       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                                   )
                                                     )
       v.                                            )      Cr. ID No. 1206018361
                                                     )
HARRY ANDERSON,                                      )
            Defendant.                               )

                     Upon Defendant’s Motion for Postconviction Relief:
                                        DENIED
                               Submitted: October 10, 2014
                                 Decided: January 6, 2015

            Upon Defendant’s Motion for Appointment of Postconviction Counsel:
                                        DENIED
                              Submitted: November 3, 2014
                                 Decided: January 6, 2015

       In 2012, Defendant Harry W. Anderson was arrested and indicted on

multiple counts of Felony Theft, Burglary Third Degree, and Criminal Mischief.

On January 24, 2013, Defendant pled guilty to two counts of Burglary Third

Degree. As part of the plea agreement, the State filed a motion to sentence

Defendant as a habitual offender pursuant to 11 Del. C. § 4214(a) with respect to

one of the two counts of Burglary Third Degree.

       After pleading guilty but before he was sentenced, Defendant filed a series

of unsuccessful motions and letters, as a self-represented litigant, requesting

dismissal of the Superior Court charges against him. 1 At Defendant’s sentencing

1
  See Anderson v. State, 2014 WL 3511717, at n. 5 (Del. July 14, 2014) (detailing Defendant’s
allegations that Trial Counsel refused to file a motion to suppress and that Trial Counsel had a
conflict of interest, which, according to Defendant, resulted in a coerced guilty plea).
hearing on September 20, 2013, the Court heard oral argument on Defendant’s

motion to withdraw his guilty plea. Defendant stated that he entered the guilty plea

under duress on the grounds that Defendant’s Trial Counsel refused to file a

motion to suppress and because Defendant’s Trial Counsel had a conflict of

interest. The Superior Court denied Defendant’s motion, finding that Defendant

entered a knowing, intelligent, and voluntary guilty plea. 2

       The Court sentenced Defendant as a habitual offender on one of the two

counts of Burglary Third Degree, to six years at Level V. As to the second count

of Burglary Third Degree, the Court sentenced Defendant to three years at Level

V, suspended for 18 months at Level III. After sentencing, Defendant appealed to

the Delaware Supreme Court as a self-represented litigant. 3 The Supreme Court

affirmed the Superior Court’s judgment of conviction and the sentence imposed.4

       Defendant filed this motion for postconviction relief on October 10, 2014.

Defendant asserts the following grounds for relief: (1) Defendant’s guilty plea was

coerced; (2) Defendant’s Trial Counsel had a conflict of interest representing




2
  The Delaware Supreme Court affirmed the Superior Court’s finding, stating “[the Supreme
Court] can discern no basis upon which to conclude that [Defendant’s] guilty plea was not
voluntarily entered or was entered because of [Defendant’s] misapprehension or mistake as to
[Defendant’s] legal rights.” Id. at *2.
3
  State v. Anderson, 2014 WL 604680 (Del. Super. Feb. 10, 2014) (granting Defendant’s request
to proceed pro se on appeal to the Delaware Supreme Court).
4
  Anderson, 2014 WL 3511717, at *3.
                                              2
Defendant; and (3) ineffective assistance of counsel.5 Additionally, Defendant

filed this motion for appointment of postconviction counsel.

       Upon consideration of Defendant’s motions, the Court finds as follows:

    1. The recently amended Superior Court Criminal Rule 61 controls

       Defendant’s motion for postconviction relief and Defendant’s motion for

       appointment of postconviction counsel. 6

    2. Before addressing the merits of a motion for postconviction relief, the Court

       must consider the procedural requirements of Rule 61(i).7

    3. A motion is procedurally sufficient for consideration on the merits if it is the

       defendant’s first motion, 8 the motion is timely, 9 and the motion does not

       assert grounds for relief already adjudicated. 10

    4. If the motion is procedurally defect, the Court may nonetheless consider the

       merits of the motion if the claims satisfy the pleading standards of Rule

       61(d)(2)(i) and (ii).11 The pleading standard of Rule 61(d)(2)(i) requires that

       a motion for postconviction relief “[p]leads with particularity that 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

5
  Def.’s Mot. for Postconviction Relief, 3-4.
6
  Defendant filed the instant motions after the June 4, 2014 amendments took effect.
7
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
8
  Super. Ct. Crim. R. 61(i)(2).
9
  Super. Ct. Crim. R. 61(i)(1).
10
   Super. Ct. Crim. R. 61(i)(4).
11
   Super. Ct. Crim. R. 61(i)(5).
                                               3
          convicted.”      Alternatively, Rule 61(d)(2)(ii) requires that a motion for

          postconviction relief “[p]leads with particularity a claim that a new rule of

          constitutional law, made retroactive to cases on collateral review by the . . .

