           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                              IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE                                    )
                                                     )      I.D. No. 30206697DI
           v.                                        )
                                                     )
JONATHAN M. WONNUM                                   )
                                                     )
                             Defendant               )


                                             Submitted: April 4, 2014
                                              Decided: July 3, 2014

                  Upon Defendant’s Second Motion for Postconviction Relief.
                                        DENIED.

                                                    ORDER

Scott D. Goodwin, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Jonathan M. Wonnum, Smyrna, Delaware, pro se.

COOCH, R.J.

      This 3rd day of July 2014, upon consideration of Defendant’s Second Motion
for Postconviction Relief, it appears to the Court that:

           1.       Defendant Jonathan M. Wonnum (“Defendant”) filed this Second
                    Motion for Postconviction Relief based on his apparent belief that his
                    trial counsel was ineffective during his plea negotiation process and
                    that he was wrongly denied counsel during his subsequent
                    postconviction proceedings. He asks the Court to revisit his plea
                    negotiations as well as his First Motion for Postconviction Relief
                    addressing same. 1



1
    Def.’s Mot. for Postconviction Relief.
         2.       Defendant’s first trial for First Degree Murder and Possession of a
                  Deadly Weapon During the Commission of a Felony ended in a
                  mistrial on the murder charge. The jury convicted Defendant on the
                  weapon charge but deadlocked eleven to one in favor of conviction as
                  to the murder. 2

         3.       On August 9, 1993, the morning of Defendant’s retrial, Defendant
                  pleaded guilty to First Degree Murder. As a result of the plea, the
                  State set aside the verdict on the weapon charge. 3 The Court
                  conducted a thorough plea colloquy and was satisfied that the guilty
                  plea was “knowingly, voluntarily and intelligently offered.” 4

         4.       Before his sentencing, Defendant submitted a pro se letter asking to
                  withdraw his guilty plea. He claimed he was “forced” into taking the
                  plea. 5 After considering the letter as a Motion to Withdraw his guilty
                  plea and a thorough review of the record, this Court denied the
                  motion.6 It held that “Defendant’s request to withdraw guilty plea
                  amounts merely to a change of mind of Defendant and does not
                  demonstrate that the plea was involuntary or that Defendant was
                  otherwise mistaken about his legal rights.”7 Defendant was sentenced
                  to life in prison without the possibility of parole the next day and did
                  not appeal.8

         5.       Defendant, pro se, filed his First Motion for Postconviction Relief in
                  1996. In it, he again claimed issues with his guilty plea. He also
                  claimed he was denied access to transcripts of his first trial.9 This
                  Court denied his Motion as previously adjudicated as to the guilty
                  plea and found his transcript arguments “completely conclusory.” 10
                  The Delaware Supreme Court affirmed this Court’s denial on
                  appeal. 11



2
  Wonnum v. State, 1997 WL 588855, at *1 (Del. Sep. 16, 1997) (ORDER).
3
  Id.
4
  State v. Wonnum, No. IN92-09-0496, 0497 at 15 (Del. Super. Aug. 9, 1993) (TRANSCRIPT) (hereinafter “Plea
Transcr.”).
5
  State v. Wonnum, Docket # 22, at 2 (Del. Super. Sep. 14, 1993) (ORDER).
6
  Id.
7
  Id. at 6. This Court’s Order on his Motion to Withdraw discusses, at length, several passages from Defendant’s
plea colloquy where he had the opportunity to alert the court to any coercion or misunderstanding in regards to his
plea. Additionally, a fresh review of the transcript reveals several instances where the Court requested clarification
from trial counsel, or further answers from Defendant to confirm the voluntariness of his plea. Plea Transcr. at 5, 9.
8
  Wonnum, 1997 WL 588855, at *1.
9
  Def.’s First Mot. for Postconviction Relief, Docket #30 (Aug. 26, 1996).
10
   State v. Wonnum, Docket #34, (Del. Super. Feb. 26, 1997) (ORDER).
11
   Wonnum, 1997 WL 588855.
                                                          2
        6.       Defendant has now filed a Second Motion for Postconviction Relief. 12
                 He again claims ineffective assistance of counsel relating to his guilty
                 plea, now claiming he was “tricked” into taking it. Defendant’s
                 second ground requests counsel and claims that the absence of counsel
                 during his first motion establishes its own ineffective assistance
                 claim. 13 Defendant’s request for counsel was DENIED in the April
                 24, 2013 Order of Briefing issued by the Court.14

