IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

ID No. 1702005504

Cr. A. Nos. IN17-02-0859,

TIMOTHY J. ADKINS, -0661, -0863, -0867.

Defendant.
Submitted: April 8, 2019
Decided: July 16, 2019
ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

This 16th day of July, 2019, upon consideration of Timothy J. Adkins’ Pro Se
Motion for Postconviction Relief (D.I. 32); the State’s Response thereto (DI. 45);
Attorney Natalie S. Woloshin’s Affidavit (D.I. 43); Adkins’ Supplement to his
Motion (D.I. 42) and the record in this matter, it appears to the Court that:

(1) On April 11, 2017, a grand jury indicted Timothy J. Adkins for two
counts of Drug Dealing (marijuana and cocaine), two counts of Aggravated
Possession (marijuana and cocaine), Conspiracy Second Degree, two counts of
Possession of a Firearm During the Commission ofa Felony (“PFDCF”), two counts

of Possession of a Firearm by a Person Prohibited (“PFBPP”), Possession of
Ammunition by a Person Prohibited (“PABPP”), Receiving a Stolen Firearm, and
Possession of Drug Paraphernalia.'

(2) The charges arose from a year-long investigation of Atkins and his co-
defendants, Darnell Martin and Keith Mason, for transporting large quantities of
marijuana across the country and selling drugs in and around Wilmington. The
investigation led to the execution of a search warrant at 712 Dora Moors Lane in
New Castle. Police found Adkins in the home’s basement. Also found there were
247 grams of cocaine, four large duffle bags containing 21’ kilos of marijuana, a
money ledger, a money counter, a digital scale, drug packaging materials, and a
firearm. In Atkins’ car outside the home, detectives found another kilo of marijuana.
Atkins admitted to the police that the drugs and gun were his.”

(3) In November of 2017, Adkins pleaded guilty to Drug Dealing-
Marijuana, Conspiracy Second Degree, Drug Dealing-Cocaine, and PFBPP.* The
State agreed to seek application of Adkins’ statutory habitual criminal status to only

one of the charges.*

 

Indictment, State v. Timothy J. Adkins, ID No. 1702005504 (Del. Super. Ct. Apr. 17, 2017)
(D.I. 5).

2 See State’s Resp., at 1-5; Def. Counsel’s Aff., at J 6.

3 Plea Agreement and TIS Guilty Plea Form, State v. Timothy J. Adkins, ID No. 1702005504
(Del. Super. Ct. Nov. 6, 2017) (D.I. 22).

: Id.
(4) Adkins was sentenced almost a month later to: (a) ten years at Level V
for the PFBPP charge; (b) six months at Level V (to be served under the provisions
of the Habitual Criminal Act) for the cocaine dealing charge; (c) 25 years at Level
V, suspended after two years for 23 years at Level IV (Work Release), suspended
after six months for 18 months at Level III, for the marijuana dealing charge; and
(d) two years at Level V, suspended for one year of Level III probation for the second
degree conspiracy count.’ He filed no direct appeal from his conviction or sentence.

(5) Adkins has now filed the instant timely motion for postconviction relief
under Superior Court Criminal Rule 61.

(6) When considering applications for postconviction relief under its
criminal rules, this Court addresses any applicable procedural bars before turning to
the merits.° This policy protects the integrity of the Court’s rules and the finality of
its judgments. Addressing the merits of a case that does not meet procedural

requirements effectively renders our procedural rules meaningless.’

 

5 Sentencing Order, State v. Timothy J. Adkins, 1D No. 1702005504 (Del. Super. Ct. Dec.
1, 2017) (D.I. 29) (hereinafter “Sentencing Order’).

6 See, e.g., Ayers v. State, 802 A.2d 278, 281 (Del. 2002). See also Bailey v. State, 588 A.2d
1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed,
489 U.S. 255 (1989)).

7 See State v. Chao, 2006 WL 2788180, at *5 (Del. Super. Ct. 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.”); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct.
Sept. 10, 2002) (citing State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Ct. Dec. 28, 1995))
(same).

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(7) Rule 61 sets forth procedural bars to postconviction claims, including
that “[a]ny ground for relief that was not asserted in the proceedings leading to the
judgment of conviction, as required by the rules of this court, is thereafter barred,
unless the movant shows .. . [c]ause for relief from the procedural default and. . .
[p]rejudice from violation of the movant’s rights.”® Adkins’ failure to raise his third
and fourth claims—i.e., his claim that the Court erred in accepting his plea and his
“Brady violation”/prosecutorial misconduct complaint—either in this Court or on
direct appeal prevents the Court from addressing them now unless Adkins shows
cause for relief and prejudice from a violation of his rights. Adkins has demonstrated
neither the requisite cause for relief nor prejudice. And so, these claims are barred
Rule 61(i)(3).?

