IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v. ) Cr. ID. No. 1707020603

)

JONATHON DRYBURGH, )
)

Defendant. )

Submitted: February 7, 2019
Decided: April 30, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED

Matthew Frawley, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Jonathon Dryburgh, pro se.

MAYER, Commissioner

This 30th day of April, 2019, upon consideration of Defendant’s Motion for

Postconviction Relief, it appears to the Court that:
BACKGROUND AND HISTORY OF RELEVANT EVENTS

Jonathon Dryburgh (“Defendant”) Was charged With Robbery First Degree,
Possession of a Firearm During the Commission of a Felony (two counts),
Attempted Murder First Degree, Carrying a Concealed Deadly Weapon, Resisting
Arrest, and Possession of a Firearm by a Person Prohibited. The charges stem from
a series of events that occurred on July 27, 2017 While Defendant Was visiting
DelaWare With friends.l Defendant stole a purse and then fled With What Was
believed to be a firearm Law enforcement caught up With Defendant shortly
thereafter and While attempting to evade arrest, Defendant fired shots at the officers.
After a brief foot pursuit, Defendant Was taken into custody. Defendant agreed to
speak With the officers and provided a full confession. Defendant claimed he Was
high on cocaine and did not realize he Was shooting at police officers

On March 15, 2018, Defendant entered into a Plea Agreement and agreed to
plead guilty to Robbery Second Degree, Attempted Murder First Degree, Possession
of a Firearm During the Commission of a Felony, Resisting Arrest, and Possession

of a Firearrn by a Person Prohibited. Defendant understood that by entering into the

 

l The facts of this case Were primarily taken from the Affidavit of Matthew C.
Buckworth, Esquire, former trial counsel, D.I. # 22.

2

Plea Agreement he could be sentenced to the minimum mandatory Level V time of
23 years (or more) and that the State Would recommend 26 years at Level V.2 At
that time, Defendant also executed a Truth-in-Sentencing Guilty Plea Form that
advised him of the rights he Was Waiving by entering a guilty plea, and that the
maximum penalty could be life imprisonment When executing the form, Defendant
admitted he had been a patient in a mental hospital in 201 1, but that he Was not under
the influence of any drugs and that he Was freely and voluntarily deciding to plead
guilty.

On that same date, the Court engaged in a detailed plea colloquy With
Defendant.3 Again, the Court Was advised that Defendant had been a patient in a
mental hospital in 2011, but that counsel “believe[s] that he knows What’s going on
and has understood everything that We’ve talked about.”4 When addressed by the
Court, Defendant denied that he had recently taken any drugs or consumed any
alcohol, he openly discussed the conditions involving his previous hospital stay, and
educated the Court about the processes in Florida.5 Defendant clarified that he Was
taking Zyprexa, Prazosin and Zoloft, as prescribed, and that When taking those

medications, he is able to understand the consequences of his actions and make

 

2 D.I. # 13.

3 See Guilty Plea Transcript, March 15, 2018 (hereinafter “Tr. at 2-15.”).
4 Tr. at 4.

5 Tr. at 5-6.

reasonable decisions.6 Defendant also confirmed that he had not been diagnosed
with any physical or mental condition that would affect his ability to understand the
proceedings7 The Court then continued with the plea colloquy and Defendant
voluntarily waived his constitutional rights, admitted guilt to the charges as set forth
in the Plea Agreement, and indicated he was satisfied with his counsel’s
representation On July 13, 2018, Defendant was sentenced to 31 years at Level V
followed by decreasing levels of probation.8

On December 26, 2018, Defendant filed his first Motion for Postconviction
Relief (the “Motion”).9 The Motion presents two arguments: (1) Defendant’s
procedural due process rights as enunciated in Pate v. Robinson, 383 U.S. 375
(1966), were violated when the trial court failed to hold a competency hearing before
accepting the guilty plea; and (2) trial counsel’s failure to advise defendant of an
insanity defense rendered defendant’s guilty plea involuntary and constituted
ineffective assistance of counsel (citing Mena’enhall v. Hopper, 453 F. Supp. 977
(S.D. Ga. 1978)).

