State v. McCary

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
)
v. ) Case ID No.: 2005003004
)
)
CAMERON MCCARY, )
)
Defendant. )
ORDER
Submitted: May 24, 2022
Decided: July 20, 2022
Upon Consideration of Defendant’s Motion for Postconviction Relief,
DENIED.
Erica Flaschner, Deputy Attorney General, Department of Justice, Wilmington,
Delaware. Attorney for the State.
Cameron McCary. Pro se.
MEDINILLA, J.
AND NOW TO WIT, this 20th day of July, 2022, upon consideration of
Defendant Cameron McCary (“Defendant”)’s Motion for Postconviction Relief, the
sentence imposed upon Defendant, and the record in this case, it appears to the Court
that:
Factual and Procedural History
1. In May of 2020, the Delaware State Police began surveillance of the
Crown Motel on N. Dupont Highway for drug dealing activity.1 It was learned that
Defendant was staying at the motel and was serving Level II probation.2 The Crown
Motel was not Defendant’s residence listed with the Probation Office. 3 Through
continued observations of Defendant, the police observed what they believed to be
drug dealing activities. 4
2. Probation officers obtained permission to conduct an Administrative
Search of Defendant’s motel room, wherein Defendant was present during the
search.5 The probation officers recovered multiple illicit drugs, prescription
medications, drug paraphernalia, $1,715 in cash, and a loaded 9mm handgun. 6
3. On August 24, 2020, a grand jury indicted Defendant for six counts of
Drug Dealing, three counts of Drug Possession, Possession of a Firearm During the
1
State’s Response, D.I. 56, at 1 [hereinafter State’s First Response].
2
Id. at 2.
3
Id.
4
Id.
5
Id. at 3.
6
Id.
2
Commission of a Felony (“PFDCF”), Possession of a Firearm by a Person Prohibited
(“PFBPP”), Possession of Ammunition by a Person Prohibited (“PABPP”), and
Possession of Drug Paraphernalia. 7
4. Defendant filed a Motion to Suppress on October 21, 2020.8 The
suppression hearing was conducted over the span of several days on May 6, June 2,
and June 10 of 2021. 9 The Superior Court reserved decision, eventually denying the
motion on August 13, 2021.10
5. On August 16, 2021, after an appropriate colloquy, Defendant pled
guilty to PFDCF and Drug Dealing Heroin Tier 2. 11 The State entered a nolle
prosequi on the remaining charges and agreed to recommend the minimum
mandatory sentence of three years incarceration. The Court followed the
recommendation and Defendant was sentenced immediately to a minimum
mandatory sentence of three years for the PFDCF charge12 and fifteen years at Level
V, suspended for 18 months at Level III for the Drug Dealing Tier 2 charge.13
7
Indictment, True Bill Filed. No. 67, D.I. 5.
8
See Motion to Suppress Filed, D.I. 7. A reindictment was filed on April 12, 2021, with
amendments for plea purposes. See Reindictment - True Bill Filed. No. 79, D.I. 25.
9
See Suppression Hearing Held Before Judge Adams, D.I. 36; Suppression Hearing Held Before
Judge Adams, D.I. 39.
10
See Motion to Suppress Denied, D.I. 45.
11
See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47.
12
See 11 Del. C. § 1447(A)(b) (“A person convicted under subsection (a) of this section shall
receive a minimum sentence of 3 years at Level V….”).
13
See Sentence: Approved Corrected ASOP Order Signed and Filed, D.I. 49.
3
6. On October 22, 2021, Defendant filed this pro se Motion for
Postconviction Relief claiming ineffective assistance of counsel. 14 He raises five
separate claims that relate to his suppression hearing. First, he contends his
attorney’s failed to argue “illegal arrest.” 15 Second, that his attorney failed to make
a “stalking horse” argument as to the police’s use of probation officers. 16 Third, that
his attorney failed to compel certain probation officers who conducted the “phone
conference” to testify at the hearing. 17 Fourth, that he “was arrested without
probable cause which was pursued by an administrative warrant by probation[,]”18
and lastly, that his attorney failed to file a motion for reconsideration/reargument.19
7. Defense counsel filed an Affidavit of Response on March 8, 2022. 20 A
second Affidavit was filed on May 23, 2022.21 The State responded on March 14,
2022, 22 and filed a supplemental response on May 24, 2022.23 Defendant did not
file a reply. This matter is now ripe for decision.
14
See Motion for Postconviction Relief, D.I. 52 [hereinafter Rule 61 Motion].
15
Id. at 3.
16
Id.
17
Id. at 4.
18
Id.
19
Id. at 3.
20
See Affidavit of Response, D.I. 55 [hereinafter First Affidavit].
21
See Second Affidavit of Response, D.I. 59 [hereinafter Second Affidavit]. The supplement
was filed at the direction of the Court.
22
See State’s Response, D.I. 56 [hereinafter State’s First Response].
23
See State’s Response, D.I. 58 [hereinafter State’s Second Response]. The supplement was
filed at the direction of the Court.
