IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. N0.1705014383A&B

)

)

HAYWOOD JOHNSON, )
)

Dei`endant. )

Submitted: November 19, 2018
Decided.' December 6, 2018

COMM[SSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVlCTION
RELIEF SHOULD BE DENIED

Rebecca Song, Deputy Attomey General, Department of Justice, Wilmington,
De|aware, Attomey for the State of Delaware.

Haywood Johnson, pro se

MAYER, Commissioner

This 6th day of December, 2018, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

BACK(}ROUNI), FACTS AND PROCEDURAL HISTORY

On May 22, 2017, an officer with the Wilmington Police Department
encountered a white Astro van and approached the Vehicle. The officer could see
Defendant, Haywood Johnson, sleeping in the rear of the van. "[`he officer woke him
up and Defendant opened the door. At that time, the officer saw what appeared to
be packaged heroin and marijuana Defendant was ordered out of the van but tried
to flee. Other officers provided assistance and Defendant was taken into custody.
One of the officers saw the handle of a firearm in the pocket behind the right
passenger seat. A search warrant was obtained, executed, and the drugs and firearm
were seized. Defendant was indicted and charged with four counts of Possession or
Control of a Firearm by a Person Prohibited (PFBPP), three counts of Possession or
Control of Ammunition for a Fircarm by a Person Prohibited (PABPP), Carrying a
Concealed Deadly Weapon, two counts of Aggravated Possession, and Resisting
Arrest.

Defendant’s trial counsel filed a l\/Iotion to Suppress and Request for a F ranks

I-Iearing.l Through the Motion to Suppress_, Defendant argued there were

 

' D.l.#ll.

inconsistencies in the Affidavit of Probable Cause in contrast to the Police Report
and /or “false swearing” contained in the search warrant and sought to suppress all
items seized pursuant to the search ofthe Defendant’s vehicle.

At the beginning of the Suppression Hearing, the Court first engaged in a
colloquy with Defendant The Court understood that Defendant’s position was that
there was not only factually inaccurate statements but also a “deliberate falsehood
inserted in the affidavit” of probable cause.2 The Court then explained to Defendant
the difficulties with his position and that should one piece prevail, there were many
other legal hurdles that made Success unlikely. The Court provided time for
Defendant to consult further with counsel and the State before proceeding to hear
testimony from the two officers in question. The Court considered legal arguments
and eventually denied the Motion to Suppress. Subsequently, at final case review,
Defendant was given an opportunity to voice any issues and did not bring anything
to the Court’s attention

On December 12, 2017, Defendant’s trial was scheduled to begin. Defendant
was advised that if the matter went to trial, and if he were found guilty of the charged
offenses, he was facing a minimum of 9 years and a maximum of 125 years of

incarceration In addition_, there was a possible sentence of 35 years of incarceration

 

2 Suppression Hearing at pp. 5-6.

for four pending violations of probation.3 After a further opportunity to consult with
trial counsel_, Defendant agreed to accept a plea. The Court recited each of the
constitutional rights that were being waived by Defendant’s guilty plea and he
Voluntarily agreed to waive them.4 After a further dialogue with the Court,
Defendant indicated he was satisfied with trial counsel’s representations

On that same date, Defendant executed a Plea Agreement, Truth-ln-
Sentencing Guilty Plea Form and Immediate Sentencing Form. Defendant agreed
to plead guilty to one count of PFBPP and one count of Aggravated Possession Tier
3 Quantity of Heroin with an Aggravating Factor, all other charges would be nolle
prosequi and dismissed According to the Plea Agreement, the State would
recommend for the PFBPP charge a sentence of 15 years at Level 5 suspended for
the minimum mandatory of 5 years, followed by probation; and for the Aggravated
Possession charge, a sentence of 25 years at Level 5 suspended after 2 years for
probation By executing the Truth-In-Sentencing Guilty Plea Form, Defendant
agreed to waive the right to a trial byjury, to question witnesses, to present evidence

in his defense, to testify in his defense, and to compel the State to prove each of the

