State of Delaware v. Matos.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. No. 1003000386
)
)
JAMES MATOS, )
)
Defendant. )
)
Submitted: December 10, 2014
Decided: February 19, 2015
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
AND
COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED.
Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Patrick J. Collins and Albert J. Roop, V, Esquire, 8 East 13th Street, Wilmington,
Delaware, 19801, Attorney for Defendant James Matos.
PARKER, Commissioner
This 19th day of February, 2015, upon consideration of Defendant’s Motion for
Postconviction Relief and Defendant’s Rule 61 Counsel’s Motion to Withdraw, it appears
to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On March 1, 2010, Defendant James Matos was arrested and thereafter indicted
on charges of Arson First Degree, Burglary Second Degree, Reckless Endangering First
Degree, Cruelty to Animals, Harassment, and three counts of Breach of Bond Conditions.
2. The Superior Court jury trial commenced on November 3, 2010. At the
November 5, 2010 prayer conference, the trial judge reduced the arson charge from first-
degree arson to second–degree arson, because the parties (and the judge) agreed that
Defendant could not be charged with first-degree arson based on the statutory definition
of the term “building.” 1
3. Following the trial, on November 9, 2010, the jury found Defendant guilty of the
following offenses: second-degree arson, first-degree reckless endangering, first degree
criminal trespass (a lesser-included offense of second degree burglary), cruelty to
animals, three counts of breach of bond conditions and harassment.
4. Defendant Matos was declared a habitual offender, pursuant to 11 Del. C. §
4214(a), for each of his felony convictions.
5. On January 28, 2011, Defendant was sentenced as follows:
* 15 years at Level V for arson second degree;
* 5 years at Level V for reckless endangering first degree;
* 2 years at Level V for each of the three convictions of breach of bond
conditions;
1
November 5, 2010 Trial Transcript, pg. 2.
1
* 1 year at Level V, suspended for 1 year at Level III probation, for criminal
trespass;
* 1 year at Level V, suspended for 1 year at Level III probation for
harassment; and
* 1 year at Level V, suspended after 6 months, for 6 months at Level III
probation for animal cruelty.
6. Defendant filed a direct appeal to the Delaware Supreme Court. On July 13, 2011,
the Delaware Supreme Court affirmed the conviction and sentence of the Superior
Court. 2
FACTS
7. The charges at issue stem from the following facts as set forth by the Delaware
Supreme Court in its opinion on Defendant’s direct appeal. 3
8. In September 2009, Defendant Matos began living with Joy Breen, her two
children, and the family dog at Breen’s apartment, located at 47 Norway Avenue in
Wilmington, Delaware. At the time, the 47 Norway Avenue building was approximately
100 years old. Over the years, it had been converted into an apartment building that
contained three apartment units, one on each floor. Breen’s apartment was located on the
first floor. 4
9. About a year and a half after Matos moved in with Breen, they had a falling out,
and Breen asked Matos to move elsewhere. Matos moved to his sister’s house for the
2
Matos v. State, 2011 WL 2732575 (Del.).
3
Matos v. State, 2011 WL 2732575, at * 1 (Del.).
4
Id.2
next few days, but then returned to Breen’s apartment the following weekend, where he
spent Sunday night, February 28, 2010. 5
10. The next day, March 1, 2010, Matos left Breen’s apartment in the early morning
without explanation. Immediately thereafter, Breen asked her landlord to have the locks
on her apartment changed. After asking her landlord to do that, Breen then left her
apartment to go to work. Her two children left to go to school, in accordance with their
daily routine. The family dog remained in the apartment in a dog crate. 6
11. At about 9:00 a.m. that same day, Matos returned and let himself into Breen’s
apartment. Aware of the dog’s presence in the crate, Matos went into Breen’s bedroom
and, using his lighter, set Breen’s bedding on fire. He then stood there watching the
flames grow before leaving the building. The fire and smoke destroyed Breen’s
apartment and killed the family dog. 7
12. Shortly after 9:00 a.m., Harold Howell, who lived on the third floor, noticed
smoke coming into his apartment. Howell went downstairs to investigate, and saw
smoke coming out of the rear of Breen’s apartment. Howell immediately called the fire
department and the building’s owner and reported that the building was on fire.