          Delaware Supreme Court, applies to the movant’s case and renders the

          conviction . . . invalid.”

      5. Defendant’s motion for postconviction relief asserts formerly adjudicated

          grounds for relief and, therefore, Defendant’s motion is procedurally barred.

          Pursuant to Rule 61(i)(4), “[a]ny ground for relief that was formerly

          adjudicated, whether in the proceedings leading to the conviction, in an

          appeal, in a postconviction proceeding, or in a federal habeas corpus

          proceeding, is thereafter barred.”

      6. Defendant’s first ground for postconviction relief asserts that Trial Counsel

          coerced Defendant into entering guilty plea. The Court previously addressed

          this claim at Defendant’s sentencing. At sentencing, Defendant moved to

          withdraw his guilty plea. In support of his motion, Defendant alleged that he

          was coerced into entering a guilty plea because Trial Counsel did not follow

          the originally agreed-upon case strategy because Trial Counsel would not

          “do certain things” such as file a motion to suppress evidence obtained from

          a defective search warrant.12 In response, the Court asked Defendant if he


12
     Trial Counsel explained the issue to the Court as follows:
                                                   4
       recalled entering a guilty plea on January 24, 2013, which Defendant

       affirmed. 13 The Court continued:

               At that time [the judge] asked you whether you were freely
               and voluntarily pleading guilty to the two Burglary Third
               charges. You responded yes. [The judge] asked you whether
               anyone had threatened or forced you to enter into the plea.
               You said no . . . . [y]ou said you understood that. [The
               judge] went through a very thorough question and answer
               period with you on the record in open court. You told [the
               judge] that you wished to enter a plea rather than go forward
               to trial. . . . the Court places great weight on that [plea
               colloquy] because you said on the record in open court . . .
               you wished to plea and you were doing so knowingly,
               intelligently, and voluntarily. 14


       When the Court asked Defendant why he previously stated that he was

       satisfied with Trial Counsel’s representation during plea colloquy,

       Defendant responded, “I was totally under duress at the time . . . . [w]hen I

       went for my final case review . . . I informed [the judge] of these issues,

       [including] that suppression issue.” 15 At that time, Trial Counsel interjected

       and explained “[Defendant] seems to not have understood the idea that

       [Defendant] has certain decisions to make. In terms of other decisions

         There was a search warrant for a car that was believed to be [Defendant’s], in
         which the police recovered [evidence]. . . . I had conversations with . . . the
         prosecutor on the case about the propriety of the search warrant, [and the]
         sufficiency of it . . . . I prepared a draft motion [to suppress] to [the prosecutor].
         [The prosecutor] reviewed it, agreed there was – the search warrant was defective,
         agreed not to introduce the item. Sentencing Tr. 5.
13
   Id. at 5.
14
   Id. at 5-6.
15
   Id. at 7.
                                                  5
       involving legal issues, those are mine to make. I disagree with [Defendant]

       there was any basis for any further suppression motions other than the one I

       drafted and showed [the prosecutor].” 16 Accordingly, the Court determined

       that Defendant entered a knowing, intelligent, and voluntary plea agreement.

     7. On appeal to the Delaware Supreme Court, Defendant again asserted that

       Trial Counsel’s refusal to move for suppression of illegally obtained

       evidence essentially coerced Defendant into entering a guilty plea. The

       Supreme Court reviewed the record and stated it could “discern no basis

       upon which to conclude that [Defendant’s] guilty plea was not voluntary,”

       noting that Defendant expressly stated “no one had threatened or coerced

       [Defendant] to accept the plea” and that Defendant was satisfied with Trial

       Counsel’s representation. 17 Accordingly, Defendant’s claim that he entered

       a coerced guilty plea is a formerly adjudicated matter and is barred from

       postconviction relief. Moreover, because Defendant entered a knowing,

       intelligent, and voluntary guilty plea, Defendant waived “any alleged errors

       or defects occurring prior to the entry of the plea.” 18 Therefore, Defendant

       has waived the claim that he entered a coerced plea.



