Opinion
ID No. 0403022047.
Submitted: October 23, 2006.
Decided: November 20, 2006.
Upon Defendant's Motion for Postconviction Relief. DENIED.
Brian J. Robertson, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Lafayette E. Miller, Smyrna, Delaware, pro se.
ORDER
This 20th day of November, 2006, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
A. Procedural History
1. Lafayette ("Defendant") was arrested on March 26, 2004, and subsequently indicted for Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, Possession of a Firearm during the Commission of a Felony (PFDCF), Receiving a Stolen Firearm, Use of a Dwelling for Keeping Controlled Substances, Conspiracy Second Degree, Possession of a Non-Narcotic Schedule I Controlled Substance, Possession of Drug Paraphernalia, Possession of a Deadly Weapon by a Person Prohibited (PDWBPP) (two counts), and Possession of Ammunition by a Person Prohibited (PABPP). After trial, on October 4, 2005, the jury found Defendant guilty of Possession of a Narcotic, Possession of Drug Paraphernalia, Possession of a Nonnarcotic, PABPP, and two counts of PDWBPP. This Court sentenced Defendant to a mandatory minimum sentence of six years at Level V on the two PDWBPP counts, followed by decreasing levels of supervision. Defendant appealed his conviction alleging that this Court erred in denying Defendant's motion for a mistrial and that there was not sufficient evidence to support his convictions for the weapons-related charges. On July 12, 2005, the Supreme Court affirmed the convictions.
Miller v. State, 2005 WL 1653713 (Del.Supr.).
2. Defendant filed this timely motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") on July 11, 2006. Additionally, Defendant filed an amendment to his motion on August 18, 2006. The State and Defendant's trial counsel, Michael C. Heyden, Esquire, filed answers to Defendant's motion and Defendant subsequently filed a reply on October 23, 2006. Defendant's motion alleges seven grounds for relief: (1) ineffective assistance of counsel; (2) the Supreme Court erred when it denied his appeal; (3) the jury did not have enough evidence to find him guilty of the weapons charges; (4) new evidence; (5) the trial judge had to "lead" the State in trial; (6) there was insufficient evidence to support his convictions; and (7) the trial court "abused its discretion" when it denied his May 28, 2004 motion to dismiss.
B. Possible Procedural Bars
3. Before addressing the merits of a motion for postconviction relief, the Court must first apply the procedural bars of Rule 61. If a procedural bar exists, then the Court will not consider the merits of the postconviction claim. Rule 61(i) will bar (1) a motion filed more than one year after a final judgment of conviction, (2) any ground for relief that was not asserted in a prior postconviction proceeding, (3) any ground for relief that was not asserted at trial or on direct appeal, as required by court rules, (4) any ground for relief that was formerly adjudicated. A claimant can avoid the first three of these procedural bars, however, if under 61(i)(5), if the claimant can show that the court lacked jurisdiction or makes "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
4. In applying the procedural bars to this motion, grounds two, three, and six are barred by Rule 61(i)(4). Grounds two and three argue that because Defendant was not convicted of felony drug charges, he should not have been convicted of PDWBPP and PABPP. He states, "Since I wasn't found guilty of felony drug charges the jury didn't have evidence to find me guilty of weapons charges." In addition, in ground six he claims that the "evidence that was presented at trial was insufficient to support a conviction of possession of a firearms [sic] (or ammunition) by a person prohibited."
5. Whether or not Defendant was found guilty of a felony is irrelevant to his convictions of PDWBPP and PABPP. Defendant's argument confuses the difference between the offenses he was convicted of and Possession of a Weapon during the Commission of a Felony (PWDCF), which does require the commission and conviction of an underlying felony. As the Supreme Court explained in its opinion affirming Defendant's conviction, "The PWDCF statute prohibits weapon possession during the felony. Section 1448(a) makes it a crime for a prohibited person to possess a weapon or ammunition at any time." Furthermore, the Supreme Court held that the evidence the State presented at trial was "sufficient for a rational trier of fact to find Miller guilty beyond a reasonable doubt." Therefore, grounds two, three, and six are procedurally barred by Rule 61(i)(4).