Although the fire department responded quickly, Breen’s apartment had already been
destroyed by the excessive heat and smoke damage. The second and third floor
apartments also suffered fire-related damage. 8
5
Id.6
Id.7
Id.8
Id.3
13. The evidence in this case was overwhelming against Defendant. A witness
observed him enter the residence shortly before the fire and exit shortly afterwards. 9
Defendant told his sister, Anita, that he tossed a lighter on the bed. 10 Defendant’s lighter
was found at the point of origin in the open position. 11 Defendant sent a letter to the
victim from prison which laid out in detail exactly how he committed the crimes. The
“confession” letter was admitted into evidence. 12
RULE 61 MOTION AND COUNSEL’S MOTION TO WITHDRAW
14. On March 5, 2012, Defendant filed a pro se motion for postconviction relief along
with a supporting memorandum of law alleging ineffective assistance of counsel against
trial and appellate counsel. 13 Defendant’s motion for the appointment of counsel was
denied. 14 Before making a recommendation, the record was enlarged and Defendant’s
trial counsel and appellate counsel were each directed to submit an Affidavit responding
to Defendant’s ineffective assistance of counsel claims. Trial counsel filed his Affidavit
on April 25, 2012 15, and appellate counsel filed her Affidavit on April 26, 2012 16.
15. Defendant Matos then filed a motion to amend his Rule 61 claims. 17 The court
granted Defendant’s motion to amend. 18 Appellate counsel filed a supplemental
Affidavit responding to Defendant’s amended motion on June 8, 2012. 19 In turn, the
9
November 3, 2010 Trial Transcript, at pgs. 35-40.
10
November 4, 2010 Trial Transcript, at pgs. 147-148.
11
November 4, 2010 Trial Transcript, at pgs. 26-29, 61-63.
12
See, Superior Court Docket No. 48, Exhibit A to Affidavit of Defense Counsel in Response to Rule 61
Motion
13
Superior Court Docket Nos. 37 and 38.
14
See, Superior Court Docket Nos. 41, 45, & 46.
15
Superior Court Docket No. 48.
16
Superior Court Docket No. 51.
17
Superior Court Docket No. 54.
18
Superior Court Docket No. 55.
19
Superior Court Docket Nos. 57, 58.
4
State was also directed to, and did, file a response to Defendant’s motion as
supplemented. 20 Defendant filed his final response on September 4, 2012. 21
16. On January 23, 2013, the Commissioner issued a Report and Recommendation
recommending denial of Defendant’s Rule 61 Motion (the “Commissioner’s Report”).22
In recommending denial, the Commissioner took into consideration all of the arguments
raised in Defendant’s Rule 61 motion, the Affidavits of trial and appellate counsel, the
State’s response and Defendant’s reply thereto. The Commissioner’s Recommendation
fully, thoroughly and exhaustively addressed each of Defendant’s claims and ultimately
concluded that all of Defendant’s claims lacked merit, and the motion should be denied. 23
17. Defendant Matos appealed the Commissioner’s Report. 24
18. On July 26, 2013, upon consideration of the Rule 61 Motion, the Commissioner’s
Report, Defendant’s appeal, and a review of the record, the Superior Court entered an
order adopting the Commissioner’s Report and denying Defendant’s Rule 61 Motion (the
“Denial Order”). 25
19. Defendant Matos appealed the Superior Court’s Denial Order to the Delaware
Supreme Court. 26 By Order dated December 5, 2013, the Delaware Supreme Court
remanded this matter to the Superior Court for the appointment of counsel. 27
20. On March 25, 2014, counsel was appointed.
21. On August 24, 2014, assigned counsel filed a Motion to Withdraw as
Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(2).
20
Superior Court Docket No. 63.
21
Superior Court Docket No. 64.
22
Superior Court Docket No. 68.
23
Superior Court Docket No. 68.
24
Superior Court Docket No. 73.
25
Superior Court Docket No. 75.
26
Superior Court Docket No. 76.
27
Matos v. State, 2013 WL 6459056 (Del.).
5
22. Superior Court Criminal Rule 61(e)(2) provides that:
If 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 ground for relief available to
the movant, counsel may move to withdraw. The motion shall
explain the factual and legal basis for counsel’s opinion and
shall give notice that the movant may file a response to the
motion within 30 days of service of the motion upon the
movant.
