IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

V.
Cr. ID. No. 82002234DI

BRUCE J. CARR,

Nee Nee Nee Nee Nee “ee eee”

Defendant.

Submitted: November 18, 2019
Decided: January 13, 2020

Upon Commissioner’s Report and Recommendation

That Defendant’s Motion for Postconviction Relief
Should Be Summarily Dismissed

ADOPTED

ORDER

This 13" day of January 2020, the Court has considered Defendant’s
Objection to the Commissioner’s Report and Recommendation, Commissioner’s
Report and Recommendation, Defendant’s Motions for Postconviction Relief, and

the relevant proceedings below.

In 1982, a Superior Court jury convicted Defendant Bruce J. Carr on counts

of kidnapping, rape and attempted rape. Defendant was sentenced to six
consecutive life terms plus forty years. On November 9, 1983, on direct appeal,

the Delaware Supreme Court affirmed Defendant’s conviction and sentence.!

On August 8, 2019, Defendant filed a pro se Motion for Postconviction
Relief. Defendant’s motion was referred to a Superior Court Commissioner in
accordance with 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for
proposed findings of fact and conclusions of law. The Commissioner issued the
Report and Recommendation on November 4, 2019, recommending that
Defendant’s Motion for Postconviction Relief be summarily dismissed. On

November 18, 2019, Defendant filed an Objection to the Commissioner’s Report.

Postconviction Relief

Defendant makes only one argument regarding his Motion for
Postconviction Relief: ineffective assistance of counsel. It is noted that, regardless

of procedural bars, Defendant’s claim is without merit.

In order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and that the deficiencies in counsel’s representation caused the

defendant actual prejudice.* Mere allegations of ineffectiveness will not suffice. A

 

' Carr v. State, Del. Supr. No. 322, 1982, Horsey, J. (November 9, 1983) (Order).
2 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278,
1278 (Del. 2000).
defendant must make and substantiate concrete allegations of actual prejudice.’

Great weight and deference are given to tactical decisions by the trial attorney.‘

Defendant argues that defense counsel was ineffective for failing to inform
Defendant of a plea deal allegedly offered by the State. Defendant cites Sewell v.
State, wherein this Court ruled that “defense counsel has the duty to communicate
plea offers to a client.”> Defendant is correct that defense counsel has a duty to
communicate plea offers to a client.° Nevertheless, Defendant fails to satisfy the
burden imposed on defendants seeking postconviction relief where defense counsel
has failed to communicate a plea offer to a client:

Where defense counsel has failed to comply with his duties to a client

regarding plea negotiations, a defendant must show that but for the

ineffective advice of counsel there is a reasonable probability that the
plea offer would have been presented to the court (i.e., that the
defendant would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances), that the court
would have accepted its terms, and that the conviction or sentence, or

both, under the offer's terms would have been less severe than under
the judgment and sentence that in fact were imposed.’

In Defendant’s letter dated April 20, 1982, Defendant wrote that “[Defense
counsel]...wanted me to take a plea of guilt, and I denied.”® If defense counsel had

received a plea offer, Defendant, by his own admission, refused it. It is clear from

 

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

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

> 2018 WL 3409661, at *3 (Del. Super.).

° Id. (citing Missouri v. Frye, 566 U.S. 134, 145 (2012)).

’ Id. (citing Lafler v. Cooper, 566 U.S. 156, 164 (2012)) (emphasis added).

8 Superior Ct. D.I. 87, Letter from Defendant to Hon. Robert C. O’Hara (Apr. 20, 1982).

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Defendant’s April 20, 1982 letter that Defendant was not interested and would
have refused to accept the State’s offer. Defendant even used this alleged
communication of a plea deal as part of the basis for his request for new counsel.’
Thus, even if the Court assumes Defendant’s allegations are true, Defendant lacks

an explanation as to how Defendant was prejudiced.

Defendant also fails to substantiate his allegations. Defendant merely notes
the lack of a record of Defendant’s refusal to take the plea in “the Court Docket or
official file or in the files of the Attorney General Offices.”!° The record before
the Court does appear to show that Defendant never received a plea offer. It also
shows no apparent discrepancy between Defendant’s current contention that
defense counsel never informed Defendant of a plea offer, and defense counsel’s

own statement.

In response to Defendant’s April 20, 1982 letter, defense counsel explicitly
denied ever communicating a plea offer to Defendant. In a letter dated April 30,
1982, defense counsel noted that “regarding [Defendant]’s claim that I said he was
guilty of committing criminal acts, that is patently untrue. In addition, I did not

advise him to take any plea, which he claims he refused, in that there had been no

 

? Id.
10 Defendant’s Opp. to Comm’r Rep. at 4 (Nov. 14, 2019).

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plea-offer extended.”"' In this case, it appears that Defendant cannot locate any
record in any office or file where one would be kept because no plea offer ever
existed. It is further noted that the State has no legal obligation to offer a plea to

less than the charged offense.”