(8) Rule 61(i)(3)’s bar is inapplicable to “claims [of] ineffective assistance
of counsel, which could not have been raised in any direct appeal.”'? So the Court
now considers those claims on their merits.

(9) Adkins suggests in his motion that his trial/plea counsel, Natalie S.

 

8 SUPER. CT. CRIM. R. 61(i)(3) (2017).

? These conclusory arguments, however, are also intertwined with Adkins’ complaints

attacking counsel and are effectively disposed of via the Court’s discussion of those ineffectiveness
claims.

10 “State v. Smith, 2017 WL 2930930, at *1 (Del. Super. Ct. July 7, 2017).

4.
Woloshin, Esquire, provided ineffective assistance of counsel because she allegedly:

(a) failed to file either the “proper” pre-trial motions or other
motions Adkins wanted her to file; and

(b) coerced Adkins into accepting a guilty plea.'!

(10) The Court entered an order to expand the record to include “any
materials that respond to the specific [ineffective assistance of counsel] allegation
relating to Woloshin’s representation [of Adkins].”'* On that same day, the Court
denied Adkins’ request for appointment of counsel to pursue his Rule 61 motion."

(11) An inmate who claims ineffective assistance of counsel must
demonstrate that: (a) his defense counsel’s representation fell below an objective
standard of reasonableness, and (b) there is a reasonable probability that but for
counsel’s errors, the result of the proceeding would have been different.'* When
addressing the prejudice prong of the ineffective assistance of counsel test in the

context of a challenged guilty plea, a defendant must show “that there is a reasonable

 

Def.’s Rule 61 Mot., at 3-4.

e Order to Expand Record and Denying Appointment of Counsel, State v. Timothy J. Adkins,

ID No. 1702005504 (Del. Super. Ct. June 4, 20186) (D.I. 36 & 41).

i: Id. (Adkins failed to demonstrate “that his is a substantial IAC claim .. . [nJor has he
adequately pled any specific exceptional circumstances warranting the appointment of counsel”).

M4 Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL
5297709, at *3 (Del. Sept. 4, 2015).

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probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.”!°

(12) There is always a strong presumption that counsel’s representation was
reasonable,'® and “[iJ]t is not this Court’s function to second-guess reasonable [ ]
tactics” engaged by trial or plea counsel.'’ Too, one claiming ineffective assistance
“must make specific allegations of how defense counsel’s conduct actually
prejudiced the proceedings, rather than mere allegations of ineffectiveness.”'® And
an inmate must satisfy the proof requirements of both prongs—deficient attorney
performance and resulting prejudice—to succeed in making an ineffective assistance

of counsel claim. Failure to do so on either prong will doom the claim, and the Court

need not address the other. !°

 

7 See Albury v. State, 551 A.2d 53, 59 (1988); Sartin v. State, 2014 WL 5392047, at *2 (Del.
Oct. 21, 2014) (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)); State v. Hackett, 2005 WL
3060976, at *3 (Del. Super. Ct. Nov. 15, 2005).

16 See Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

M7 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Ct. Apr. 1, 2002).

7 Alston, 2015 WL 5297709, at *3 (citing Wright, 671 A.2d at 1356); Monroe v. State, 2015
WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v. State, 673 A.2d 1186, 1196 (Del.
1996)).

19 Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a
two-pronged test, and there is no need to examine whether an attorney performed deficiently if the

deficiency did not prejudice the defendant.”); State v. Hamby, 2005 WL 914462, at *2 (Del. Super.
Ct. Mar. 14, 2005).

Ge
(13) First, Adkins’ claim that Woloshin failed to explore potential defenses
and suppression claims is belied by the record. Adkins says Woloshin “was
ineffective by not filing the proper pretrial motions” and failed to “prepar[e]
effectively for [him] to go to trial.”2° Adkins provides neither support for these
assertions nor an adequate explanation as to what may have been missed. A
defendant’s conclusory allegations of ineffective assistance of counsel do not
establish that his counsel’s representation was objectively unreasonable.*! And
contrary to Adkins’s contentions, the record demonstrates that Woloshin met with
Adkins regularly pre-trial, engaged in multiple discussions of the evidence, and
reviewed numerous potential suppression arguments.””_ Then, as now, Adkins was
fixated on the idea that if he could somehow convince the Court that his compatriot,
Darnell Martin, was illegally stopped, then any information obtained from Martin’s
stop would have to be excluded from the Dora Moors Lane search warrant. In turn,
Atkins suggests, the evidence surrounding Adkins when the police executed that

warrant would have to be suppressed.”