        7.       Under the Delaware Superior Court Rules of Criminal Procedure, a
                 Motion for Postconviction Relief can be barred for time limitations,
                 repetitive motions, procedural defaults, and former adjudications. 15 A
                 motion exceeds time limitations if it is filed more than one year after
                 the conviction is finalized or they assert a newly recognized,
                 retroactively applied right more than one year after it is first
                 recognized.16 A motion is considered repetitive and therefore barred if
                 it asserts any ground for relief “not asserted in a prior postconviction
                 proceeding.” 17 Repetitive motions are only considered if it is
                 “warranted in the interest of justice.” 18 Grounds for relief “not asserted
                 in the proceedings leading to the judgment of conviction” are barred as
                 procedural default unless movant can show “cause for relief” and
                 “prejudice from [the] violation.” 19 Grounds for relief formerly
                 adjudicated in the case, including “proceedings leading to the judgment
                 of conviction, in an appeal, in a postconviction proceeding, or in a
                 federal habeas corpus hearing” are barred.20 Former adjudications are
                 only reconsidered if “warranted in the interest of justice.” 21


12
   Defendant first filed his Second Motion for Postconviction Relief on March 20, 2013 and an Order of Briefing
was issued. Or. of Briefing, Docket #43 (Apr. 24, 2013). Trial counsel submitted his affidavit, to which Defendant
replied. Def.’s Reply to Aff., Docket #48 (July 31, 2013). Defendant then filed a Motion for Default, as the State
failed to file their Response by the August deadline. Def.’s Mot. for Default, Docket #50 (Sep. 26, 2013). This
Court denied that motion in a letter issued October 9, 2013 citing personnel changes at the Department of Justice,
and extended the State’s deadline to November 29, 2013. Ltr. dated Oct. 9, 2013 from the Court to Mr. Grubb and
Mr. Wonnum, Docket #52 (Oct. 10, 2013). In that same letter, the Court further explained its denial of Defendant’s
request for counsel based on recently amended Rule 61, stating the new procedure only applies to first
postconviction motions filed after the effective date of May 6, 2013. Id. Defendant also filed a subsequent Motion
for Expansion of Record that was DENIED and a Motion for Expansion of Time that was GRANTED. Or., Docket
#57 (Dec. 24, 2013); Order, Docket #59 (Jan. 13, 2014).
13
   Def.’s Mot. for Postconviction Relief. In his Reply and subsequent letters to the Court, Defendant alleges
unconscionability, “manifest injustice, “collusion” by all parties (including the Defendant himself), and
“intimidation” contributed to his guilty plea. Def.’s Reply at 2, 4, 10-13.
14
   Or. of Briefing, Docket #43 (Apr. 24, 2013).
15
   Super. Ct. Crim. R. 61(i).
16
   Super. Ct. Crim. R. 61(i)(1).
17
   Super. Ct. Crim. R. 61(i)(2).
18
   Id.
19
   Super. Ct. Crim. R. 61(i)(3).
20
   Super. Ct. Crim. R. 61(i)(4).
21
   Id.
                                                        3
         8.       Before addressing the merits of this Second Motion for Postconviction
                  Relief, the court must first apply the procedural bars of Superior Court
                  Criminal Rule 61(i). 22 If a procedural bar exists, then the Court will
                  not consider the merits of the postconviction claim. 23