The record fails to support Defendant under any light. Either defense
counsel communicated a plea offer, which Defendant admittedly rejected, or the
State never made a plea offer. Regarding the merits of Defendant’s Motion for
Postconviction Relief, Defendant has failed to substantiate allegations that defense
counsel concealed or failed to communicate to Defendant a plea deal. Defendant
also omits an explanation as to any prejudice that alleged failure would have

caused. Thus, Defendant’s Motion for Postconviction Relief has no merit.

Procedural Bars

Aside from addressing the substantive merits of any claim for postconviction

relief, the Court must determine whether the defendant has met the procedural

 

'! Letter from Defense Counsel to Hon. Robert C. O’Hara, at 2 (Apr. 30, 1982) (emphasis
added).

12 State v. Grossberg, 1998 WL 473030, at *1 (Del.); see also Bordenkircher v. Hayes, 434 U.S.
357, 363 (1978) (“Plea bargaining flows from ‘the mutuality of advantage’ to defendants and
prosecutors, each with his own reasons for wanting to avoid trial.” (quoting Brady v. United
States, 397 U.S. 742, 752 (1970))).
requirements of Superior Court Criminal Rule 61.'° If a procedural bar exists, then

the claim is barred.'4

Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed
within one year of a final order of conviction;'° (2) any basis for relief must be
asserted in the first timely-filed motion for postconviction relief absent exceptional
circumstances; (3) any basis for relief must have been asserted at trial or on direct
appeal; and (4) any basis for relief must not have been formally adjudicated in any

proceeding.

Defendant’s Motion for Postconviction Relief is time-barred. Rule 61(i)(1)
requires Defendant to file his Motion for Postconviction Relief within one year of a
final order of conviction.’ Defendant was sentenced in 1982, and the Supreme
Court confirmed his conviction and sentencing on November 9, 1983.'7 On
August 8, 2019, Defendant filed this Motion for Postconviction Relief. The nearly
36 years between Defendant’s final order of conviction and his motion exceeds the

Rule 61 one-year limit.

 

3 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

14 Id.

'5 Super. Ct. Crim. R. 61(i)(1).

'6 Super. Ct. Crim. R. 61(i)(1).

'7 Carr v. State, Del. Supr. No. 322, 1982, Horsey, J. (November 9, 1983) (Order).

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Rule 61(i)(2) further prevents this Court from considering Defendant’s
claims raised that were not raised in Defendant’s first timely-filed Motion for

Postconviction Relief. This is Defendant’s eleventh Rule 61 motion.'8

In his motion, Defendant cites Rule 61(i)(5), which provides that the bars to
relief are inapplicable, and Defendant may overcome procedural hurdles, where
Defendant establishes that: (1) the court lacked jurisdiction; (2) new evidence
exists that creates a strong inference that Defendant is actually innocent of the
underlying charges for which Defendant was convicted; or (3) a new rule of
constitutional law made retroactive to Defendant’s case would render his

convictions invalid.!?

Defendant fails to demonstrate that his otherwise procedurally barred motion
should survive based on any exception. Defendant asserts that his constitutional
rights have been violated, but fails to raise a new constitutional law or one
applicable to this case. Defendant does not argue that the court lacked jurisdiction.

Defendant does not raise any new or recently-discovered evidence, or any evidence

 

18 See State v. Carr, 2017 WL 4286201, at *1 (Del. Super.) (noting that Defendant’s Rule 61
Motion for Postconviction Relief filed on September 11, 2017 was his tenth Rule 61 motion).
'9 Super. Ct. Crim. R. 61(i)(2) & (5).
that creates a strong inference that Defendant is innocent. On the contrary,

Defendant admitted his guilt in a previous Rule 35 Motion. *°

Having been provided with a full and fair opportunity to present any issue in
his first timely-filed motion, Defendant’s claims are procedurally barred. Further,
Defendant has not established any prejudice to his rights and/or cause for relief.
Therefore, Defendant’s Motion for Postconviction Relief is hereby SUMMARILY

DISMISSED.

 

2° Superior Ct. D.I. 88, Pet’n for Modification of Sentence, at 3 (May 22, 1991) (Reasons Why
Carr’s Sentence Should be Modified, “Petitioner has admitted his involvement in the offenses
and expressed remorse.”).
CONCLUSION
The Court holds that the Commissioner’s Report and Recommendation
dated November 4, 2019 should be adopted for the reasons set forth therein. The
Commissioner’s findings are not clearly erroneous, are not contrary to law, and are

not an abuse of discretion.?!

THEREFORE, after careful and de novo review of the record in this action,
the Court hereby adopts the Commissioner’s Report and Recommendation in

its entirety. Defendant’s Motion for Postconviction Relief is hereby

SUMMARILY DISMISSED.

IT IS SO ORDERED.

 

The Honorable Mary M. Johnston

 

21 Super. Ct. Crim. R. 62(a)(4)(iv).