 

20 Def.’s Rule 61 Mot., at 3-4.
7 Dawson, 673 A.2d at 1196.
22 Def. Counsel’s Aff., at J9 7-9, 12.

a Def.’s Rule 61 Mot., at 3-4; Def.’s Amend. to Rule 61 Mot., at 1.

ye
(14) The decision whether or not to include any particular legal argument in
a motion to suppress is a strategic decision and a matter of professional judgment.
Such a decision is not deficient representation if it is informed and reasonable.”
Further, a defendant cannot demonstrate prejudice by defense counsel’s failure to
press a particular suppression claim if that argument were likely to fail.”°

(15) Woloshin did file a suppression motion attacking the Dora Moors Lane
search warrant.”© But after giving careful consideration to the illegal-codefedant-
traffic-stop argument Atkins wanted to make, she choose not include it. Woloshin
recognized the several weaknesses in Atkins’ preferred argument: (a) he lacked
standing to challenge Martin’s traffic stop; (b) Martin, who did have standing, lost
his own suppression hearing; and, (c) even without the Martin-stop averment, the
search warrant for 712 Dora Moors Lane was supported by probable cause.”’ Atkins

has not shown that Woloshin’s professional decision to forgo this argument in her

suppression motion was unreasonable;?® nor can he show prejudice—any

 

aa See Pennewell v. State, 2005 WL 578444, at *1 (Del. Jan. 26, 2005).

25 See Poteat v. State, 2007 WL 2309983, at *1 (Del. Aug. 14, 2007); Bratcher v. State, 2008
WL 2475741, at *1 (Del. June 20, 2008).

ab Def. Counsel’s Aff., at 413; id, Ex. E.
27 Def. Counsel’s Aff., at J 10.
7 Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (“If an attorney makes a strategic choice

‘after thorough investigation of law and facts relevant to plausible options,’ that decision is
“virtually unchallengeable’...”).

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suppression argument by Atkins related to Martin’s traffic stop was going to fail.
Atkins is simply wrong in his understanding of applicable Fourth Amendment law.

(16) To invoke the Fourth Amendment’s, the Delaware Constitution’s, or
any applicable statute-based exclusionary rule, a defendant must demonstrate that
his own rights were violated by the challenged search or seizure.” These rights are
violated only if “the disputed search and seizure has infringed an interest of the
defendant which the Fourth Amendment [or any state constitutional or statutory
provision] was designed to protect.’ A criminal defendant’s rights aren’t violated
by the introduction of evidence obtained in violation of some third party’s rights.?!
No, the protected rights are “personal.”>? So the proponent of a motion to suppress
bears the burden of proving not only that a contested search or seizure was illegal,
but also that he had a legitimate expectation of privacy in the place searched or the
item or person seized.*? Here Adkins had no such expectation during the traffic stop

of Darnell Martin; Woloshin was correct on this. She was likewise reasonable in her

 

a See Rakas vy. Illinois, 439 U.S. 128, 132-34 (1978); Hanna v. State, 591 A.2d 158, 162-63
(Del. 1991).

7 Rakas, 439 U.S. at 140.

| Id. at 134.

32 Id. at 139.

33 Rawlings v. Kentucky, 448 U.S. 98, 104 (1980); Washington v. State, 1994 WL 716044, at

*2 (Del. Dec. 20, 1994) (“A defendant bears the burden of proof of showing that he has standing
to contest an unlawful search’’).

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belief that the Dora Moors Lane search warrant was sufficient even without the
evidence from Martin’s traffic stop.*4 And the State’s reliance on the evidence from
that stop and the Dora Moors Lane search warrant can hardly be viewed as
“misconduct” or a “Brady violation.”

(17) Adkins’ second argument—that Woloshin coerced him into accepting
a plea agreement—is also unsupported by the record. During Adkins’ plea colloquy,
Woloshin represented that she spent a considerable amount of time with him during
her representation, thoroughly reviewed the evidence in his cases, discussed the
charges and potential penalties with Adkins, was prepared to move forward with his
suppression hearing, and assured that Adkins understood the consequences of
accepting the State’s plea offer.*°

(18) Adkins, in a detailed plea colloquy, confirmed that: (a) he understood
the charges to which he was pleading guilty; (b) he had committed those crimes;
(c) he was waiving all trial rights; (d) he understood the abandonment of any

suppression arguments; (d) he understood the sentencing provisions applicable in

 

7 See State v. Holden, 60 A.3d 1110, 1114 (Del. 2013) (An affidavit in support of a search
warrant must, within the four corners of the affidavit, set forth facts adequate for a judicial officer
to form a reasonable belief that an offense has been committed and the property to be seized will
be found in a particular place); see also Sisson v. State, 903 A.2d 288, 296 (Del. 2006) (A
magistrate may find probable cause when, considering the totality of the circumstances, “there is
a fair probability that ... evidence of a crime will be found in a particular place.”).

