State v. Brown

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
v. ) ID No. 2108008637
)
DEMETRIUS BROWN, )
)
Defendant. )
Submitted: March 22, 2024
Decided: June 27, 2024
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
William H. Leonard, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Gregory M. Johnson, Esquire, Wilmington, Delaware, Counsel for Defendant.
Demetrius Brown, Philadelphia, Pennsylvania, pro se.
SALOMONE, Commissioner
This 27th day of June 2024, upon consideration of the Motion for
Postconviction Relief filed by Defendant Demetrius Brown (“Brown” or the
“Defendant”), it appears to the Court as follows:
FACTS AND PROCEDURAL HISTORY
On August 17, 2021, officers from the Wilmington Police Department
responded to the area of West 6th Street and North Harrison Street after hearing
multiple gunshots being fired in the area.1 A victim at the scene identified Brown as
the person who had shot at him with a black handgun.2 A second victim at the scene,
who shares a child with Brown, reported that prior to the shooting she saw Brown at
the front window of her residence and then pointed the handgun at her while she was
inside.3 Police obtained video surveillance from the surrounding area.4 In one of
the videos the first victim can be seen and heard yelling down the street, but no video
showed the actual shooter.5 That same victim showed police a text message from
Brown after the shooting in which Brown inquires “Bro, you ok?”6 Police later
1
These general facts are taken from the Affidavit of Probable Cause, dated August 17, 2021, State
v. Demetrius Brown, Delaware Superior Court Criminal Docket, ID No. 2108008637 (hereinafter,
“D.I. __”) 1.
2
Id.
3
Id.; see also Transcript of Preliminary Hearing, dated September 1, 2021, State v. Demetrius
Brown, ID No. 2108008637 (hereinafter, “D.I. 13”).
4
D.I. 13 at 16-17.
5
D.I. 45.
6
Id.
1
recovered a firearm that ballistically matched the shell casings at the scene at the
home of one of Brown’s relatives.7
On October 25, 2021, a grand jury indicted Brown for the following offenses:
(i) Aggravated Menacing, (ii) Reckless Endangering First Degree, (iii) two counts
of Possession of a Firearm During the Commission of a Felony, (iv) Possession of a
Firearm by a Person Prohibited, (v) Carrying a Concealed Deadly Weapon, and (vi)
two counts of Criminal Mischief in connection with the shooting that occurred on
August 17, 2021.8 On August 3, 2022, Brown plead guilty to three charges, which
included Aggravated Menacing, Reckless Endangering First Degree, and Carrying a
Concealed Deadly Weapon.9 Prior to entering the plea, Brown signed the plea
agreement, a Truth-in-Sentencing Guilty Plea Form and an Immediate Sentencing
Form.10 As part of the plea agreement, the State agreed to (i) recommend a total
sentence of three (3) years at Level V followed by decreasing levels of probation and
(ii) enter a nolle prosequi on the remaining charges.11 The Court followed that
recommendation when sentencing the Defendant.12
7
Id.
8
D.I. 10.
9
D.I. 29.
10
D.I. 45 (Exhibit A).
11
Plea Agreement, dated August 1, 2022, State v. Demetrius Brown, ID No. 2108008637.
12
Transcript of Plea Hearing, dated August 3, 2022, State v. Demetrius Brown, ID No. 2108008637
(hereinafter, “D.I. 58”).
2
On August 24, 2022, Brown filed a Motion for Sentence
Reduction/Modification in which he argued, among other things, that he did not have
two prior violent felony convictions at the time he pled guilty.13 On October 24,
2022, the State responded to Brown’s Motion for Sentence Reduction/Modification
on the issue of his criminal history.14 On November 7, 2022, Brown filed a Reply to
the State’s Response.15 On December 6, 2022, the Court found that Brown had two
prior violent felonies at the time he committed the offenses to which he pled guilty
and denied his Motion for Sentence Reduction/Modification.16
Brown filed a subsequent Motion for Modification of Sentence on May 8,
2023, in which he sought to have the last six months of his Level V sentence
modified to six months at Level IV.17 Brown contended that a Level IV work release
program would better prepare him to reintegrate into society upon his release.18 He
further requested that the Court order him to complete the Road to Recover program
so that he would be better prepared to cope with his previous drug addiction when
released.19 On December 1, 2023, the Court granted his Motion for Modification, in
13
D.I. at 30.
