State v. Pernot

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
ID No. 1703001397
In and for Kent County
Vv.
CHARLES W. PERNOT,
RVK17-03-0439-01 Drug Dealing (F)
Nee Nee eee’ ee” ee” ee”
Defendant.
COMMISSIONER’S REPORT AND RECOMMENDATION
Upon Defendant’s Motion For Postconviction Relief
Pursuant to Superior Court Criminal Rule 61
FREUD, Commissioner
August 23, 2019
On September 5, 2017, defendant Charles W. Pernot (“Pernot”) pled guilty to
one count of Drug Dealing, 16 Del. C. § 4752(1). In exchange for his plea, the State
entered nolle prosequis on the remaining charges of one count of Tier 5 Possession,
one count of Conspiracy in the Second Degree and one count of Possession of Drug
Paraphernalia and recommended probation. Following the plea, the Court sentenced
Pernot, pursuant to the Plea Agreement, to eight years at Level V incarceration,
suspended for six months Level IV work release followed by one year at Level III
probation with a condition for substance abuse evaluation and monitoring by the
Treatment Access Service Center ("TASC”).
On February 17, 2018, Pernot was brought before the Court for a violation of
probation hearing (“VOP”). Pernot admitted to violating his probation by possessing
State v. Pernot
ID No. 1703001397
August 23, 2019
contraband. Consequently, the Court found Pernot to be in violation of his probation
and re-sentenced him to seven years and eleven months at Level V time which had
previously been suspended, and suspended that time after completion of the
Transitions Sex Offender program and Level V Key program followed by one year
at Level IV Crest and one year of Level III Crest Aftercare.
Pernot did not appeal his original conviction and sentence to the Delaware
Supreme Court. Pernot did however appeal his conviction and sentencing, pro se,
concerning the VOP. In his appeal he raised the following grounds for relief as noted
by the Delaware Supreme Court in its Order denying Pernot’s appeal:
(4) in his opening brief on appeal, Pernot argues that: (i)
the Superior Court erred in denying his request for a
transcript of the VOP hearing at State expense; (ii) his
counsel at the VOP hearing was ineffective; (iii) the TASC
worker falsely stated at the VOP hearing that he admitted
to using cocaine in December 2017 and that he had not
dealt with his substance abuse issues; and (iii) (sic) the
probation officer had no basis to recommend that he
complete the Transitions program, which was longer than
indicated at the VOP hearing. Pernot’s claims regarding
the transcript are moot because this Court ordered
preparation of the transcript. Pernot received a copy of the
transcript and filed a supplemental opening brief. In his
supplemental opening brief, Pernot argues that the
transcript supports his claims. He is mistaken.’
' Pernot v. State, 201 A.3d 1197 (Table), 2019 WL 193205, at *1. (Del.).
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State v. Pernot
ID No. 1703001397
August 23, 2019
The Court found no merit in Pernot’s arguments and denied his appeal.’ Pernot filed
the pending Motion for Postconviction Relief pursuant to Superior Court Criminal
Rule 61.
In his motion Pernot raises two grounds for relief. First, Pernot alleges his
counsel gave him false information concerning the Transitions Sex Offender program.
Second, he claims the TASC worker gave the Court bad information.
Under Delaware law the Court must consider the procedural requirements of
Superior Court Criminal Rule 61(i) before addressing the merits of any
postconviction relief claim. Pernot failed to raise his first ground for relief at the
hearing on the violation of probation and at his sentencing. He attempted to raise this
claim on direct appeal to the Delaware Supreme Court. However the Court does not
review ineffective assistance claims on direct appeal. Pernot has made little attempt
to demonstrate exactly how his attorney was ineffective nor has he made any effort
to show how he was prejudiced as a result of the allegations. Pernot makes only a
cursory allegation of ineffective assistance of counsel but fails to say what more
counsel could have done given that the violation of probation was not contested.
Furthermore there is no right to counsel at a violation of probation hearing absent a
showing of a substantial reason against the revocation, which Pernot has failed to
allege.* This claim is therefore clearly procedurally barred by Rule 61(i)(3).
* Pernot, 2019 WL 193205, at *2.
> State v. Jones, 560 A.2d 1056 (Del. 1989)(quoting Gagnon v. Scarpelli, 411 U.S. 778(1973)); see also State v. Hall, 2004 WL 2827960 (Del. Super.).
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State v. Pernot
ID No. 1703001397
August 23, 2019
Pernot’s second ground for relief concerning TASC and his subsequent
sentence is essentially a restatement of his arguments he made on appeal to the
Delaware Supreme Court which were denied by the Court. Clearly his claim is
simply a restatement of the arguments he previously raised. Rule 61(i)(4) bars any
ground for relief that was formerly adjudicated unless reconsideration of the claim is
warranted in the interest of justice.* Pernot raised this claim before and the Delaware
Supreme Court found it meritless. Pernot has made no attempt to argue why
reconsideration of this claim is warranted in the interest of justice. The interest of
justice exception of Rule 61(i)(4) has been narrowly defined to require that the
movant show that the “subsequent legal developments have revealed that the trial
court lacked the authority to convict or punish” him.° Pernot has made no attempt to
demonstrate why his claims should be revisited. This Court is not required to
reconsider Pernot’s claims simply because they are “refined or restated.”® For this
reason, this ground for relief should be dismissed as previously adjudicated under
Rule 61(i)(4). To the extent that any of the allegations Pernot makes in his second
ground for relief were not raised on direct appeal they are barred by Rule 61(i)(3) for
failure to demonstrate cause and prejudice.
In conclusion, I recommend the Court deny Pernot’s motion as procedurally
* Super. Ct. Crim. R. 61(i)(4).
> Maxion y. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
736, 746 (Del. 1990)).
: Riley v. State, 585 A.2d 719, 721 (Del. 1990).
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State v. Pernot
ID No. 1703001397
August 23, 2019
barred and meritless.
AMF/dsc
oc: Prothonotary
/s/ Andrea M. Freud
Commissioner