IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. # 1408014208

V.

DAVEION JOHNSON,

\_/\/\,/\/\/\/\,/

Defendant.

Submitted: Novernber 10, 2016
Decided: February 7, 2017

Upon Defendant’s Motion for Post-Conviction Relief: DENIED

This 7th day of February, 2017, upon consideration of Defendant’s Motion
for Post-Conviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”) and the record in this case, it appears to the Court that:
FACTUAL AND PROCEDURAL BACKGROUND

1. Daveion Johnson, and his co-defendant, Jayjuan Craig, were indicted
on October 13, 2014 on charges of Horne Invasion, Burglary First Degree, two
counts of Robbery First Degree, Offensive Touching, Assault Third Degree,
Conspiracy Second Degree, four counts of Possession of a Firearm During the
Commission of a Felony (“PFDCF”), Carrying a Concealed Deadly Weapon,
Possession of a Firearm by a Person Prohibited, and additional Weapons charges.1

2. Albert J. Roop, V (“Trial Counsel”) represented Johnson from his

preliminary hearing through sentencing. The charges in this case Were investigated

 

1 D.I. 2.

by the Elsmere Police Department, Who developed Johnson’s co-defendant,
Jayjuan Craig, as a suspect in a home invasion and robbery.2 The investigating
officer obtained a Warrant to search Craig’s residence When they Were
approaching the residence to execute the Warrant, officers observed a man, later
identified as Johnson, laying down in a vehicle parked in close proximity to the
residence.3 Officers detained Johnson and observed contraband in the vehicle,
including ammunition After cross-examining the officer Who detained Johnson,
Trial Counsel concluded there Was no basis to file a motion to suppress because,
under the circumstances of the investigation, Johnson’s detention and arrest, as
Well as the related search, Were reasonable.4 Trial Counsel avers he informed
Johnson of this conclusion When explaining Why a motion to suppress Would not
be fruitful in this case.5

3. Johnson pleaded guilty on March 10, 2015 to one count each of Home
Invasion, PFDCF, Robbery First Degree, and Conspiracy Second Degree, In
connection With his plea, Johnson signed a Truth-in-Sentencing Guilty Plea form
in Which he denied that he had been promised anything in exchange for his plea,

including What sentence he Would receive.6 Johnson also acknowledged on the

 

2 D.I. 21 at 3.
3 Id.

4 Id. at 4.

5 Id.

6 D.1.9.

form that he was satisfied with his lawyer’s representation and that he had been
fully advised of his rights.

4. Before accepting Johnson’s plea, the presiding judge engaged in a
colloquy with Johnson regarding his decision to plead guilty and the rights he was
waiving. During that hearing, Johnson acknowledged signing the Truth-in-
Sentencing form and confirmed that he reviewed the form with Trial Counsel and
answered the questions truthfully.7 The presiding judge also reviewed with
Johnson the four charges to which he was pleading guilty and Johnson admitted
committing each of those crimes.8 The judge reviewed with Johnson the
constitutional rights he was waiving by pleading guilty, as well as the potential
sentence he was facing as a result of the guilty plea, which was a minimum of 12
years and a maximum of 77 years at Level V.9 Johnson agreed that he accepted the
guilty plea, at least in part, to avoid the 26-year minimum mandatory sentence he
would have faced if he was convicted at trial of all counts in the indictment.10 The
presiding judge then stated to Johnson:

Now, Mr. Johnson, it’s important for you to understand that right

now[] you’ve got thelCourt’s undivided attention. If there’s anything

that’s bothering you about this plea, if there ’s anything that’s

bothering you about Mr. Roop’s representation of yoa, the way he’s
treated you, if you have any questions about what you’re doing, now

 

7 Sm¢e v. Johnson, ID No. 1408014208, at 8-9 (Del. super. Mar. 10, 2015) (TRANSCRIPT).
8 Id. at 6-8.

9 Id. at 9-10.

1°1¢1. at11-12.

is the time to ask them, because once the plea is accepted, the Court
will be much less interested in what you’ll have to say about the plea
than it is right now. ls there anything that we need to talk a|:)out?ll

Johnson responded “No.”12 The judge thereafter accepted Johnson’s plea, finding
it was knowing, intelligent, and voluntary, and that there was a factual basis for
it.13

5. The Court then ordered a pre-sentence investigation As part of the
plea agreement, Johnson agreed to testify truthfully against his co-defendant,
Jayjuan Craig.14 Trial Counsel states he informed Johnson that, if he cooperated
and testified truthfully against Craig, the State might consider filing a “substantial
assistance motion” to reduce the mandatory sentence Johnson was facing.15 The
State advised Johnson similarly. According to Trial Counsel, however, Johnson
was not cooperative and his statements during trial preparation were not consistent

6 The State ultimately

with the statements he gave to police before his plea.1
decided not to call Johnson at Craig’s trial.
6. On the morning of Craig’s trial, unexpected issues with trial witnesses

prompted the State to offer Craig a plea that was better than any offered Johnson.