 

3 Plea and Sentencing Transcript December 12, 2017 at p. 8 (hereinaf`ter “Plea Tr.

at 77

4 Plea Tr. at pp. 18-19.

5 Plea Tr. at pp. 22-23.

charges against him. Defendant also recognized that the charges involved a possible
penalty of up to 40 years at Level 5 , with a minimum mandatory of 7 years, not
including certain violations of probation he had pending as well. Defendant was
sentenced to Level 5 time, suspended upon Defendant serving the minimum
mandatoly for both charges.

On July 5, 2018, Defendant filed a Motion for Postconviction Relief.6 In his

original motion, Defendant presented the following arguments:

(l) lneffectivc Assistance of Cognsel: Trial Counsel failed to properly
investigate the case, delayed filing a motion to suppress, and failed to properly
raise issues of false statements made by officers and lack of probable cause.

(2) Plain Error: The State relied on false statements by the officers.

(3) lllega| Search and Seizure: 'I`he confidential informant’s “tip” was
unreliable and law enforcement had no other basis to suspect illegal activity

supporting a search.

(4) Brmly Violation: The State withheld evidence of misconduct by Carl Rone
at the forensics lab.

(S)Abuse of Discretion: The Trial Judge abused his discretion in denying
Defendant’s motion to suppress

On September 24, 2018, Defendant filed an additional brief in support and

presented arguments including: (a) violation of Due Process when the State relied

 

6 D.I. # 27. Defendant’s Motion for Appointment of Counsel was denied (D.l. #
32). Defendant also filed two Motions for Transcripts, the first was denied and the
second was granted in part (See D.I. #s 25, 26, 31, 32).

on witnesses who made sworn statements in reckless disregard for the truth; (b)
improper use of the plain view doctrine; (c) use of an uncorroborated tip; and (d) the
Court abused its discretion by denying Defendant’s motion.7
In response to the Motion, trial counsel submitted a detailed Affidavit and
documentation in support8 Trial counsel produced seven pages of notes beginning
at the time of assignment According to the notes, trial counsel (a) visited all
locations looking for cameras and contacted an investigator; (b) spoke with
residents, the landlord and property management; (c) provided Defendant with the
discovery; (d) engaged in multiple visits and efforts to arrange for equipment to
obtain video surveillance, meetings with witnesses and client re: investigation; (e)
negotiated a plea with the State; and (f) advised Defendant of the difficulties with
suppression as well as possible trial strategy. Although trial counsel spoke to an
individual pictured in police photos and present at the scene during Defendant’s
arrest, her information did not support Defendant’s Versi_on of events. Trial counsel
filed the motion to suppress later than anticipated but the trial was continued to allow
a hearing on the motion.
The State filed a Response asking the Court to deny the Motion because

the claims are procedurally barred and/or lack merit. Defendant was afforded an

 

7 D.l. # 38,

8 D.I. # 43.

opportunity to amend his original motion,9 to file a Response to Trial Counsel’s
Affidavit,‘° and additional time to file a Reply to address the State’s Response to his
Motion. " ln his Reply, Defendant asks the Court to disregard the State’s procedural
arguments Defendant then provides details regarding the search and seizure and
argues: (1) the police obtained the video footage before defense counsel could and
without submitting it into evidence; (2) the tip that the police acted on was
uncorroborated and they did not have reasonable and articulable suspicion to
approach Defendant; (3) the State did not present testimony that the officers acted
under the caretaker doctrine; and (4) the trial jury would have been affected by the
false testimonies and statements of the officers.
LEGAL CONCLUSION

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the motion.12 This is Defendant’s first

motion for post-conviction relief and it was timely filed.'3 Despite this, Defendant’s

 

9 D.I. # 38.
10 D.I. # 45.
ll D.l. # 46.
12 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'3 See Super. Ct. Crim. R. 61(i)( l) (motion must be filed within one year of when

conviction becomes final).