4
Standard of Review
8. To succeed on his ineffective assistance of counsel claims, Defendant
must demonstrate: (1) “that trial counsel’s performance was objectively
unreasonable” 24 and (2) that if counsel was deficient, that there was a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.”25 Mere allegations of ineffectiveness are not enough.26
Counsel “may not be faulted for reasonable miscalculation or lack of foresight or for
failing to prepare for what appear to be remote possibilities.” 27 There is a strong
presumption that a defense counsel’s conduct constituted sound trial strategy28 and
Defendant must make and substantiate concrete allegations that overcome this strong
presumption that counsel’s conduct fell within a wide range of reasonable
professional assistance. 29 Finally, a reviewing court must “avoid peering through
the lens of hindsight.” 30
24
Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668,
694 (1984)).
25
Strickland, 466 U.S. at 694.
26
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
27
State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v.
Richter, 562 U.S. 86, 102–10 (2011)).
28
Strickland, 466 U.S. at 694.
29
See Salih v. State, 962 A.2d 257, 2008 WL 4762323, at *1 (Del. Oct. 31, 2008) (Table); Albury
v. State, 551 A.2d 53, 59 (Del. 1988).
30
State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994).
5
Discussion
9. Superior Court Criminal Rule 61 is the exclusive remedy for persons
“in custody under a sentence of this court seeking to set aside the judgment of
conviction. . . .”31 This Court “must first consider the procedural requirements of
Rule 61 before addressing any substantive issues.” 32 The procedural “bars” of Rule
61 are: timeliness, 33 repetitiveness,34 procedural default, 35 and former adjudication.36
The contentions in a Rule 61 motion must be considered on a “claim-by-claim”
basis. 37
10. Defendant is not procedurally barred as this is Defendant’s first motion
for postconviction relief and was timely filed.38 His claims will therefore be
addressed.
31
Super. Ct. Crim. R. 61(a)(1). See, e.g., Warnick v. State, 158 A.3d 884, 2017 WL 1056130, at
*1 & n.5 (Del. Mar. 30, 2017) (Table) (citing Miller v. State, 157 A.3d 190, 2017 WL 747758(Del. Feb. 24, 2017) (Table)) (denying Rule 35(a) motion attacking sufficiency of evidence in
indictment to which defendant pleaded guilty; defendant’s “challenge [of] his indictment is outside
the scope of Rule 35(a)” and was limited to Rule 61).
32
Bradley v. State, 135 A.3d 748, 756–57 (Del. 2016) (citing Younger, 580 A.2d at 554); see also
Super. Ct. Crim. R. 61(i) (setting forth Rule 61’s procedural bars).
33
Super. Ct. Crim. R. 61(i)(1). See, e.g., Evick v. State, 158 A.3d 878, (2017 WL 1020456, at *1
(Del. Mar. 15, 2017) (Table) (affirming denial of Rule 61 motion as untimely when filed more
than two years after conviction became final).
34
Super. Ct. Crim. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724, at
*1–2 (Del. Jan. 17, 2017) (Table) (denying defendant’s third postconviction relief motion as
repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive
motion.”).
35
Super. Ct. Crim. R. 61(i)(3).
36
Super. Ct. Crim. R. 61(i)(4).
37
State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (citations omitted) (“Rule 61 analysis should
proceed claim-by-claim, as indicated by the language of the rule.”).
38
See Super. Ct. Crim. R. 61(i)(1).
6
11. Our Supreme Court has repeatedly held that ‘“a voluntary guilty plea
constitutes a waiver of any alleged errors or defects [that occurred] prior to the entry
of the plea.”’39 On August 16, 2021, this Court conducted an appropriate colloquy
and determined Defendant entered into the plea knowingly, intelligently and
voluntarily, with an acknowledgement that he was satisfied that his attorney had
done what he could reasonably do for him.40 Accordingly, any defects in the
suppression hearing or corresponding motions were waived when Defendant
knowingly, intelligently, and voluntarily pled guilty.41 Even if the Court considered
the five grounds asserted, Defendant fails to establish a basis for relief.
12. First, as to the allegation that his attorney failed to argue that Defendant
was illegally arrested, Defendant is incorrect. Counsel did, in fact, argue that
Defendant was arrested and not just stopped. 42 It is clear in Defendant’s Reply to
his Motion to Suppress that defense counsel argued that Defendant was arrested, not
stopped, prior to the search of his hotel room, which resulted in an illegal seizure
39
Campbell v. State, 274 A.3d 286, 2022 WL 678001, at *2 (Del. Mar. 8, 2022) (Table) (quoting
Benner v. State, 2007 WL 4215005, at *1 (Del. Nov. 30, 2017)); see also Miller v. State, 840
A.2d 1229, 1232 (Del. 2003) (“Finally, to the extent Miller bases his claims on alleged errors or
defects preceding the entry of his plea, his voluntary guilty plea constitutes a waiver of any such
claims.”) (citing Downer v. State, 543 A.2d 309, 312–13 (Del. 1988)).
40
See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47 (Plea Colloquy conducted).