14
D.I. at 34.
15
D.I. at 38.
16
D.I. at 40.
17
D.I. at 46.
18
Id.
19
Id.
3
part, by ordering Defendant to complete the Road to Recover program while at Level
V.20
Brown did not appeal his sentence to the Delaware Supreme Court.
MOTION FOR POSTCONVICTION RELIEF
a. Brown’s Contentions.
On October 27, 2022, the Defendant filed a pro se Motion for Postconviction
Relief (the “Initial Motion”),21 which he later amended on January 20, 2023 (the
“Amended Motion,” and together with the Initial Motion, the “Motion for
Postconviction Relief”).22 Through both filings, Brown raises a total of seven
grounds for postconviction relief, six of which are claims of ineffective assistance
of counsel and one of which relates to the legality of his sentence. The claims for
postconviction relief asserted by the Defendant are fairly summarized as follows:
Ground One: Counsel never viewed the video surveillance evidence with
the Defendant or viewed it at all;
Ground Two: Counsel sent a private investigator to view the video
surveillance evidence with the Defendant on two occasions, but the video which was
shown the second time was different than the first;
Ground Three: Due to counsel switching the video surveillance evidence
and/or withholding video surveillance evidence, the Defendant was coerced into
accepting the guilty plea when counsel stated that if the Defendant did not take the
plea that he “would do life in jail.”;
20
D.I. at 52. Brown filed an additional motion regarding modification of his sentence which the
Court denied on February 19, 2024.
21
D.I. at 36.
22
D.I. at 41.
4
Ground Four: Brown asserts that he was illegally sentenced to three years
at Level V for his conviction for Carrying a Concealed Deadly Weapon. 23 Brown
contends that the Truth-In-Sentencing guidelines for a conviction for Carrying a
Concealed Deadly Weapon is 0 to 2 years at Level V, but that the State improperly
argued that he had two prior violent felony convictions;
Ground Five: Counsel was ineffective for failing to watch the video
surveillance evidence personally with the Defendant so that the Defendant could
discuss the inconsistencies between the video and the State’s case directly with
counsel;
Ground Six: Inconsistencies between the written police narrative and the
time stamps on the video surveillance evidence were not given sufficient exculpatory
weight by defense counsel; and
Ground Seven: Counsel coerced the Defendant to take the guilty plea and
assured him that he would be sentenced to two years of Level V time for his
conviction for Carrying a Concealed Deadly Weapon because counsel and the judge
were “just on vacation together and he has favor with her.”
Each of these claims are discussed more fully below.
b. Rule 61 and Procedural Bars to Relief
Superior Court Criminal Rule 61 (“Rule 61”) governs the procedures by
which an incarcerated individual may seek to have his conviction set aside on the
ground that the court lacked jurisdiction or any other ground that is a sufficient
factual and legal basis for a collateral attack upon the conviction.24 That is, it is a
means by which the court may correct Constitutional infirmities in a conviction or
23
D.I. at 36.
24
Super. Ct. Crim. R. 61(a)(1).
5
sentence.25 “Rule 61 is intended to correct errors in the trial process, not allow
defendants unlimited opportunities to relitigate their convictions.”26
Given that intent, before considering the merits of any claims for
postconviction relief, the Court must first determine whether there are any
procedural bars to the postconviction motion.27 Rule 61(i) establishes four
procedural bars to postconviction relief.28 Rule 61(i)(1) prohibits a motion for
postconviction relief from being filed “more than one year after the judgement of
conviction is final or, if it asserts a retroactively applicable right that is newly
recognized after the judgment of conviction is final, more than one year after the
right is first recognized by the Supreme Court of Delaware or by the United States
Supreme Court.”29 Defendant was sentenced by the Court on August 3, 2022 and
filed his Initial Motion on October 27, 2022 and his Amended Motion on January
20, 2023. Therefore, Defendant’s Motion for Postconviction Relief was timely filed.
Rule 61(i)(2) bars successive motions for postconviction relief unless certain
conditions are met.30 This is the Defendant’s first Motion for Postconviction Relief
so the procedural bar set forth in Rule 61(i)(2) is not applicable.