claims are procedurally barred, waived and/or unsupported by the record. Where a
procedural rule bars the claim(s), the Court should not consider the merits of the
postconviction motion.14

Pursuant to Super. Ct. Crim. R. 61(i)(3) and (4), 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. Although titled differently, (almost) all of the claims challenge
the search leading to the arrest, and the proceedings related thereto, and are therefore
barred by Super. Ct. Crim. R. 61(i)(3) or (4).l5

Defendant’s Motion provides a detailed analysis of what he believes to be
inconsistent facts from the investigation and reports. Defendant is re-arguing the
alleged “false statements” by the police officers that formed a basis for the search
and presented by way of the Motion to Suppress. Defendant’s claims of plain eiror,
illegal search and seizure, violation of due process, improper use of plain view

doctrine, uncorroborated tip, and abuse of discretion, are all claims challenging the

 

'4 See State v. Cha(), 2006 WL 2788180, at * 5 (Del. Super. Sept. 25, 2006) (“To
protect the integrity of the procedural rules, the Court should not consider the merits
of a postconviction claim where a procedural bar exists.”).

15 The exception are the arguments relating to Carl Rhone and ineffective assistance
of counsel that will be addressed below.

search which was the subject of the Motion to Suppress. These claims, regardless
of how they are re-couched, where formerly adjudicated and are now barred.

To the extent Defendant believes these claims were not formerly adjudicated,
they are deemed waived pursuant to Super. Ct. Crim. R. 61(i)(3). Defendant admits
in his Motion that all of that information`was made available to him through the
discovery process prior to him entering into the Plea Agreement. Defendant, with
full knowledge of the witness statements, elected to plead guilty and forgo
confronting the witnesses at trial. When Defendant entered into the Plea Agreement
and executed the Truth-in-Sentencing Guilty Plea Form, he waived his right to
contest any of the evidence against him.16 Defendant had a full and fair opportunity
to raise any issues and elected to plead guilty. A defendant’s statements to the Court
during the guilty plea colloquy are presumed to be truthful and Defendant is bound
by his statements to the Court.17 Therefore, to the extent the claims are not barred

by Super. Ct. Crim. R. 6l(i)(4), they were waived when Defendant failed to present

 

16 See also, Brown v. State, 108 A.3d 1201 (2015) (affirming denial of request for
new trial on the basis that defendant pled guilty and gave up his right to trial and
contest evidence).

17 Windsor v. State, 2015 WL 5679751, at *3 (Del., Sept. 25, 2015) (holding that
absent clear and convincing evidence to the contrary, defendant is bound by his
sworn statements). See also, State v. Brown, 2010 WL 8250799, at *3 (Del. Super.,
Apr. 14, 2010), citing, Somerville v. State, 703 A.2d 629 (Del. 1997).

them to the trial court, on appeal and/or when he pleaded guilty and relinquished his
right to challenge the State’s evidence against him at trial.

A defendant may overcome this procedural hurdle by showing cause for relief
and prejudice from a violation of his rights. However, “cause” requires the
defendant to show that “some external impediment” prevented him from raising the
claim.18 Defendant admits that the State’s evidence was available to him at the
Suppression Hearing, at the time of trial, and when he plead guilty. Therefore, there
was no impediment preventing him from raising the claims sooner. Further, to avoid
this bar, a defendant must show prejudice by demonstrating that there is a substantial
likelihood that if the issue were raised on appeal, the outcome would have been
different19 Although Defendant has zealously challenged the evidence, this Court
engaged in a meaningful process and found the search and seizure valid. Defendant
has not offered a sufficient basis to contradict that finding should the matter have
been appealed

The bars to relief set forth above will also not apply to a claim that (i) the court
lacked jurisdiction, (ii) pleads with particularity that new evidence exists creating a

strong inference that the movant is actually innocent in fact of the acts underlying

 

18 State v. W'escott, 2014 WL 7740466, at *l (Del. Super. Nov. 24, 2014).

19 Id.

10

the conviction, or (iii) a new rule of constitutional law, made retroactive to cases on
collateral review, applies to render the conviction invalid.20 Defendant does not
argue the Court lacked jurisdiction has not plead any new evidence or facts
demonstrating that he is innocent of the acts giving rise to the conviction, nor has he
asserted that a new rule of constitutional law affects his conviction As such,
Defendant has failed to establish an exception to the procedural bars.