41
See Cooper v. State, 954 A.2d 909, 2008 WL 2410404, at *1 (Del. June 16, 2018) (Table)
(declining to consider ineffective assistance of counsel claims raised in movant’s motion for
postconviction relief because they were “not presented to the Superior Court in the first
instance.”).
42
See First Affidavit, at 1; State’s First Response, at 4.
7
and the recovered evidence should be suppressed.43 Accordingly, Defendant’s claim
that his attorney failed to make this argument is patently wrong.
13. Defendant’s second allegation that counsel was ineffective for failing
to raise the “stalking horse” argument at the suppression hearing is equally without
merit. The Court accepts defense counsel’s explanation that the argument was not
raised because “[he] did not believe this was a viable basis for relief.” 44 There is a
strong presumption that a defense counsel’s strategy is reasonable45 and mere
allegations of defective representation are insufficient to overcome this
presumption. 46 To second guess such strategies is improper. 47 Defendant fails to
establish how his attorney’s decision fell below an objective standard of
reasonableness or that such an argument would have resulted in a different
outcome.48 Therefore, this argument fails.
14. Defendant’s third assertion is that his attorney was ineffective where he
failed to file a motion for reargument.49 The Court accepts Defense counsel’s
explanation that such a motion was not filed because “[he] did not believe that it
43
See Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I. 17, at 1–3.
44
First Affidavit, at 2.
45
Strickland, 466 U.S. at 694.
46
See Younger, 580 A.2d at 556.
47
Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.”).
48
See id. at 694.
49
Rule 61 Motion, at 3.
8
would impact the ruling, or even that it was an appropriate basis for a motion for
reargument.”50 He is correct.
15. Under Delaware Superior Court Civil Rule 59(e)51 a motion for
reargument will be granted if the Court has “overlooked a controlling precedent or
legal principles, or the court has misapprehended the law or facts such as would have
changed the outcome of the underlying decision.”52 Further, “[a] motion for
reargument is not a device for raising new arguments.”53 The moving party has the
burden of demonstrating “newly discovered evidence, a change of law, or manifest
injustice.” 54 There was no basis for filing a motion for reargument here. Moreover,
Defendant has failed to establish that had his attorney filed for reargument, the
Motion to Suppress would have been granted.55 Therefore, this argument fails.
16. Defendant’s fourth claim is that he was arrested without probable cause
and his arrest is therefore illegal.56 Not only does he fail to articulate the basis of an
ineffective assistance of counsel claim, the record establishes that his counsel did
50
First Affidavit, at 2.
51
Under Super. Ct. Crim. R. 57(d), where no rule is provided “the court shall regulate its practice
in accordance with the applicable Superior Court civil rule or in any lawful manner not
inconsistent with these rules or the rules of the Supreme Court.”
52
See, e.g., Tibco Software Inc., v. Nthrive Revenue Systems, LLC, 2020 WL 86829, at *1 (Del.
Super. Jan. 6, 2020) (quoting Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co.,
2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003)).
53
Bd. of Managers of Del. Criminal Justice Info. Sys., 2003 WL 1579170, at *1.
54
E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995).
55
See Strickland, 466 U.S. at 694.
56
Rule 61 Motion, at 4.
9
raise this issue at the suppression hearing.57 The issue of lack of probable cause was
raised in both the Motion to Suppress 58 and the Reply.59 This argument was formerly
adjudicated and is thus barred.60
17. Lastly, Defendant claims his attorney was ineffective where he failed
to compel the appearance of “the actual probation officers who conducted the phone
conference” [procedurally required for their administrative searches]61 and that these
“officers were required to testify.”62 He is wrong.
18. This Court agrees with both defense counsel and the State that there is
no such requirement under Probation and Parole Procedure 7.19. Moreover, this
Court accepts defense counsel’s explanation that he was aware the officer was not
going to be present at the suppression hearing and “made a strategic decision to not
subpoena him . . . because [he] believed it would be harmful to [Defendant’s]
argument . . . by providing the State an opportunity to ‘explain’ inconsistencies . . .
.” 63 As noted above, there is a strong presumption that a defense counsel’s strategy
is reasonable 64 and mere allegations of defective representation are insufficient to
57
See Second Affidavit, at 1; State’s Second Response, at 2.
58
See Motion to Suppress, D.I. 7, at 4–8.
59
See generally Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I.
17.
60
See Super. Ct. Crim. R. 61(i)(4).
61
See Probation and Parole Procedure, 7.19.
62
Rule 61 Motion, at 4.
63
Second Affidavit, at 2.
64
Strickland, 466 U.S. at 694.
10
overcome this presumption.65 Defendant has also failed to establish that such a
decision was unreasonable or that the outcome would have been different had the
officer testified at the suppression hearing. 66 Therefore, this claim fails.
Conclusion
19. For the foregoing reasons, the Court finds that Defendant fails to meet
his burden to demonstrate objective unreasonableness and prejudice as required
under Strickland. Defendant’s Motion for Postconviction Relief is DENIED.
/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary
cc: Defendant
Elliot M. Margules, Esquire
65
See Younger, 580 A.2d at 556.
66
See Strickland, 466 U.S. at 694.
11