IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

V. IDNO.1401014417

FRANK DAVENPORT,

Defendant.

Submitted: April 25, 2018
Decided: July 24, 2018

Upon Defendant’s Motion for Postconviction Relief
DENIED

MEMORANDUM OPINION

Frank Davenport, Self-represented litigant

R,o._canelli, J. ~,..

Defendant Frank Davenport (“Defendant”) moves for postconviction relief.
Defendant generally argues that he is entitled to postconviction relief because of
errors that occurred in and throughout his sentencing hearing By letter dated April
25, 2018, the Court denied Defendant’s request for appointment of counsel pursuant
to Superior Court Rule of Criminal Procedure 6l(e)(3).l For the reasons that follow,
Defendant’s motion for postconviction relief is denied.

FACTUAL AND PROCEDURAL BACKGROUND

On January l6, 2010, Holly Wilson Was shot and killed in her home.
Defendant Was present at Wilson’s home When the shooting took place, and initially
reported it to the police as a suicide.2

On January 2l, 2014, Defendant Was indicted for Murder in the First Degree
and Possession of a Firearm During the Comrnission of a Felony in connection With
the death of Wilson. Defendant Was also charged With Aggravated Menacing and
Possession of a Firearm During the Commission of a Felony in connection With
events that took place in October 2009, that also involved Wilson. Defendant Was

represented by Ross Flocl<erzie, Gerald Spadacinni, and Brett Hession (collectively,

“Trial Counsel”).

 

l Super. Ct. Crim. R. 6l(e)(3) (providing that it is Within the Court’s discretion to
appoint counsel for a defendant’s first postconviction motion that seeks to set aside
a judgment of conviction that resulted from a plea of guilty or nolo contendere).

12 See Davenport v. State, 150 A.3d 274, 201-6 WL 6156170, at *l (Del. 2016).

l

On May 27, 2015, Defendant pled nolo contendere to Manslaughter and one
count of Possession of a Firearm During the Commission of a Felony. Defendant
Was sentenced on November 20, 2015, as follows: for Manslaughter, 25 years at
Level 5, suspended after 15 years for 10 years at Level 4 DOC discretion, suspended
after six months for two years at Level 3 GPS; and for Possession of a Firearm
During the Commission of a Felony, five years at Level 5, no probation to follow.
Defendant Was also ordered to pay $7,339.89 to the Victirn’s Compensation

Assistance Program (“VCAP”).

Defendant filed a timely appeal to the Delaware Supreme Court. Defendant’s

arguments on appeal Were:

i) that the State impermissibly breached its plea deal With him by asking
the Superior Court to sentence Davenport to no less than the sentence
cap to Which Davenport and the State agreed; ii) that the Superior Court
used inaccurate information to sentence Davenport in violation of his
due process rights; and iii) that the Superior Court impermissibly
ordered Davenport to pay restitution to [VCAP].3

The Delaware Supreme Court affirmed the judgment of the Superior Court on
October 21, 2016.4 Defendant then filed a petition for a Writ of certiorari With the

United States Supreme Court, Which Was denied on April 3, 2017.5

 

3 [a'.
4 [a'. at *4.
5 Davenport v. Delaware, 137 S. Ct. 1447 (2017)'.

2

On March 29, 2018, Defendant filed a motion for postconviction relief (“PCR
Motion”) as a self-represented litigant. Defendant generally raises three grounds for
relief in his PCR Motion. First, Defendant argues that the State acted improperly
with respect to Defendant’s sentencing by not sending a copy of the State’s
sentencing packet to Trial Counsel until the night before sentencing and using
“inflainmatory” materials and language during the sentencing hearing Second,
Defendant argues that this Court sentenced Defendant based on “inaccurate and
unverified data,” because the State referred to Defendant as homeless, because the
Court considered improper aggravating factors under the SENTAC guidelines, and
because the Court failed to consider forensic evidence in Defendant’s favor. Third,
Defendant argues that Trial Counsel Were ineffective by failing to object to the
State’s sentencing packet and by making decisions Without consulting Defendant.

