IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1309018769 A & B

ROBERT E. ROSA,

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Defendant.

Date submitted: June 16, 2016
Date decided: July 7, 2016

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Brian Robertson, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St. 7th Floor, Criminal Division, Wilmington, Delaware,
19801, Attorney for the State.

Andrew J. Witherell, Esquire, 1000 East 14th Street, Wilrnington, Delaware 19801.

Attorney for the Defendant.

MANNING, Commissioner

This 7th day of July 2016, upon consideration of defendant Robert E. Rosa’s

motion for postconviction relief ("Motion"), l find the following:
Pr0cedural Histol_'y_

On July 21, 20l4, Rosa entered guilty pleas to Attempted Robbery Second
Degree (two counts), Possession of a Firearm During the Commission of a Felony
(two counts), Aggravated Menacing, Attempted Robbery Second Degree, and
Possession of a Deadly Weapon by a Person Prohibited. A pre-sentence
investigation was conducted and Rosa was sentenced on October 3, 2014. Rosa
did not appeal his convictions to the Delaware Supreme Court. Rosa timely filed
a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on
October 2, 2015. Rosa requested appointment of counsel to assist him with his
motion. However, I denied his motion for appointment of counsel pursuant to Rule
6l(e)(2) by Order dated January 26, 2016.1

Trial counsel filed an Affidavit responding to Rosa’s claims on March 17,
2016. The State filed its Response to Rosa’s claims on May 16, 2016. Rosa did
not file a Reply.

The facts surrounding Rosa’s crimes are not relevant to deciding his claims
and need not be recited here. Based upon my review of Rosa’s Motion I do not see

the need for an evidentiary hearing. The arguments made by Rosa in his Motion

1 D.I. #50

can be fully addressed with the factual record created by the pleadings and other

information currently available in the Court’s frle. Rosa’s claims for

postconviction relief, quoted verbatim, are as follows;

Ground One: Effective assistance of counsel. Defendant’s 6a1
Amendment right to effective assistance of counsel was abridged
when counsel failed to conduct adequate pretrial investigation to
determine insuffrcienty of the States case before advising the

defendant to plea guilty.

'{:§-:t£§LI-§zt“l_ "lf"§;as‘§: Coerced guilty plea. Counsel violated the defendants
6th Amendment Right to Counsel when he misadvised the defendant
that he would only serve l5 yrs. if he plead guilty.

Ground Three; Defendant’s 6th Amendment Right to Effective
Assistance of Counsel was violated as a result of ineffective assistance

of Counsel.

Legal Standard_

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strickland test by showing that: (l) counsel performed at a
level "below an objective standard of reasonableness" and that, (2) the deficient
performance prejudiced the defense.z The first prong requires the defendant to
show by a preponderance of the evidence that defense counsel was not reasonably

competent, while the second prong requires the defendant to show that there is a

2 Strz`ckland v. Washz`ngton, 46.6 U.S. 668, 687-88, 694 (1984),~

reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different.3

When a court examines a claim of ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected
without contemplating the other prong.4 Most germane to this case, mere
allegations of ineffectiveness will not suffice-a defendant must make and
substantiate concrete allegations of actual prejudice.5 An error by defense counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of
conviction if the error had no effect on the judgment.6

In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be reviewed from his or her perspective at the time
decisions were being made.7 A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting efforts of hindsight. Second

guessing or "Monday morning quarterbacking" should be avoided. 8

3 1¢1.
4 14 31697.
5 Younger v. State, 580 A.2d 552, 556 (Del. l990).

6 s¢rzckzand, 466 U.s.ar 691.

714

314

The procedural requirements of Superior Court Criminal Rule 61 must be
addressed before considering the merits of any argument.9 Dale’s Motion was
timely filed, is not repetitive, and none of the claims he raised were previously

adjudicated in any forum. Therefore, Rosa’s Motion is not procedurally barred

under Superior Ct. Crim. Rule 6l(i)(l) - (4).
Analysis

Rosa’s motion is entirely devoid of any concrete examples of how trial
counsel’s representation was deficient, or how that deficient representation
prejudiced him. Rosa’s entire motion is nothing more than a string of wholly
conclusory accusations.

As to his first argument, Rosa claims that trial counsel failed to conduct an
"adequate pretrial investigation." However, Rosa fails to name a single person that
trial counsel should or could have interviewed, or how that person’s testimony
might have changed the outcome of the case. In response to this allegation, trial
counsel provided the Court with a copy of an invoice from a private investigator
indicating that 30 hours of work was billed working on Rosa’s case. The invoice
indicates that considerable time was spent tracking-down and interviewing possible

witnesses, including one of the alleged victims.

9 see Y@unger, 580 A.zd at 554.

Rosa’s second argument is that trial counsel "misadvised" him that he would
"only serve 15 yrs. if he plead guilty." In his Affidavit, trial counsel denies that he
ever stated this to Rosa. In any event, the Truth-In-Sentencing Guilty Plea Form
clearly indicates that Rosa faced a minimum mandatory penalty of "20 years" and
up to a maximum of "85 years or life w/habit." Additionally, the Guilty Plea
Agreement itself also states that the "State and Defendant agree to recommend: a
total sentence incorporating 30 years at Level Five."

Given the unambiguous information contained in the guilty plea paperwork,
I have no doubt that Rosa’s plea was knowingly, intelligently and voluntarily
entered and that he knew the correct penalty range he faced at the time he entered
his guilty pleas. Outside of Rosa’s conclusory allegation, there is nothing in the
record to indicate that Rosa was not properly advised before he entered his guilty
pleas. While Rosa may regret his decision in hind-sight, it is clear to me that he
knew what he was doing at the time. In the absence of clear and convincing
evidence to the contrary, Rosa is bound by his representations to the Court.m

Rosa’s third claim is merely a recapitulation of his first two and need not be
addressed separately. All of Rosa’s claims are nothing more than conclusory
statements unsupported by specific facts, details or argument, and all fail to meet

the standard for relief under Strickland, its progeny, and Rule 6l.

‘° somerville v. S¢a¢e, 703 A.zd 629, 632 (D@l. 1997).

Conclusion__
For the foregoing reasons, Rosa’s Motion is so lacking in merit that it should
be DENIED and Summarily Dismissed pursuant to Super Ct. Crim. Rule 61(d)(5).

IT IS SO RECOMMENDED.

 

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BRADLEY V. MANNING,
Commissioner

oc: Prothonotary
oc: Defendant