23. In the motion to withdraw, Defendant’s Rule 61 counsel represented that, after
undertaking a thorough analysis of the Defendant’s claims, counsel has determined that
the claims are so lacking in merit that counsel cannot ethically advocate any of them. 28
Counsel further represented that, following a thorough review of the record, counsel was
not aware of any other substantial claim for relief available to Defendant Matos.29
Defendant’s Rule 61 counsel represented to the court that there are no potential
meritorious grounds on which to base a Rule 61 motion and has therefore sought to
withdraw as counsel. 30
24. Defendant’s Rule 61 counsel advised Defendant of their motion to withdraw and
advised Defendant that he had the right to file a response thereto within 30 days, if
Defendant desired to do so. 31 Defendant filed a response to counsel’s motion to
withdraw on September 5, 2014, raising one claim in opposition thereto. 32
25. In order to evaluate Defendant’s Rule 61 motion, and to determine whether
Defendant’s Rule 61 counsel’s motion to withdraw should be granted, the court should be
satisfied that Rule 61 counsel made a conscientious examination of the record and the law
28
See, Superior Court Docket No. 90- Defendant’s Rule 61 counsel’s Motion to Withdraw with Supporting
Memorandum of Law.
29
Id.30
Id.31
See, Superior Court Docket No. 89.
32
Superior Court Docket No. 93- Defendant’s Response to Counsel’s Motion to Withdraw.
6
for claims that could arguably support Defendant’s Rule 61 motion. In addition, the court
should conduct its own review of the record in order to determine whether Defendant’s
Rule 61 motion is devoid of any, at least, arguable postconviction claims. 33
DEFENDANT’S RULE 61 MOTION IS WITHOUT MERIT
26. The court finds that Defendant’s claims lack merit for all of the reasons set forth
in the Commissioner’s Report and Denial Order. 34 The Commissioner did a thorough job
in assessing the Rule 61 Motion, the arguments made in the Rule 61 Motion, and the
record of the case. On July 26, 2013, the Superior Court entered an order adopting the
Commissioner’s Report and denying Defendant’s Rule 61 motion after consideration of
the Rule 61 Motion, the Commissioner’s Report, Defendant’s appeal, and a review of the
record. 35
27. The court continues to hold that Defendant’s Rule 61 Motion is denied for the
reasons set forth in the Commissioner’s Report of January 23, 2013 and the Superior
Court’s Denial Order of July 26, 2013. The court adopts by reference the factual
determinations and legal conclusions set forth in the Commissioner’s Report and Denial
Order.
28. Defendant, in response to counsel’s motion to withdraw, raises one claim in
opposition thereto. 36 Defendant continues to contend that as a result of his trial counsel’s
ineffective assistance the charge from Arson First Degree was permitted to be reduced to
Arson Second Degree in violation of his constitutional rights. 37
33
See, for example, Roth v. State of Delaware, 2013 WL 5918509, at *1 (Del. 2013)(discussing standard
to be employed when deciding counsel’s motion to withdraw on a defendant’s direct appeal).
34
Superior Court Docket No. 68.
35
Superior Court Docket No. 75.
36
See, Superior Court Docket No. 93.
37
Id.7
29. This claim, like all the others, has previously been raised, fully considered, and
found to be without merit in the Commissioner’s Report and, thereafter, the Denial Order.
This claim, like all the others, is without merit for the reasons set forth in the
Commissioner’s Report and Denial Order, which are incorporated herein by reference.
30. Briefly, at the prayer conference, Defendant’s trial counsel requested that the
charge of Arson First Degree should be reduced to the lesser included offense of Arson
Second Degree. Defendant’s trial counsel was successful in convincing the State and the
trial court that he was, in fact, correct in his position that the charge should be reduced.
31. The court granted Defendant’s trial counsel’s request and agreed to amend the
charge from arson first degree to arson second degree. The court ruled that after carefully
looking at the charge and dissecting its elements, the State, Defendant’s counsel, and the
court, all ultimately agreed that Defendant could not, as a matter of law, be charged with
arson first degree based on the statutory definition of the term “building.” 38
32. The court’s decision to downgrade the charge from arson first degree to arson
second degree was proper. Superior Court Criminal Rule 7(e) allows a charge to be
amended at any time prior to verdict “if no additional or different offense is charged and
if substantial rights of the defendant are not prejudiced.” Under the circumstances of this
case, the defendant had adequate notice of the underlying facts of the charge, there were
no new elements of the offense added, the amendment was a less serious lesser-included
offense of the original charge, and no additional or different offense was being charged. 39
38
November 5, 2010 Trial Transcript, pg. 2.