PROCEDURAL BARS TO POSTCONVICTION RELIEF

Before addressing the merits of a motion for postconviction relief, this Court
must consider the procedural requirements of Rule 6l(i).6 To be considered on the
merits, a defendant’s motion for postconviction relief must be his or her first
postconviction motion,7 and it must be timely.8 Defendant’s PCR Motion is his first

motion for postconviction relief, and it is timely because it Was filed Within one year

 

6 Bailey v. State, 588 A.Zd ll2l, ll27 (Del. l99l).
7 Super. Ct. Crim. R. 61(i)(2).
8 Super. Ct. Crim. R. él(i)(l). d

April 3, 2017, the date on which his judgment of conviction became final. However,
Defendant is also barred from raising grounds for relief that either should have been
properly asserted in the proceedings below,9 or which were previously adjudicated
in the proceedings below.10 Defendant raises several claims that are procedurally
barred
I. Procedural Default Bar

Rule 6l(i)(3) states, “Any 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 (A) Cause for relief from the
procedural default and (B) Prejudice from violation of the movant’s rights.”ll The
procedural default bar “applies to claims not asserted during trial as well as claims
not raised on direct appeal.”12 Defendant raises several claims that are subject to the
procedural default bar.

First, Defendant’s argument that the State acted improperly with respect to
Defendant’s sentencing by delaying to send the sentencing packet to Trial Counsel
until the night before sentencing and by using “inflammatory” materials and

language is procedurally barred. Any objection Defendant had to the timing of the

 

9 Super. Ct. Crim. R. 6l(i)(3).

10 Super. Ct. Crim. R. 61(i)(4).

ll Super. Ct. Crim. R. 61(i)(3).

. 1 12 State i). Lope.»", 2016 V.-fL 3621547 (Del. Super. Junc 27, 2016).' '

4

State’s sentencing packet should have been made at the sentencing hearing.
Similarly, if Defendant wished to object to the State’s alleged use of “inflammatory”
language or pictures, Defendant should have made specific objections at the time.
Defendant may not raise these objections for the first time on a motion for
postconviction relief.13 Therefore, Defendant’s argument regarding the State’s
alleged improper behavior at sentencing is procedurally barred.

Second, Defendant’s argument that the Court sentenced Defendant based on
“inaccurate and unverified data,” because the State referred to Defendant as
homeless and because the Court failed to consider forensic evidence in Defendant’s
favor is procedurally barred. Defendant had the opportunity to object to the State’s
“horneless” comment at the time it was made. In addition, Trial Counsel did, in fact,
challenge the State’s forensic evidence at the sentencing hearing while also
highlighting the forensic evidence in Defendant’s favor. Defendant cannot now
challenge the role that forensic evidence played in the Court’s sentence on a motion
for postconviction relief. Therefore, these claims are procedurally barred.

Defendant could be excepted from the procedural default bar if he could show

“cause for relief” and prejudice14 However, Defendant has not made such a

 

13 Moreover, as will be discussed later, Trial Counsel made a strategic decision to
counter the substance of the State’ s sentencing presentation, rather than object to it
outright. The Court will defer to reasonable strategic decisions of Trial Counsel.
'4 Supei Ct. Crim R 6l(i)(. ?)~)(A) (B) 1 ‘ ' ' ' i ~

5

showing. Therefore, Defendant cannot avail himself of the exception to the
procedural default bar, and is barred from arguing that the State acted improperly
with respect to Defendant’s sentencing or that the Court sentenced Defendant based
on “inaccurate and unverified” data.
II. Former Adjudication Bar

Rule 61(i)(4) states, “Any ground for relief that was formerly adjudicated,
whether in the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceedings, or in a federal habeas corpus proceeding, is thereafter
barred.”15 In his PCR Motion, Defendant argues that the Court considered improper
SENTAC factors when sentencing Defendant. However, Defendant made the same
argument on direct appeal, which the Delaware Supreme Court rejected.16
Therefore, Defendant’s argument that the Court used improper SENTAC factors is
barred under Rule 61(i)(4).

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

After consideration of the procedural bars, Defendant’s only remaining claims
relate to alleged ineffectiveness of Trial Counsel. Defendant argues that Trial
Counsel were ineffective by failing to object to the State’s sentencing packet, and

by failing to consult with Defendant about certain decisions

 

15 Super. Ct. Crim. R. 6l(i)(4).
16 Davenporf, 2016 VVL 6156170, at ’1<2.-.*

3.
6.