At the Court’s direction, former trial counsel submitted an Affidavit

responding to the two allegations. Trial counsel attests that throughout his

 

6 Tr. at 6-7.
7 Id. at 7.

8 D.I. # 16.
9 D.I. # 17.

representation, and during the time that the plea was entered, Defendant did not
display any characteristics of incompetency.10 Further, trial counsel did not advise
Defendant regarding the possibility of an “insanity” defense because “there were no
objective signs that ever made [trial counsel] question whether he appreciated the
nature of his actions on July 27, 2017.”
LEGAL ANALYSIS OF CLAIMS

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the Motion.ll This is Defendant’s first
motion for post-conviction relief and it was timely filed.12 However, pursuant to
Super. Ct. Crim. R. 61(i)(3) any ground for relief that was not previously raised is
deemed waived, unless the movant can establish cause for relief and prejudice to the
movant’s rights.

Ineffective assistance of counsel claims cannot be raised at any earlier stage

in the proceedings and are properly presented by way of a motion for postconviction

 

10 Citing State v. Willl`amson, 59 A.3d 490 (Del. Super. 2012), trial counsel implies
that Defendant did not appear incompetent because he understood the nature of the
proceedings and he was able to give evidence on his behalf and/or instruct counsel
to assist him.

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

12 See Super. Ct. Crim. R. 61(i)(1) (motion must be filed within one year of when
the conviction becomes final); Super. Ct. Crim. R. 61(m)(1) (lf the defendant does
not file a direct appeal, the judgment of conviction becomes final 30 days after the
Court imposes the sentence).

relief.13 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 the deficiencies in counsel’s representation caused the defendant
actual prejudice.14 To prevail in the context of a case involving a guilty plea,
Defendant must show that but for counsel’s errors, there is a reasonable probability
that he would not have pleaded guilty and instead would have insisted on going to
trial.15 Defendant must also overcome a strong presumption that counsel’s conduct
was reasonably professional under the circumstances.16 Further, mere allegations of
ineffectiveness will not suffice, rather, a defendant must make and substantiate
concrete allegations of actual prejudice.17 Great weight and deference are given to
tactical decisions by the trial attorney and counsel cannot be deemed ineffective for
failing to pursue motions that lack merit.18 Moreover, a defendant is bound by his

statements to the Court during the plea colloquy and a valid guilty plea waives his

 

13 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).

14 Strickland v. Washl`ngton, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

15 Albury v. State, 551 A.2d 53, 59 (Del.1988) (quoting Strickland, 466 U.S. at 694).
16 State v. Wright, 653 A.2d 288, 293-94 (Del. Super. 1994) (citations omitted).

17 Younger v. State, 580 A.2d at 556.

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

right to challenge any alleged errors, deficiencies or defects occurring prior to the
entry of the plea,19
I. Defendant’s First Claim Should be Denied

Unfortunately, many involved in the criminal justice system suffer from a
mental health condition. However, the existence of such an illness does not, in and
of itself, render a guilty plea involuntary nor is it a threshold that automatically
compels a competency hearing. Rather, a competency determination is necessary
only if the court has reason to doubt the defendant’s competence.zo In the context of
a guilty plea, “a defendant’s competence is predicated on whether he ‘has sufficient
present ability to consult with his lawyer with a reasonable degree of rational
understanding-and whether he has a rational as well as factual understanding of the

”’21 Where there is no evidence that a defendant has

proceedings against him.
recently ingested anything that may impair his ability to make a knowing and

intelligent waiver of his constitutional rights, the trial court will not be faulted for

failing to doubt competency.22

 

19 Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Miller v. State, 840 A.2d
1229, 1232 (Dei. 2004).

20 Weeks v. State, 653 A.2d 266, 270 (Del. 1995), citing Goa'z'nez v. Moran, 509 U.S.
389 (1993).

21 Id, quoting Dusky v. Um'tea’ States, 362 U.S. 402 (1960).

22 Id.

Defendant’s first argument, relying on Pate v. Robinson, is that he was entitled
to a competency hearing and the trial court’s failure to hold one, was a violation of
his due process rights. In Pate v. Robinson, the defendant proceeded through trial,
several witnesses testified that he had a history of disturbing behavior and the
collective evidence demonstrated he was entitled to a hearing on the issue of
competency.