Even if the Court were to consider Defendant’s claims as an ineffective
assistance of counsel claim, a defendant must show that his counsel’s representation
fell below an objective standard of reasonableness and the deficiencies in counsel’s
representation caused the defendant actual prejudice.21 When a defendant has plead
guilty, he must show that counsel’s actions were so prejudicial that there is a
reasonable probability that, but for counsel’s errors, the defendant would not have
plead guilty and would have insisted on going to trial.`22 Defendant must also
overcome a strong presumption that counse_l’s conduct was reasonably professional

under the circumstances23 Mere allegations of ineffectiveness will not suffice,

 

20 see super. Ct. crim. R. 61(i)(5)and(d)(z)(i)-(ii).

21 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hz`tchens v. State,
757 A.2d 1278 (Del. 2000).

22 State v. Hess, 2014 WL 66777'14, at * 6 (Del. Super., Nov. 20_, 2014) (citations
omitted).

23 State v. Wright, 653 A.2d 288, 293-94 (citations omitted).

11

rather, a defendant must make and substantiate concrete allegations of actual

24 Great weight and deference are given to tactical decisions by the trial

prejudice
attorney and counsel cannot be deemed ineffective for failing to pursue motions that
lack merit.25

In Defendant’s original Motion he states “Defendant is not implying that
going to trial would have resulted in a different outcome...” but then goes on to
argue that if trial counsel had done a better job with the suppression motion, the
outcome of the proceedings would have been different Unfortunately, that seems
unlikely. The Court warned Defendant prior to the Suppression Hearing, that he
faced multiple legal hurdles in challenging the search and seizure. A hill and
thorough contested hearing was held and the Court denied the Motion to Suppress.
After reviewing trial counsel’s notes and the record in this matter it is difficult to
discern what, if anything_, trial counsel could have done differently. Considering the
deference given_to trial counsel’s strategy, Defendant has failed to demonstrate
counsel’S conduct fell below an objective standard of reasonableness

Defendant’s remaining argument attacks the State’s evidence relating to the

firearm and the involvement of Carl Rone. According to the State’s _Response,

 

24 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

25 State v. Miller, 2013 WL 871320, at *4 (Del. Super., Feb, 26, 2013).

12

Corporal Evans of the Wilmington Police Department Forensics Unit processed and
analyzed the firearm in this matter and Carl Rone had no involvement in the case.
ln light of the fact that Rone was not involved in the analysis of the evidence, and
Defendant’s waiver of the right to contest the evidence against him, this argument
must be denied. Defendant’s hypotheticals and unsupported arguments set forth in
his Motion do not persuade the Court otherwise.

Finally, Defendant was told by the Court that there were multiple obstacles to
his suppression strategy and that success was unlikely. Defendant was eventually
sentenced well within the lower end of the guidelines Defendant avoided a possible
sentence of up to 160 years and a possible minimum mandatory of 9 years Not only
has Defendant failed to demonstrate ineffective assistance of counsel, but Defendant
cannot establish prejudice resulted in this matter.

For all of the foregoing reasons, Defendant’s Motion for Postconviction

Relief should be DENIED.

IT is so RECoMMENI)ED. /z/:>
/“:>

mm iss`ibner“l@§t£@};n_eLr`M?yer-/

Cc: Prothonotary
Rebecca Song, Esquire
Ray Armstrong, Esquire
Haywood Johnson

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