a class A felony); z'a'. at § l447A (PFDCF is a class B felony).
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Plea Agreement, at l ("State and Defense agree to recommend not less than 32 years a
[sic] LV, and no more than 36 years at Level V, combined.").
Following a pre-sentence investigation, Harrell was sentenced on August 21, 2015,
to serve: (1) for Murder Second Degree - 40 years imprisonment suspended after
30 years for diminishing levels of supervisi0n; and (2) for PFDCF - four years
imprisonment.3 Harrell filed no direct appeal from his convictions or sentence.
(2) Harrell has now filed the instant "Motion for Appointment of
Counsel" asking that the Court appoint counsel pursuant to Rule 6l(e) "for ‘ good
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cause shown. "’
This application is presumably made in anticipation of a potential
postconviction motion.§ And so, the Court has engaged in the preliminary
consideration of the application required under Superior Court Criminal Rule
6l(d). The Court finds that, consistent with Rule 61(e)(2), Harrell’s stand-alone
request for appointment of counsel should be denied.
3 Sentencing Order, State v. Corey M. Harrell, ID No. 1311()14669 (Del. Super. Ct. Aug.
21, 2015).
4 Def. Mot. to Appt. Counsel, at 1-2. Harrell refers to the abandoned standard for
appointment of counsel under previous Criminal Rule 61(e)(1). See, e.g., Super. Ct. Crim. R.
61(e)(1) (2012) ("Appointment of Counsel -- Order of Appointment. The court will appoint
counsel for an indigent movant only in the exercise of discretion and for good cause shown, but
not otherwise."). The Court must use the Rule 61 standards for appointment of counsel that
apply to all "postconviction motions filed on or after" June 4, 2()14. See
Order Amending Rule 61 of the Superior Court Rules of Criminal Procedure (Del. Super. Ct.
June 4, 2014). ("This amendment shall be effective on June 4, 2014 and shall apply to
postconviction motions filed on or after that date."); see also Jones v. State, 2015 WL 6746873,
at *1 n.4 (Del. Nov. 4, 2015) (noting that the "the new Rule 61 applies to all ‘postconviction
motions filed on or after’ June 4, 2014).
5 Def. Mot. to Appt. Counsel, at 2 (motion seeks "an order for ‘appointment of counsel’ to
assist this petitioner in the preparation and filing of his rule 61 motion for post conviction
relief").
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(3) Rule 6l(e)(2) expressly provides that, for an inmate like Harrell, the
Court "may appoint counsel for an indigent movant’s first timely postconviction
motion and request for appointment of counsel."é Accordingly, for Harrell’s
request for appointment of counsel to even be considered, it must accompany an
extant first and timely postconviction motion. Harrell has filed no such motion.
Thus, his request for counsel does not substantially comply with the requirements
of Rule 61(€)(2).
(4) Superior Court Criminal Rule 6l(e)(2) further provides that, for an
inmate like Harrell, the Court may appoint counsel "only 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 contendere;7 (iii) granting the motion would
6 super. ci. crim R. 61(@)(2) (@mphasis added).
7 Under Rule 6l(e)(2)(ii), "a substantial claim that the movant received ineffective
assistance of counsel" is one which the movant has demonstrated "has some merit." See, e.g.,
Martinez v. Ryan, 566 U.S. l, _, 132 S. Ct. 1309, 1318 (2012) (articulating the standard for
overcoming a procedural default and obtaining federal review of an ineffective-assistance-of-
counsel claim: "a prisoner must also demonstrate that the underlying ineffective-assistance-of-
trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that
the claim has some merit").
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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."g
Harrell’s request for counsel, if made in conjunction with an extant first and timely
postconviction motion, must address each of these criteria.
NOW, THEREFORE, IT IS ORDERED that Harrell’s Motion for
Appointment of Counsel is DENIED.
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PAUL R. WALLACE, JUDGE
Original to Prothonotary
cc: Danielle J. Brennan, Deputy Attorney General
Mr. Corey M. Harrell, pro se
8 Super. Ct. Crim. R. 6l(e)(2) (emphasis added).
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