16
   Id. at. 6-9.
17
   Anderson, 2014 WL 3511717, at *2.
18
   West v. State, 2004 WL 4264922, at *2 (Del. Aug. 28, 2014); Anderson, 2014 WL 3511717, at
*2.
                                             6
      8. Defendant’s second ground for postconviction relief is that Trial Counsel

         provided ineffective assistance of counsel for failing to file a motion to

         suppress evidence illegally obtained evidence. However, this claim is an

         attempt to reargue Defendant’s claim that he entered a coerced guilty plea.

         Defendant’s argument has been duly reviewed and considered. This Court

         will not revisit Defendant’s duplicative argument merely cloaked as a claim

         of ineffective assistance of counsel.

      9. Defendant’s third and final ground for postconviction relief is that Trial

         Counsel had a conflict of interest in representing Defendant. Defendant

         previously asserted this claim on direct appeal and the Delaware Supreme

         Court concluded that the claim lacked merit. 19

      10.Therefore, Defendant’s postconviction claims are procedurally barred

         pursuant to Rule 61(i)(4) and fail to demonstrate exemption from the

         procedural bars under Rule 61(i)(5). Specifically, Defendant’s motion does

         not meet the pleading standards of Rule 61(d)(2)(i) or (ii) because

         Defendant’s motion does not present any new evidence that creates a strong

         inference of innocence and does not rely on a new, retroactive rule of




19
     Anderson, 2014 WL 3511717, at *3.
                                             7
        constitutional law.        Accordingly, Defendant’s motion for postconviction

        relief is hereby dismissed.20

     11.Consequentially, Defendant’s motion for appointment of counsel is denied.

        Even if Defendant’s motion for postconviction relief qualified for review on

        the merits, Defendant is not entitled to appointment of postconviction

        counsel because Defendant entered a plea of guilty.

     12.Appointment of postconviction counsel, in the context of a guilty plea, is

        governed by Rule 61(e)(2). The Court may appoint postconviction counsel

        for a Defendant’s first motion for postconviction relief if, among other

        things “the motion sets forth a substantial claim of ineffective assistance of

        counsel in relation to the plea of guilty . . . and specific exceptional

        circumstances warrant the appointment of counsel.” 21

     13.As stated above, Defendant’s motion sets forth a meritless claim of

        ineffective assistance of counsel. Furthermore, the Court is unaware of any

        exceptional circumstances that warrant the appointment of counsel. For

        instance, Defendant’s motion requests appointment of counsel because

        motions for postconviction relief are complex and require significant

        research and Defendant has a “limited knowledge of the law.” 22 The Court


20
   Super. Ct. Crim. R. 61(d)(5).
21
   Super. Ct. Crim. R. 61(e)(2).
22
   Def’s. Mot. for Counsel, ¶ 8.
                                              8
       recognizes the complexities of postconviction motions; however, the Court

       is aware of over forty separate court filings Defendant has submitted to

       Delaware courts over the last decade.23              Indeed, Defendant previously

       represented himself pro se on an appeal to the Delaware Supreme Court. 24

       During the evidentiary hearing on Defendant’s ability to handle the pro se

       appeal, Defendant explained that he “has pursued other appeals in the past

       and has successfully obtained remands to the trial court as a result of his

       advocacy.” 25

       NOW, THEREFORE, on this 6th day of January 2015, Defendant’s

Motion for Postconviction Relief is hereby DENIED and Defendant’s Motion

for Appointment of Postconviction Counsel is hereby DENIED.

       IT IS SO ORDERED.

                                            Andrea L. Rocanelli
                                            ____________________________________
                                            The Honorable Andrea L. Rocanelli




23
   See, e.g., State v. Anderson, 2014 WL 5169321, at *1 (Del. Super. Oct. 10, 2014).
24
   State v. Anderson, 2014 WL 604680, at *1-2 (Del. Super. Feb. 10, 2014).
25
   Id.
                                               9