Miller, 2005 WL 1653713, at *3.
Id.
C. Ineffective Assistance of Counsel
6. Defendant's ground one asserts ineffective assistance of counsel. To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. Moreover, allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel; the defendant must allege concrete allegations of actual prejudice and substantiate them. Furthermore, when evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Stickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Jordan v. State, 1994 WL 466142 (Del Supr.) (citing Younger v. State, 580 A.2d 552 (Del. 1990)).
Id. at 689.
7. Defendant makes several claims about his counsel's performance at trial. It is plain from the motion and the record that none of Defendant's claims entitle him to relief as they are all conclusory. First, Defendant states that counsel should have objected to the testimony that the State had a search warrant. Defendant also claims that counsel should have objected to the testimony that Defendant had a surveillance camera at his house. However, as counsel points out in his affidavit, both of the statements were accurate and it would have been improper to object to either one. Moreover, Defendant does not allege that he suffered any prejudice as a result of counsel's failure to object.
See Younger, 580 A.2d at 556 (holding that conclusory allegations are legally insufficient to prove ineffective assistance of counsel).
8. Defendant also alleges that counsel should have obtained a doctor to testify on Defendant's behalf that at the time of the offense Defendant "was heavily medicated and wasn't able to more around." Defendant does not indicate why this testimony would have been useful or how he was prejudiced without it. Additionally, counsel states in his affidavit that because Defendant was caught running out of the house, such medical testimony would not have been a defense.
9. Next, Defendant claims that counsel should have hired a fingerprint expert to prove the guns did not belong to him. This allegation is also meritless because there was fingerprint evidence taken which did not connect the defendant or anyone else to the weapons.
Michael C. Heyden Aff. at ¶ 5.
10. Defendant also asserts that counsel should have provided him with the video of State's witness Serita Wilson's statement made at the police station. In response, counsel explained in his affidavit that Defendant was provided with copies of all discovery, however, he did not provide the video because Defendant, being incarcerated, had no capability to watch it. Defendant does not state why he wanted this video. Moreover, he makes no attempt to explain how receiving this video would have affected the outcome of the case.
11. Defendant also argues that his counsel should have run tests on the weapons seized to see whether one of them was the same weapon which Defendant had been shot with weeks before his arrest. Like his previous allegation, Defendant fails to state how this would have been helpful to his case. Defendant has not alleged any facts to suggest that counsel's conduct fell below an objective standard of reasonableness or that he suffered actual prejudice. Consequently, Defendant has not satisfied the requirements for an ineffective assistance of counsel claim.
Strickland, 466 U.S. at 689 ("It is all tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.").
D. Other Alleged Grounds for Relief
12. Ground four states in its entirety: "New evidence. Serita Wilson is willingly [sic] to recant her whole testimony she made at my trial." This assertion is utterly conclusory. Therefore, this ground does not entitle Defendant to relief.
13. Ground five of Defendant's motion alleges that the trial Judge had to "lead" the State in presenting Serita Wilson's testimony. This claim is without merit. The transcript shows that before Wilson's testimony the State, Defendant's counsel, and the Court discussed the parameters of her testimony in order to prevent potential testimony which would have been prejudicial to the Defendant. This discussion was to the benefit of Defendant and does not entitle Defendant to relief under Rule 61.
14. Ground seven claims that the trial court "abused its discretion" when it denied Defendant's "motion to dismiss for lack of indictment" on May 28, 2004. Under Superior Court Criminal Rule 48(b), the Court has discretionary power to dismiss a complaint if there has been an "unnecessary delay in presenting the charge to a grand jury." Defendant was arrested on March 26, 2004 and indicted on June 1, 2004. Defendant has not alleged any facts that suggest there was an "unnecessary delay," and therefore has not demonstrated that the Court abused its discretion.
State v. Fischer, 285 A.2d 417 (Del. 1971) ("The Superior Court's power under Rule 48(b) is a discretionary one, not governed by established concepts of the Speedy Trial Clause of the Sixth Amendment.").
15. For the reasons stated, Defendant's Motion for Postconviction Relief is DENIED.