Ineffective assistance of counsel claims are governed by the two~prong test
established in Stricklana’ v. Washington.17 ln order to satisfy Stricklana', the movant
must demonstrate (l) that counsel’s representation fell below an objective standard
of reasonableness,18 and (2) that counsel’s errors prejudiced the defendant.19 ln
considering the first prong, there is a strong presumption that counsel’s actions were
professionally reasonable20 In considering the second prong, the movant must
show “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”21 Failure to prove
either prong renders the claim insufficient22

Defendant’s first argument is that Trial Counsel were ineffective by failing to
object to the State’s sentencing packet. However, Trial Counsel made a strategic
decision to challenge the substance contained in the State’s sentencing packet At
the sentencing hearing, Trial Counsel stated:

Our plan was to talk about Mr. Davenport and an appropriate sentence

for him and that will still be happening However, yesterday morning

l received a submission from the State, a case suminary. In it, the State
delves into foi'ensics in this case. When we reviewed the summary the

 

17 466 U.S. 668 (1984).
18 Ia'. at 688.
19 Id. at 694.
20 Ia'. at 688.
211¢1’. at 694.
22 Ia’. at 700.

State provided, as well as the exhibits, we could not allow the errors
and inaccuracies in the State’s summary to go uncorrected.23

Trial Counsel’s strategy of challenging the substance of the State’s sentencing
packet, as opposed to objecting to the packet as a whole, was well within the range
of reasonableness Moreover, Defendant cannot establish that he was prejudiced by
the sentencing packet when Trial Counsel had the opportunity to respond, and did
respond, to the information contained therein.24 Therefore, Defendant cannot

establish that Trial Counsel were ineffective by failing to object to the State’s

sentencing packet.

 

23 State v. Davenport, ID No. 1401014417, at 15 (Del. Super. Nov. 20, 2015)
(TRANSCRIPT).

24 In this sense, the present case is distinguishable frorn Harden v. State, 180 A.3d
1037 (Del. 2018). In Harden, the defendant’s public defender changed jobs prior to
the defendant’s sentencing. The defendant’s new attorney did not seek a
continuance to prepare for sentencing, and only had a fleeting discussion with the
defendant on the day of the sentencing hearing The defendant’s new attorney did
not prepare the defendant for allocution or discuss any mitigating evidence with him.
The Delaware Supreme Court held that the new attorney performed unreasonably
under Stricklana', and that the defendant was prejudiced as a result. Accordingly,
the Delaware Supreme Court remanded to the Superior Court for a resentencing
before a different judge. By contrast, Trial Counsel here remained the same
throughout Defendant’s case, including at his sentencing hearing Moreover, Trial
Counsel were well-prepared for Defendant’s sentencing hearing, and presented
mitigation evidence on Defendant’s behalf, as well as forensic evidence contrary to
the State’s presentation Therefore, unlike in Harden, Defendant cannot establish
that Trial Counsel’s performance fell below an objective standard of reasonableness,
or that Defendant was prejudiced by Trial Counsel’s actions at the sentencing
-“hearing. -

8

Defendant’s second argument is that Trial Counsel were ineffective by failing
to consult with Defendant on key decisions Specifically, Defendant argues that
Trial Counsel should have consulted with Defendant regarding the decision not to
object to the State’s sentencing packet and Trial Counsel’s decision to appeal
Defendant’s sentence based on an alleged violation of SENTAC.

There are certain decisions that a Defendant has the ultimate authority to
make.25 These decisions include “whether to plead guilty, waive a jury, testify in
his or her own behalf, or take an appeal.”26 However, “the attorney’s duty to consult
with the defendant regarding ‘important decisions’-including questions of
overarching defense strategy_does not require counsel to obtain the defendant’s
consent to ‘every tactical decision.”’27 Accordingly, Trial Counsel were not
obligated to get Defendant’s consent on the decision not to object to the State’s
sentencing packet or the decision to specifically appeal an alleged violation of
SENTAC. Therefore, even assuming that Trial Counsel did not consult with
Defendant, the failure to do so was not objectively unreasonable Accordingly,

Defendant cannot establish that Trial Counsel were ineffective.

 

25 See Tayl0r v. State, 28 A.3d 399, 405-06 (Del. 2011).

26 Id. at 406 (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)).
- 27 Id. '(citing Florida v. Ni'xon,¢543 U.S. 175, 187 (2004)).

9

CONCLUSION

Defendant is not entitled to postconviction relief After application of the
procedural bars to relief, Defendant’s only remaining claims relate to alleged
ineffective assistance of Trial Counsel. Defendant cannot establish that Trial
Counsel were ineffective under Stricklana'. Therefore, Defendant’s PCR Motion
must be denied.

NOW, THEREFORE, this 2411‘ day of July, 2018, Defendant’s Motion for
Postconviction Relief is hereby DENIED.

IT IS SO ORDERED.

     

 

The I:loiiorable Andrea\lj.'Rocanelli

10