Here, Defendant waived his right to raise the present claims when he entered
his guilty plea. No indication was given to trial counsel, nor did the Court’s plea
colloquy evidence, a basis to believe Defendant was not competent And although
there is a basis within the record to believe Defendant suffered from a mental illness,
he has not presented any evidence that, if previously before the court, would have
created doubt with respect to his competency. Defendant’s first claim is procedural
barred because he did not present the claim in the original proceedings, and
Defendant waived the claim when he entered into the guilty plea. 23

Defendant’s case is easily differentiated from Pate v. Robinson and is more

akin to other Delaware cases. For example, in Sartz'n v. State, 2014 WL 5392047

 

23 Defendant has also not established cause nor prejudice justifying relief from the

procedural bar. See State v. Westcott, 2014 WL 7740466, at *l (Del. Super. Nov.
24, 2014), citing Younger v. State, 5880 A.2d 552, 556 (Del. 1990) (requiring
defendant to show that an external impediment prohibited him from raising the
claim); Flamer v. State, 585 A.2d 73 6, 748 (Del. 1990) (defendant must demonstrate
that there is a substantial likelihood that, had the claim been raised, the outcome of
the case would have been different).

(Del. Super. Oct. 21, 2014), there was no indication that the defendant’s mental
health issues rose to the level of a viable defense and since the defendant could not
show how a mental illness defense would have Succeeded at trial, relief was not
appropriate. Likewise, in Newman v. State, 2016 WL 889531 (Del. Mar. 8, 2016),
the Supreme Court affirmed the denial of a motion for post-conviction relief because
the defendant gave no indication that his mental health would constitute a colorable
defense, and his colloquy with the court demonstrated a knowing and voluntary
guilty plea. In both cases, the trial court was aware that the defendant suffered from
a mental illness, each had spent some time in a psychiatric facility, and may have
been taking psychotropic medication. Those facts though did not undermine the
strength of the plea and waiver of rights. Similar to Sartin and Newman, Defendant
did not have difficulty answering questions during the plea colloquy, and there is no
evidence that his mental health rendered his guilty plea involuntary. Therefore,
Defendant’s first claim should be denied.24
II. Defendant’s Second Claim has no Merit

Defendant next argues that trial counsel was ineffective for failing to advise

him of an insanity defense. “[L]egal insanity exists only if the defendant’s illness

 

24 Defendant has not argued that the court lacked jurisdiction, new evidence creating
a strong inference that he is actually innocent, or that a new rule of constitutional
law applies to ender the conviction invalid. As such, Defendant has not raised an
exception to the procedural bar. See Super. Ct. Crim. R. 6l(i)(5) and (d)(2)(i), (ii).

undermines his culpability to such an extent that punishment becomes
inappropriate.”25 In Delaware, a defendant may be found not guilty by reason of
insanity if he/she prevails on an affirmative defense by establishing that “at the time
of the conduct charged, as a result of mental illness or serious mental disorder, the
accused lacked substantial capacity to appreciate the wrongfulness of the accused’s
conduct.”26 However, if a mental illness or alleged insanity was proximately caused
by the individual’s voluntary ingestion of illegal drugs or alcohol, a defendant may
not rely upon the defense of not guilty by reason of insanity, nor may a jury return a
verdict of guilty but mentally ill.27

Here, shortly after having been taken into custody, Defendant confessed but
sought to excuse his actions because he was under the influence of cocaine. Trial
counsel was fully aware of these circumstances and knew that the law would not
excuse his acts. In addition, trial counsel attests that Defendant appreciated the
nature of his actions on July 27, 2017. As such, there was no legal basis for an
insanity defense.

Defendant’s reference to Mendenhall v. Hopper is likewise misplaced. In that

case, trial counsel was aware of a psychiatric evaluation that he did not share with

 

25 Sanders v. State, 585 A.2d ll7, 123 (Del. 1990).

26 ii D_ei.g. §401(3).

27 See e.g., Norman v. State, 976 A.2d 843, 854 (Del. Super. 2009), citing 11 D_el_.
g §401(¢) and ii D_ei. g_. §422.

10

his client and therefore, trial counsel was ineffective for not adequately conferring
with his client and investigating the possibility of a mental illness defense. This case
does not lead to the same result. Defendant has not presented a psychological
evaluation or expert opinion that would have supported a mental illness defense, nor
has he demonstrated that trial counsel was aware of one and failed to pursue it. Trial
counsel will not be deemed ineffective for neglecting to present a meritless defense.
Having found no error by trial counsel, the Court need not turn to the second prong
of the Strz`ckland standard.

F or all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be DENIED.

 

IT IS SO RECOMMENDED. f ...*~i
cc: Prothonotary

/ @,J
WL. Mayer
Matthew Frawley, Esquire

Matthew C. Buckworth, Esquire
Jonathon Dryburgh

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