         9.       Defendant’s Motion is procedurally barred in several ways. First,
                  Defendant’s motion was filed more than one year after Defendant’s
                  conviction was finalized thirty days after his sentencing on September
                  15, 1993 and is therefore time-barred under Rule 61(i)(1).24 This
                  motion was filed more than twenty years after sentencing and
                  Defendant provides no evidence of a newly recognized, retroactively
                  applied right. Defendant originally appeared to argue he had a
                  retroactively applied right to counsel based on Martinez v. Ryan, 25
                  however in his Reply he seems to have abandoned that argument. 26 In
                  any event, Martinez “did not create a new right such as to qualify as
                  means of relief from the procedural bar of Rule 61(i)(1). Further, since
                  Martinez did not establish a new constitutional right, it cannot be
                  applied retroactively.” 27

         10.      In addition, Defendant’s claims as to ineffective assistance of counsel
                  during his plea negotiations are procedurally barred as previously
                  adjudicated. This is the third time the Court has been asked to address
                  the same circumstances surrounding Defendant’s guilty plea. The
                  Court has addressed, and rejected, all of Defendant’s arguments as to
                  the plea in previous motions. Simply altering the language from
                  “forced” to “tricked” does not change the fact that Defendant’s
                  arguments have already been decided in this Court.28 Likewise, the
                  cases Defendant points to of other defendants who have received, in his
                  opinion, more beneficial plea agreements do not change the fact that
                  the Court has found that Defendant “knowingly, voluntarily and
                  intelligently” accepted his plea and found no compelling reason to
                  revisit that decision in the past twenty years. 29

22
   Younger v. State, 580 A.2d 552, 554 (Del. 1990).
23
   Id.
24
   Super. Ct. Crim. R. 61(m)(1) (“A judgment of conviction is final for the purpose of this rule …[i]f the defendant
does not file a direct appeal, 30 days after the Superior Court imposes sentence”).
25
   132 S.Ct. 1309 (2012).
26
   Def.’s Reply at 4. Instead, Defendant argues he relies on “the Delaware Constitution and the U.S. Constitution,
and the rationale underlying Martinez.”
27
   State v. Travis, 2013 WL 1196332, at *3 (Del. Super. Mar. 25, 2013), aff'd sub nom., Anderson v. State, 69 A.3d
370 (Del. 2013) and aff'd, 69 A.3d 372 (Del. 2013).
28
   Younger, 580 A.2d 552, 556 (“Neither federal nor state courts are required to relitigate in postconviction
proceedings those claims which have been previously resolved.”)
29
   Wonnum, 1997 WL 588855, State v. Wonnum, Docket #34, (Del. Super. Feb. 26, 1997) (ORDER), State v.
Wonnum, Docket # 22, at 2 (Del. Super. Sep. 14, 1993) (ORDER).
                                                          4
        11.     Even if the Court were to consider the “tricked” assertion as new, then
                it is barred as a repetitive motion under Rule 61(i)(2) and the
                requirements of Rule 61(b)(2). Defendant would have had knowledge
                of the ground when he filed his original postconviction motion and his
                failure to include it bars further consideration.

        12.     Defendant’s second ground for postconviction relief claims ineffective
                assistance of counsel in that he had no counsel during his first
                postconviction proceeding. 30 This claim, assuming arguendo that it is
                not time-barred or previously adjudicated as part of his original
                ineffective assistance claims, is barred as a procedural default. If this
                ground is indeed new, Defendant fails to show “cause for relief” and
                “prejudice from [the] violation” other than bald assertions that he was
                denied an alleged litany of state and federal constitutional rights when
                the court denied him counsel. On the contrary, the Delaware Supreme
                Court has held that there is neither a federal nor a state constitutional
                right to counsel in a postconviction proceeding. The Supreme Court
                held in Roten v. State:

                        Contrary to Roten's contention, Martinez does not hold that there is
                        a federal constitutional right to counsel in first postconviction
                        proceedings. Furthermore, Roten misreads this Court's decision in
                        Holmes v. State. In Holmes, we held that the Superior Court abused
                        its discretion in denying Holmes' motion for the appointment of
                        counsel to assist him in his first postconviction proceeding. We
                        remanded for the appointment of counsel under the Superior
                        Court's new Criminal Rule 61(e), which allows for the
                        appointment of counsel in first postconviction proceedings. The
                        rule was adopted May 6, 2013 and is not retroactive. We did not
                        hold in Holmes that a right to counsel in first postconviction
                        proceedings exists as a matter of Delaware constitutional law. 31

                As such, Defendant’s arguments fail to overcome the bar of
                Rule 61(i)(3).