As a result, the State entered a nolle prosequi on Johnson’s Robbery First charge,

 

11 Ia’. at 12 (emphasis added).

12
Id.

13 Id. at 13.

14 D.l. 9.

15 Roop Af"l". at 2 n.1

16 Ia'. In the plea agreement, Johnson agreed that the statements he previously gave police were

truthful.

thereby reducing his mandatory sentence to nine years.17 Johnson was sentenced on
July 17, 2015 as follows: (i) as to the Home Invasion charge, six years at Level V,
followed by periods of partial incarceration and probation; (ii) as to the PFDCF
charge, three years at Level V, and (iii) as to the Conspiracy charge, two years at
Level V suspended for one year at Level III.18 In other words, Johnson’s
unsuspended Level V time was the minimum sentence required by Delaware law.
Johnson’s sentence was effective August 18, 2014.

7. Johnson filed this Motion for post-conviction relief on March 24,
2016.19 In it, he alleged he was entitled to relief because (i) Trial Counsel was
ineffective by failing to file a motion to suppress evidence, (ii) there was no
probable cause for Johnson’s arrest or the associated search and seizure, and (iii)
Trial Counsel promised Johnson he would receive a more lenient sentence. The
Court ordered Trial Counsel to respond to the Motion by affidavit and further

ordered the State to respond after Trial Counsel’s affidavit was filed.20 Finally, the

 

17 Id_

18 State v. Johnson, lD No. 1408014208, Cr. A. Nos. IN14-08-1820, IN14-08-1819, IN14-08-
1825 (Del. Super. July 17, 2015) (SENTENCING ORDER). A corrected sentencing order was
issued on August 12, 2015 to correct the amount of restitution and the date the sentence was
imposed See D.l. 17.

1° I).l. 18.

20 D.1.21,24.

Court granted Johnson time to respond to the submissions by Trial Counsel and the
State. Johnson filed no response.21
ANALYSIS
A. Procedural bars to Johnson’s claims

8. Before addressing the merits of any claim for post-conviction relief,
this Court first must determine whether the motion procedurally is barred under
Rule 61.22 A motion for post-conviction relief may be barred for timeliness and
repetition, among other things. A motion filed under Rule 61 is untimely if it is
filed more than one year after a final judgment of conviction.23 A defendant also is
barred from filing successive motions for post-conviction relief.24 The rule further
prohibits motions 'based on any ground for relief that was not asserted in the
proceedings leading up to the judgment of conviction, unless the movant
demonstrates “cause for relief from the procedural default” and “prejudice from

5525

violation of the movant’s rights. Finally, the rule bars consideration of` any

ground for relief that previously was adjudicated in the case.26

 

21 Johnson sent a “progress report” to the sentencing judge on October 31, 2016, but that letter
did not address his post-conviction motion.

22 Bailey v. srare, 588 A.2d 1121, 1127 (Dei. 1991); Younger v. sm¢e, 580 A.zd 552, 554 (Del.
1990)

23 super ct crim. R. 61(1)(1).

24 Ia’. 61(i)(2); see id. 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive
motions).

25 Id. 61(1)(3).

26 Id. 61(1)(4).

9. Notwithstanding the aforementioned procedural bars, this Court may
consider a motion that otherwise is barred if the motion is based on claims that the
Court lacked jurisdiction or the motion satisfies the pleading requirements set forth
in Rule 61(d)(2).27 Rule 61(d)(2) requires that the movant plead with particularity
that (i) new evidence exists that creates a strong inference that the movant actually
is innocent in fact of the acts underlying the charges of which he was 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.

10. Johnson’s Motion was filed less than a year after his sentence became
final, and it therefore is timely. The Motion alleges ineffective assistance of
counsel, which could not be raised at any earlier stage in the proceedings28 As
explained below, Johnson’s other claims for relief have been waived.