25
Harris v. State, 410 A.2d 500 (Del. 1970).
26
Ploof v. State, 75 A.3d 811,820 (Del. 2013).
27
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
28
Super. Ct. Crim. R. 61(i)(1)-(4).
29
Super. Ct. Crim. R. 61(i)(1).
30
Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant
is able to “pled with particularity” that (i) “new evidence exists that creates a strong inference that
the movant is actually innocent in fact of the acts underlying the charges of which he was
6
Rule 61(i)(3) and (4) provide that any ground for relief that was not previously
raised is deemed waived, and any claims that were formerly adjudicated, whether in
the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter
barred.31 The foregoing bars to relief do not apply to a claim that the court lacked
jurisdiction or to a claim that satisfies the pleading requirements of Rule 61(d)(2).32
Brown previously raised his claim of an illegal sentence as set forth in Ground
Four with this Court. The Court rejected that claim in denying his Motion for
Sentence Reduction/Modification on December 6, 2022. As such, Ground Four was
previously adjudicated and Rule 61(i)(3) precludes Brown from raising the claim
again in this Motion for Postconviction Relief. As such, Ground Four should be
summarily dismissed.
The remaining six claims for ineffective assistance of counsel were not
previously raised by the Defendant and are not subject to default because they cannot
be asserted in proceedings leading to judgment of conviction nor raised on direct
appeal.33 Ineffective assistance of counsel claims are properly brought in a motion
for postconviction relief.
convicted” or (ii) “a new rule of constitutional law, made retroactive to cases on collateral review
by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case
and renders the conviction or death sentence invalid.” Super. Ct. Crim. R. 61(d)(2).
31
Super. Ct. Crim. R. 61(i)(3) and (4).
32
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
33
State v. Jackson, 2023 WL 4104290, at *4 (Del. Super. Ct.)
7
c. Standard of Review Governing Ineffective Assistance of Counsel
Claims.
To succeed on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged test set forth in Strickland34 by showing that: (1) counsel
performed at a level ‘below an objective standard of reasonableness’35 and that, (2)
the deficient performance prejudiced the defense.36 Failure to prove either prong
will render a claim insufficient.37
Under the first prong, judicial scrutiny is highly deferential. Courts must
ignore the distorting effects of hindsight and proceed with a strong presumption that
counsel’s conduct was reasonable.38 The Strickland Court explained that when
deciding an actual ineffectiveness claim, the court must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the
time of counsel’s conduct.39
Under the second prong, in order to establish prejudice, the movant must show
that “there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
34
Strickland v. Washington, 446 U.S. 668 (1984).
35
Id. at 688.
36
Id. at 694.
37
Id. at 688.
38
Id. at 689.
39
Id. at 690.
8
a probability sufficient to undermine the confidence in the outcome.” 40 In other
words, not every error that conceivably could have influenced the outcome
undermines the reliability of the result of the proceeding.41 The court must consider
the totality of the evidence and must ask if the movant has met the burden of showing
that the decision reached would reasonably likely have been different absent the
errors.42 “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process
that the trial cannot be relied on as having produced a just result.”43
In the context of a plea challenge, it is not sufficient for the defendant to claim
simply that his counsel was deficient. The defendant must also establish that
counsel’s actions were so prejudicial that there was a reasonable probability that, but
for counsel’s deficiencies, the defendant would not have taken a plea but would have
insisted on going to trial.44 Thus, the Court’s analysis often begins with the second
prong because it is not necessary “to examine whether an attorney performed
deficiently if the deficiency did not prejudice the defendant.”45
40
Id. at 694.
41
Id. at 693.
42
Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strickland v. Washington, 466 U.S. 668, 695-
696 (1984).
43
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 686).
44
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hickman v. State, 1994 WL 590495(Del.) (applying Strickland to guilty pleas).
45
Ploof v. State, 75 A.3d 811, 825 (Del. 2013).
9
The burden of proving ineffective assistance of counsel is on the defendant.46
Mere allegations of ineffectiveness will not suffice; instead, a defendant must make
and substantiate concrete allegations of actual prejudice.47 With this framework in
mind, the Court turns to Brown’s claims of ineffective assistance of counsel.