39
See, State v. Hester, 2012 WL 5364690, at *4 (Del.Super.)(charge reduced from burglary first degree to
the lesser included charge of burglary second degree was proper when amendment was a less serious
lesser-included offense of the original charge.); Rogers v. State, 2003 WL 22957024, at *2
(Del.)(amendment of indictment to charge defendant with a less serious lesser-included offense of the
original charge was properly permitted).
8
33. As the Delaware Supreme Court made clear in Gates v. State, 40Delaware law is
quite specific. Pursuant to 11 Del. C. § 206 (c), a lesser included offense should be
charged where there is a rational basis in the evidence for a verdict acquitting the
defendant of the offense charged and convicting him of the included offense. 41
34. In the subject case, the court determined that Defendant Matos should be
acquitted of the offense charged, as a matter of law, and only charged with the lesser
included offense. The change from Arson First Degree to the lesser-included charge of
Arson Second Degree did not substantially change the material elements of the crime.
The subject case presents the type of scenario which 11 Del. C. § 206 (c) addresses.
35. A change which increases the penalty and adds material elements, such as an
increase of the charge from Arson Second Degree to Arson First Degree, would not be
permitted by way of amendment. But here, the amendment from Arson First Degree to
the lesser included Arson Second Degree benefitted Defendant. This amendment
reduced Defendant’s exposure (as a habitual offender) on the Arson charge from a Class
C felony, with the possibility of mandatory life, to a Class D felony, without the
possibility of mandatory life. The court’s decision to amend the charge from Arson First
Degree to the lesser included charge of Arson Second Degree was not improper, and
Defendant’s counsel request that the court do so was not deficient in any respect.
36. Defendant still faced the charge of Burglary Second Degree which also carried the
possibility of mandatory life. Defendant’s trial counsel was also successful in
convincing the jury that Defendant should not be found guilty of Burglary Second
Degree. Instead, the jury convicted Defendant of the lesser included offense of Criminal
40
Gates v. State, 424 A.2d 18, 21 (Del. 1980).
41
Gates v. State, 424 A.2d 18, 21 (Del. 1980); 11 Del. C. § 206 (c); Superior Court Criminal Rule 31(c).
9
Trespass. Consequently, defense counsel was successful in eliminating Defendant’s
exposure to a mandatory life sentence under Arson First Degree and Burglary Second
Degree.
37. In order to prevail on an ineffective assistance of counsel claim, Defendant must
meet the two-pronged Strickland test by showing that: (1) counsel performed at a level
“below an objective standard of reasonableness” and that, (2) the deficient performance
prejudiced the defense. 42 The first prong requires the defendant to show by a
preponderance of the evidence that defense counsel was not reasonably competent, while
the second prong requires him to show that there is a reasonable probability that, but for
defense counsel’s unprofessional errors, the outcome of the proceedings would have been
different. 43
38. Mere allegations of ineffectiveness will not suffice; instead, a defendant must
make and substantiate concrete allegations of actual prejudice. 44 There is a strong
presumption that counsel’s conduct fell within a wide range of reasonable professional
assistance. 45
39. Defendant’s claims that his counsel provided ineffective assistance are
undermined by the record and fail to satisfy Strickland. The downgrade in the arson
charge from first degree to second degree was not improper. The conduct of defense
counsel does not appear to be deficient in any respect nor has Defendant shown any
actual prejudice allegedly as a result thereof.
42
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
43
Id.44
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
45
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
10
40. The court has reviewed the record carefully and has concluded that Defendant’s
Rule 61 motion is without merit and devoid of any other substantial claims for relief.
The court is also satisfied that Defendant’s Rule 61 counsel made a conscientious effort
to examine the record and the law and has properly determined that Defendant does not
have a meritorious claim to be raised in his Rule 61 motion.
For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be denied and Defendant’s counsel’s motion to withdraw should be granted.
IT IS SO RECOMMENDED.
__________/s/_________________
Commissioner Lynne M. Parker
oc: Prothonotary
cc: Nicole M. Walker, Esquire
Dade D. Werb, Esquire
Mr. James Matos
11