B. Johnson’s claim of ineffective assistance of counsel

11. Johnson contends Trial Counsel was ineffective because he failed to
move to suppress evidence obtained during Johnson’s arrest. Johnson asserts his
arrest, and the associated search, was not supported by probable cause, arguing he

“requested numerous times” that Trial Counsel “file a suppression hearing with

 

27 Id. 61(1)(5).
28 Whmle v. Srare, 138 A.3d 1149 (Del. 2016); stare v. Evan-Mayes, 2016 wL 4502303, at *2
(Del. Super. Aug. 25, 2016).

grounds being illegal detention, arrest, search[,] and seizure,” but that Trial
Counsel “refilsed without just argument.”29

12. To prevail on a post-conviction claim for ineffective assistance of
counsel in the context of a guilty plea, a defendant must establish that (i) counsel’s
representation fell below an objective standard of reasonableness, and (ii) but for
counsel’s unprofessional errors, there is a reasonable possibility the defendant
would not have pleaded guilty and instead would have insisted on going to trial.30
There is a strong presumption that counsel’s representation was reasonable.31
Accordingly, a defendant must make specific allegations of actual prejudice and
substantiate them; vague allegations or conclusory statements will not suffice.32

13. Trial Counsel’s affidavit indicates he considered filing a motion to
suppress, but determined there was no good-faith basis to do so after examining the
record. Under the circumstances of this case, this Court will not second-guess
Trial Counsel’s informed strategic decision. Thus, Johnson’s contentions do not
meet the first element of ineffectiveness, because he cannot show that Trial
Counsel’s representation fell below an objective Standard of reasonableness

Moreover, Johnson specifically was asked, both on the Truth-in-Sentencing Guilty

Plea form and by the judge who accepted his plea, whether he had any objections

 

29 D.I. 18 613.

1°Albury v. sra¢e, 551 A.2d 53, 59(1)61. 1988).

31 Wrighrv. Smre, 671 A.2<11353, 1356 (De1. 1996).

32 Ia’.; Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015).

8

or concerns as to Trial Counsel’s representation The presiding judge advised
Johnson that the forum to raise any concerns regarding representation was at the
guilty plea hearing and that raising the argument later would prove difficult
Johnson nonetheless confirmed, both in writing and in his oral representations to
the Court, that he was satisfied with Trial Counsel’s representation A defendant is
bound by the statements he gives during the plea colloquy absent clear and
convincing evidence that he did not understand the plea agreement, was forced to
accept the plea, or was not satisfied with counsel’s representation33 Johnson has
not met this heightened standard In fact, Johnson has not advanced any
allegations challenging the presiding judge’s finding that the plea was knowing,
intelligent, and voluntary.
C. Johnson’s challenge to the arrest and search

14. Johnson next argues his arrest and search were illegal and the

evidence obtained against him should be suppressed as a result. Johnson, however,

4

waived this claim of error by pleading guilty.3 Johnson’s Motion therefore is

denied as to this claim.

 

33 somerville v. S¢a¢e, 703 A.2d 629, 632 (Del. 2008).

34 See Cooper v. State, 2008 WL 2410404, at *1 (Del. June 16, 2008) (holding a guilty plea
waives any claims based on errors or defects that occurred before entry of the plea); Miller v.
State, 840 A.2d 1229, 1232 (Del. 2003) (same).

9

D. Johnson’s claim of an “unfulfilled plea agreement”

15. Finally, Johnson argues Trial Counsel “promised [him] he would
receive a more lenient sentence of 6 years Level 5, the same as [Craig].”35 lt is not
clear whether this claim is one for ineffective assistance of counsel or simply a
claim that the sentence Johnson received was not consistent with the plea
agreement Either way, the claim lacks merit. To the extent Johnson contends
Trial Counsel was ineffective because he promised Johnson he would receive a
particular sentence, this claim is belied by Johnson’s sworn statements in the
Truth-in-Sentencing form and during the plea colloquy, statements to which
Johnson is bound. The presiding judge repeatedly explained to Johnson that he
was facing a 12-year minimum-mandatory sentence, and Trial Counsel’s affidavit
explains that he advised Johnson that the State might consider filing a motion to
reduce that mandatory sentence only in the event Johnson provided substantial
assistance at Craig’s trial. Therefore, Johnson has not met either prong of the
ineffective assistance standard. To the extent Johnson is arguing he had an
unwritten agreement with the State for a six-year sentence, that argument also is
contradicted by the forms Johnson signed and by his statements during the plea
colloquy, to say nothing of the fact that neither the State nor defense counsel could

“promise” Johnson a particular sentence,

 

33D.1. 18 at3.
10

For all the foregoing reasons, Daveion Johnson’s Motion for Post-

Conviction Relief is DENIED. IT IS SO ORDERED.

 

aii l\/[. LeGroW Judge

Original to Prothonotary

cc: Mark A. Denney, Jr., Deputy Attorney General
Albert J. Roop, V, Deputy Attorney General
Daveion Johnson, pro se (SBI No. 00671041)

11