1. Video Surveillance Claims.
Grounds One, Two, Five and Six of the Motion for Postconviction Relief are
allegations of ineffective assistance of counsel relating to the way defense counsel
viewed, handled, and assessed the video surveillance evidence in this case. Brown
asserts that defense counsel failed to review any of the video surveillance evidence
in the case and, even if he had, counsel’s failure to review the video evidence with
Brown personally constituted ineffective assistance of counsel.48 Instead, defense
counsel sent a private investigator to review the video surveillance evidence with the
Defendant on two separate occasions.49 Brown asserts that the video surveillance
evidence demonstrates that he was not the shooter in the August 17, 2021 incident
and that in failing to review the video with him, Brown was unable to point out
inconsistencies between the video evidence and the State’s case directly to defense
counsel.50 In Ground Six, Brown discusses in some detail what he views as
46
Oliver v. State, 2001 WL 1751246 (Del.).
47
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
48
D.I. 36.
49
Id.50
D.I. 41.
10
inconsistencies between the narrative prepared by the investigating officer and
certain time stamps on the video surveillance evidence, inconsistencies which he
brought to the attention of his counsel but asserts his counsel ignored.51 Brown
further claims that defense counsel was pessimistic regarding the success the
Defendant would have if he were to go to trial on the basis of the purported
inconsistencies in the video evidence.52
Brown also asserts that the video the private investigator brought for
Defendant’s review on the first occasion was different than the video he brought with
him on the second occasion.53 Specifically, Brown alleges that at the initial viewing
of the video with the private investigator the alleged victim can be seen reaching into
his waistband, grabbing a firearm, running towards the Defendant and then
discharging the firearm.54 Brown alleges that the foregoing video evidence was
absent at the second viewing of the video.55 He further claims that the private
investigator acknowledged the differences and stated, “Demetrius, I think you need
to go to trial” and “I’m not coming back over here to show any more videos.”56
In his affidavit, defense counsel denies the allegation that he failed to review
the video surveillance evidence and states that he reviewed it multiple times over the
51
D.I. 41.
52
D.I. 36.
53
Id.54
Id.55
Id.56
Id.11
course of several months.57 Defense counsel further asserts that he discussed the
contents of the video surveillance evidence at length with the Defendant in person,
over the phone and by Zoom.58 Defense counsel concedes that he made
arrangements for the Defendant to review the video with a private investigator on
two occasions but states that the video evidence shown to the Defendant was the
same both times.59 Defense counsel further states that he discussed the purported
inconsistencies between the investigative narrative and the time stamps on the video
with the Defendant on several occasions and explained to Brown that, in his
experience throughout many years of practice, time stamps on most videos do not
match up exactly to real time.60 Defense counsel further asserts there was no
evidence on the video suggesting that the alleged victim was the actual shooter and
notes that the physical and ballistic evidence was inconsistent with the theory that
the alleged victim was the shooter.61
Based upon their contradictory statements, it is abundantly clear to the Court
that defense counsel and Brown viewed the video surveillance evidence quite
differently. Brown viewed the video surveillance evidence as being exculpatory
57
D.I. 43.
58
Id.59
Id.60
Id.61
Id. Counsel also asserts that the statements allegedly made to the Defendant by the private
investigator were born of frustration “because the investigator felt that Defendant was being
combative and unreasonable with him and not listening to what was being said to him. No one
thought that Defendant should have gone to trial in this case.”
12
whereas counsel did not. At core, the two differed on the strength of Brown’s case
considering the totality of the evidence.
The fact that defense counsel viewed the evidence differently than the
Defendant, does not, however, automatically make counsel’s assistance ineffective
in advising Brown. For Brown to succeed on his ineffective assistance of counsel
claims relating to the video surveillance evidence, he must demonstrate that
counsel’s handling and assessment of the evidence prejudiced his defense. For the
reasons that follow, the Court finds that Brown has not demonstrated such prejudice.
In order to access whether the Defendant was prejudiced by counsel’s actions,
the Court must consider whether Brown would “have received a more favorable
verdict relative to the plea into which [he] entered.”62 After a thorough review of
the record, the Court cannot conclude that there is a reasonable probability that
Brown would have received a more favorable outcome than the plea agreement had
he gone to trial on the evidence.