        13.     This Court finds the “interests of justice” 32 do not require any
                of the above procedural bars to be reversed. The Delaware
                Supreme Court has explained:
                        [T]he “interest of justice” exception provides two pathways to
                        demonstrate that a claim is not procedurally barred. The exception

30
   Def.’s Mot. for Postconviction Relief at 2.
31
   2013 WL 5808236, at *1 (Del. Oct. 28, 2013) (ORDER).
32
   Super. Ct. Crim. R. 61(i)(2)&(4).
                                                     5
                          applies when (1) “the previous ruling was clearly in error or there
                          has been an important change in circumstances, in particular, the
                          factual basis for issues previously posed,” or (2) there is an
                          “equitable concern of preventing injustice.”12 But the interest of
                          justice exception is narrow and will only be applied in limited
                          circumstances. 33

                 Defendant claims that “[u]ntil an attorney has briefed and
                 professionally presented all of the Defendant’s substantial claims of
                 consequential violations the interest of justice has not been served.” 34
                 Defendant is incorrect. As discussed above, there is no absolute right
                 to counsel in a postconviction proceeding. “Justice does not require
                 that an issue that has been previously considered and rejected be
                 revisited simply because the claim is refined or restated.” 35 His
                 substantial claims have been addressed by this Court and Defendant
                 provides no new evidence that warrants a reversal of the procedural
                 bars.

        14.      Defendant also asserts that he must overcome the procedural bars of
                 Rule 61 because he has “a colorable claim that there was a miscarriage
                 of justice because of a constitutional violation that undermined the
                 fundamental legality, reliability, integrity or fairness of the proceedings
                 leading to the judgment of conviction.” 36 “This exception to the
                 procedural bars is very narrow and is only applicable in very limited
                 circumstances.”37 However, “[a] claim of ineffective counsel in
                 violation of the Sixth Amendment to the United States Constitution, by
                 its very nature, qualifies as just such an exception.” 38 This Court finds
                 that Defendant has failed to show that he has “a colorable claim.”
                 Instead, Defendant relies on cases that either do not create a new right
                 to overcome the bar39 or bare assertions about his rights under “the
                 constitutional guarantee of equal protection of the laws under the
                 Federal Constitution and due process of law under both the Federal and
                 Delaware Constitutions.”40 Defendant argues again for a Martinez-like
                 decision, contending that “[t]he Defendant does not purport retro-
                 application, however, it would be unfair to not give retrospective

33
   Lindsey v. State, 2014 WL 2178453, at *3 (Del. May 27, 2014) (quoting Weedon v. State, 750 A.2d 521, 527-28
(Del. 2000).
34
   Def.’s Reply at 7.
35
   Riley v. State, 585 A.2d 719, 721 (Del. 1990) abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719
(1992).
36
   Super. Ct. Crim. R. 61(i)(5).
37
   State v. Wilmer, 2003 WL 751181 (Del. Super. Feb. 28, 2003), aff'd, 827 A.2d 30 (Del. 2003).
38
   Id.
39
   See discussion of Martinez, supra. See also Shockley v. State, 2013 WL 167005, at *2 (Del. Jan. 15, 2013)
(rejecting the argument that Lafler v. Cooper and Missouri v. Frye create a “new rule of law”).
40
   Def.’s Reply at 1-2.
                                                        6
                  consideration.”41 The Court finds these arguments unpersuasive to
                  apply the “very narrow” exception of Rule 61(i)(5). However, even a
                  review of Defendant’s claims on the merits shows that they must fail.