7 Def. Counsel’s Aff., Ex. L (plea hearing transcript), at 7-8.

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his case and his potential sentencing exposure; and (e) Woloshin had explained the
plea forms, discussed with him the evidence in his case, and reviewed with him any
possible defenses.*°

(19) While pending sentencing, Adkins sent his own letter to the Court
disavowing certain evidence and advocating a sentence less than that to which he
had agreed.*’? The Court inquired about this letter and questioned whether Adkins
was seeking to withdraw his plea.** After again consulting with Woloshin, Adkins
decided to move forward with sentencing.°?

(20) Put simply, there is nothing to suggest duress or coercion in Adkins’
proceedings. A review of the guilty plea colloquy confirms that Adkins’ decision to
plead guilty was knowing, voluntary, and the product of an intelligent decision made
with an adequate opportunity to discuss all aspects of his case with Woloshin.””

There being no clear and convincing contrary evidence, Adkins is bound by his

 

‘ Id. at 8-20.

2 Def. Counsel’s Aff., Ex. O (Atkins’s post-plea letter).

7 Def. Counsel’s Aff., Ex. P (sentencing hearing), at 4-8.

39 Id. (confirming Woloshin and Atkins had discussed his letter prior to the sentencing

hearing and noting their final in-court consultation).

7 See Def. Counsel’s Aff., Ex. L (plea hearing transcript), at 7-20.

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answers recorded on the guilty plea forms and given during his colloquies both when
entering the plea and when questioned about whether he sought to withdraw it.*!

(21) There is no such clear and convincing contrary evidence. Rather, the
record of the court proceedings is amply supported by that now developed on
postconviction. Contrary to Adkins’s contentions, the evidence demonstrates that
Woloshin fully investigated, considered, and employed reasonable defense
options—including “proper” suppression arguments. Woloshin met with Adkins
regularly pre-trial, engaged him in multiple discussions of the evidence, and
reviewed with him numerous potential defenses. Woloshin thoroughly explained
and even visually charted out Adkins’ sentencing exposure.*? And, while preparing
for the scheduled suppression hearing and potential trial, Woloshin also met her
concomitant obligation to negotiate a plea that, while not wholly to Adkins’ liking,
resulted in a very favorable joint sentencing recommendation.”

(22) “A criminal defense attorney must provide truthful information and

informed legal advice; not just mouth what her client may want to hear. Doing so is

 

7 See Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Smith v. State, 1996 WL 21050
(Del. Jan. 5, 1996).

7 Def. Counsel’s Aff., Ex. J (Woloshin Ltr. to Atkins, Oct. 12, 2017).

2 See Missouri v. Frye, 566 U.S. 134, 143 (2012) (“The reality is that plea bargains have
become so central to the administration of the criminal justice system that defense counsel have
responsibilities in the plea bargain process, responsibilities that must be met to render the adequate
assistance of counsel that the Sixth Amendment requires in the criminal process at critical
stages.”).

“p=
required; not objectively unreasonable. It is instead precisely the professional
behavior expected of Delaware counsel.”** On this basis alone—i.e., failure to show
that Woloshin’s performance was in any way deficient—Adkins’ claims seeking
vacatur of his guilty plea must be denied.”

(23) Adkins’ plea colloquy evidences that his decision to enter a plea of guilt
was knowing, voluntary, and the product of an intelligent decision made with

6 There is simply no

Woloshin’s reasonable professional advice and guidance. *
evidence of substandard representation or “coercion” here. And so, Adkins’ claim
of ineffective assistance must fail.

(24) Adkins has not met his burden of demonstrating that Woloshin’s
representation fell below an objective standard of reasonableness or that, but for

counsel’s errors, he would not have pleaded guilty and instead proceeded to trial.

Accordingly, Adkins’ Motion for Postconviction Relief must be DENIED.

 

“4 State v. Dillard, 2019 WL 118437, at *5 (Del. Super. Ct. Jan. 4, 2019) (internal citation
omitted).

. Strickland, 466 U.S. at 687 (“This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.”); State v. McGlotten, 2011 WL 987534, at *4 (Del. Super. Ct. Mar. 21, 2011) (“To
restate the requirements of Strickland, a defendant must establish two things, not just one: that trial
counsel's performance was deficient and that but for that deficiency, the outcome of the
proceedings would have been different. If a defendant cannot establish both prongs, then the
ineffective assistance of counsel claim fails.”) (emphasis in original).

> Def. Counsel’s Aff., Ex. L (plea hearing transcript).

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SO ORDERED this+6th day of JAnly, 2019.

Ln

Paul R. Wallace, Judge

 

Original to Prothonotary
cc: Timothy G. Maguire, Deputy Attorney General

Natalie S. Woloshin, Esquire
Timothy J. Adkins, pro se

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