Brown was facing charges for (i) Aggravated Menacing, (ii) Reckless
Endangering First Degree, (iii) two counts of Possession of a Firearm During the
Commission of a Felony, (iv) Possession of a Firearm by a Person Prohibited, (v)
Carrying a Concealed Deadly Weapon, and (vi) two counts of Criminal Mischief.
The State had video evidence showing Brown in the area of the shooting at the time
62
State v. Jackson, 2023 WL 4104290, at *6 (Del. Super.).
13
it occurred. The State also possessed ballistic evidence which matched the firearm
used at the scene of the crime to a firearm recovered at the residence of one of the
Defendant’s family members. The record does not suggest nor does the Defendant
argue that any of the evidence should have been suppressed or would otherwise have
been inadmissible at trial. While the State faced challenges with witness cooperation
in this case, there is nonetheless a reasonable probability that the Defendant would
have been convicted of at least one of the violent felonies for which he was
indicted.63 If convicted at trial, Brown faced a potential sentence of 20 years of
minimum mandatory time and as much as 103 years if convicted of all charges. 64
And, if Brown were determined to be a habitual offender by the Court, he faced a
range of 83 years to up to life in prison if convicted of all charges.65 As the Court’s
decision on the Defendant’s Motion for Sentence Reduction/Modification showed,
Brown’s prior felony convictions and thus his person prohibited status were not in
question.
Based on his assessment of the weight of the evidence against the Defendant,
defense counsel concluded that the most prudent defense strategy was to attempt to
reduce the significant amount of jail time Defendant faced if convicted at trial by
negotiating a plea agreement. Such a strategy was “objectively reasonable” under
63
See D.I. 45 at 3; D.I. 58 at 21.
64
D.I. 43
65
Id.14
the circumstances given the significant number of indicted felony charges the
Defendant was facing and the strength of the State’s evidence. “If an attorney makes
a strategic choice ‘after thorough investigation of law and facts relevant to plausible
options’ that decision is ‘virtually unchallengeable’ and strategic choices made after
less than complete investigation are reasonable precisely to the extent that
reasonable professional judgments support the limitations on investigation.”66
Brown ultimately pled guilty to Aggravated Menacing, Reckless Endangering
First Degree and Carrying a Concealed Deadly Weapon and was sentenced to 3 years
of Level V time, which is a substantially better result than the potential life
imprisonment that Defendant could have faced had he proceeded to trial and been
unsuccessful. As such, Brown has failed to demonstrate that counsel’s assessment
and handling of the video surveillance evidence prejudiced his defense.
Accordingly, the Court finds that his claims of ineffective assistance of counsel with
respect to the video surveillance evidence are without merit.
2. Coerced Guilty Plea; Unfulfilled Plea Agreement
Grounds Three and Seven of the Motion for Postconviction Relief set forth
allegations of ineffective assistance of counsel relating to the terms of the plea offer
and Brown’s acceptance thereof. In Ground Three, Brown claims that defense
66
Ploof v. State, 75 A.3d 840, 852 (Del. Super. 2013) (citing Strickland v. Washington, 466 U.S.
668, 690-91 (1984).
15
counsel “switched” the video surveillance evidence and coerced him into taking the
guilty plea by telling him that if he did not, he “would do life in jail.” 67 In Ground
Seven, Brown alleges that defense counsel assured him that he would be sentenced
to two years at Level V for pleading guilty to the charge of Carrying a Concealed
Deadly Weapon because defense counsel and the judge were “just on vacation
together and he has favor with her.”68
Defense counsel denies that he switched and/or withheld video evidence from
the Defendant but admits that he advised Brown on many occasions of the potential
sentence he might face if he were convicted at trial.69 With respect to Ground 7,
counsel denies the assertion made by Brown regarding counsel stating he was in
favor with Judge Adams and states that he never promised or suggested that the
Defendant would be sentenced to less than the agreed upon recommendation of three
years of Level V time.70 Counsel notes, however, that Brown was concerned that
the Court might sentence him to more time than that agreed upon by the parties. 71
In an effort to assuage those concerns, counsel states that he advised Brown that he
had a platonic relationship with Judge Brennan (who had been originally scheduled
to accept the Defendant’s plea) for a number of years and had vacationed with her.72
67
D.I. 36.