         15.      To successfully articulate an ineffective assistance of counsel claim, a
                  claimant must demonstrate first that counsel’s performance was
                  deficient. To prove counsel’s deficiency, a Defendant must show that
                  counsel’s representation fell below an objective standard of
                  reasonableness.42 “Mere allegations of ineffectiveness will not suffice.
                  A defendant must make specific allegations of actual prejudice and
                  substantiate them.” 43 “[A] court must indulge a strong presumption that
                  counsel's conduct falls within the wide range of reasonable professional
                  assistance.” 44 Secondly, a Defendant must demonstrate that the
                  deficiencies prejudiced the Defendant by depriving him or her of a fair
                  trial with reliable results. A successful Sixth Amendment claim of
                  ineffective assistance of counsel requires a showing “that there is a
                  reasonable probability that, but for counsel’s unprofessional errors, the
                  result of the proceeding would have been different.” 45

         16.      Defendant is mistaken when he argues that “[t]here is nothing in the
                  record to support a claim that counsel was adequate” to support his own
                  claim. The burden is on him, the Defendant, to overcome the strong
                  presumption that trial counsel’s representation was reasonable.
                  Defendant offers no evidence to support his claim other than his
                  feelings as to the inadequacy of his plea.46

         17.      It is clear from Defendant’s filings to the Court that he regrets
                  accepting his plea. However that regret and dissatisfaction with the
                  result does not negate the fact that he was thoroughly informed and
                  agreed to the consequences of the plea. Defendant now claims that he
                  was “tricked,” however a review of earlier papers reveals that he was
                  aware of the consequences of the plea, and agreed to it on the advice of
                  trial counsel that it may benefit an attempt at a pardon. 47 “In the
                  absence of clear and convincing evidence to the contrary, [Defendant]
                  must be bound by what he said at the time of his plea.”48 Defendant

41
   Def.’s Reply at 8.
42
   Strickland, 466 U.S. at 688.
43
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
44
   Strickland, 466 U.S. at 689.
45
   Id. at 694.
46
   “Under what definition of the word benefit would a plea to life (death in prison) sentence in exchange for vacating
a conviction on a weapons charge (a knife) fall? This is a classic case of Anti-Affluenza.” Def.’s Reply at 8.
47
   State v. Wonnum, Docket # 22, at 2 (Del. Super. Sep. 14, 1993) (ORDER).
48
   Fullman v. State, 560 A.2d 490 (Del.1989) (citing Little v. Allsbrook, 731 F.2d 238, 239-40 n.2 (4th Cir. 1984)).
                                                          7
                     fails to provide any support that his trial counsel acted unreasonably
                     during the plea process. His arguments are the embodiment of “mere
                     allegations of ineffectiveness” and therefore fail the first prong of
                     Strickland.

           18.       Since the Defendant fails the first part of the Strickland test, this Court
                     need not go further. However, in light of the circumstances the Court
                     chooses to address the second prong for the sake of completeness.
                     Defendant states “[t]he record supports a valid claim that the Defendant
                     would have proceeded with a second trial had counsel not tricked and
                     lied to Defendant and his family. The Defendant had absolutely
                     nothing to lose by a second trial, and everything to gain[.]” 49 Defendant
                     offers nothing in the record to actually back up this assertion, other than
                     comments that his plea was “absurd.” 50 It is quite possible that
                     Defendant may have chosen to take the plea absent counsel’s advice,
                     given the previous eleven to one result. Defendant offers nothing from
                     the record, other than blanket statements, to refute that argument to a
                     reasonable probability. Defendant’s assertions to what he believes
                     would or would not happen are simply not enough to establish
                     prejudice under Strickland.

           19.       Defendant’s second ground for postconviction relief consists solely of
                     bald assertions regarding to his lack of counsel during his first motion.
                     His arguments on this ground appear to be inextricably intertwined
                     with his arguments to overcome the procedural bars of Rule 61, which
                     are addressed above.

Therefore, Defendant’s Second Motion for Postconviction Relief is DENIED.


IT IS SO ORDERED.

                                                                 ______________________
                                                                 Richard R. Cooch, R.J.

oc:        Prothonotary
cc:        Investigative Services




49
     Def.’s Reply at 8.
50
     Def.’s Reply at 2.
                                                  8