68
Id.69
D.I. 43.
70
Id.71
Id.72
Id.16
Counsel states that he shared that information regarding his relationship with Judge
Brennan to try to assure Brown that he knew her well, that she was reasonable and
unlikely to depart from the agreed upon recommendation.73
As a threshold matter, it must be noted that Brown has not provided the Court
with any actual evidence that defense counsel “switched” or otherwise altered or
manipulated the video evidence to his detriment. Nor has he presented a rationale
as to why counsel would do so. The Court will not heed such bold-faced assertions.
Brown’s contention that defense counsel coerced him into taking the plea is
equally unavailing. The statement by defense counsel regarding the likelihood the
Defendant “would do life in jail” if convicted of all or only a portion of the charges
he was facing accurately reflected Defendant’s circumstances. Given the accuracy
of the statement, it cannot be reasonably construed as tantamount to coercion.
Rather, it shows that counsel was providing competent legal representation. As this
Court has held, “it is entirely appropriate for Defendant’s counsel to explain that if
the offered plea was rejected, Defendant was unlikely to be successful at trial and
could receive a possible life sentence.”74
73
Id.74
Skyes v. State, 2012 1413958, at *5.
17
Moreover, Defendant’s own words in his plea colloquy as well as his executed
Plea Agreement and Truth-in-Sentencing Guilty Plea Form bely his allegations as
set forth in Grounds Three and Seven of his Motion for Postconviction Relief. “[A]
defendant's statements to the Superior Court during the guilty plea colloquy are
presumed to be truthful.”75 Where the defendant has signed his Truth-in-Sentencing
Guilty Plea Forms and has answered at the plea colloquy that he understands the
effects of the plea, the defendant must show by clear and convincing evidence that
he did not sign those forms knowingly and voluntarily.76
During the guilty plea colloquy, the Defendant gave sworn testimony
indicating, inter alia, that he (i) freely and voluntarily decided to plead guilty to the
charges listed in the plea agreement, (ii) had not been threatened or forced to plead
guilty by his counsel, the State or anyone else, and (iii) had not been promised
anything not stated in his written plea agreement or otherwise promised what his
sentence would be.77 After some initial hesitation regarding whether he was satisfied
with his counsel’s representation, the Defendant affirmed that he was knowingly
accepting his plea because he understood the risks of proceeding to trial and he was,
75
Scarborough v. State, 938 A.2d 644, 650 (Del. 2007).
76
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
77
D.I. 58 at 7-9. Brown likewise testified that he understood that the plea agreement was only a
recommendation and that the Court was not bound by its terms. Id. at 17.
18
in fact, guilty of the charges to which he pled.78 Based on Brown’s sworn testimony,
the Court found his plea to be knowing, intelligent and voluntary.79
Absent clear and convincing evidence to the contrary, Brown is bound by his
representations during the guilty plea colloquy and the Truth-in-Sentencing Guilty
Plea Form.80 Brown provides no such evidence to the contrary. He does not assert
the plea colloquy was defective. Nor does he contend that his answers were
untruthful. For these reasons, the Court cannot find defense counsel’s alleged
statements to be so prejudicial that there was a reasonable probability that, but for
counsel’s alleged deficiency, the Defendant would not have taken the plea.
78
Id. at 10-12, 18-19. During the plea colloquy, Defendant stated “I apologize. Like I said, I’m
knowingly accepting this plea today. I can’t gamble with my life and face 85 years . . .” Id. at 12.
79
Id. at 20.
80
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
19
CONCLUSION
After a thorough review of the record, the Court concludes that the claims set
forth in the Motion for Postconviction Relief are either procedurally barred or
without merit. Ground 4 asserting an illegal sentence is procedurally barred as it
was previously raised and adjudicated by this Court. The remaining six claims for
ineffective assistance of counsel likewise fail on the merits and are not supported by
the record. For all the foregoing reasons, the Defendant’s Motion for Postconviction
relief should be DENIED.
IT IS SO RECOMMENDED.
/s/ Janine M. Salomone
The Honorable Janine M. Salomone
20