      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                   )
                                     )
      v.                             )      I.D. No. 1001019523
                                     )
ERIC E. WILLIAMS,                    )
          Defendant.                 )


           Upon Defendant’s Motion for Postconviction Relief - DENIED
                          Submitted: January 28, 2015
                            Decided: March 4, 2015

     Upon Motion to Withdraw as Counsel for Eric Williams – GRANTED
                        Submitted: January 28, 2015
                          Decided: March 4, 2015

      On January 26, 2010, members of New Castle County Police and

Department of Corrections Probation and Parole Safe Streets Unit executed an

administrative search warrant on two probationers staying in Room 174 of the

Fairview Inn at 1051 N. Market St., Wilmington, Delaware. The probationers

were the defendant in this case Eric Williams, a Level 2 probationer and convicted

felon (“Defendant”) and William Comer, a Level 3 probationer and convicted

felon. As convicted felons, both Defendant and Comer were prohibited from

possessing firearms.

      Room 174 was registered in Defendant’s name.        Neither Defendant nor

Comer was in Room 174 at the time the warrant was executed. The following

items were recovered from Room 174: 19 grams of Cocaine; 16 bags of Heroin; 40
rounds of .32 caliber ammunition; a loaded .32 caliber revolver; a digital scale; and

various drug paraphernalia. Also recovered were pieces of mail belonging to both

Defendant and Comer. Defendant was arrested as he attempted to enter Room 174

while police were inside. Defendant had the key to Room 174 in his possession

when he was taken into custody.

         Defendant was charged with Trafficking Cocaine (10-50 grams); Possession

of a Firearm During Commission of a Felony; Possession with Intent to Deliver

Cocaine; Possession with Intent to Deliver Heroin; Possession of Ammunition By

a Person Prohibited; Possession of a Firearm By a Person Prohibited; Maintaining

a Dwelling; Conspiracy 2nd Degree; Possession of Drug Paraphernalia; and

Resisting Arrest. Defendant was also charged with Violation of Probation.1 If

Defendant had been convicted of all new charges arising from the January 26,

2010 arrest and the Violation of Probation, he would have faced almost twenty

(20) years of minimum mandatory Level 5 incarceration.

         Kathryn Van Amerongon, Esquire, was appointed as Defendant’s trial

counsel. Ms. Van Amerongon represented Defendant for approximately one week

before recusing herself and her office due to a conflict of interest. Peter Letang,

Esquire, was the second attorney appointed to Defendant as trial counsel. Mr.

Letang also recused himself due to a conflict of interest within one week of his


1
    Defendant was on probation for an unrelated matter.
                                                 2
appointment. Patrick Collins, Esquire, was appointed as counsel for Defendant

and represented Defendant through the conclusion of the case. (Mr. Collins is

referenced herein as “Trial Counsel”).

      The Court scheduled trial for December 14, 2010. More than nine months

after his arrest, following the completion of discovery and a full investigation

conducted by Trial Counsel, Defendant pled guilty on December 2, 2010 to

Possession of a Firearm During Commission of a Felony and Possession of Drug

Paraphernalia. The remaining eight charges were dropped.

      Pursuant to Superior Court Criminal Procedural Rule 11(c)(1), the Court

addressed Defendant personally in open court.            The Court determined that

Defendant understood the nature of the charges to which the plea was offered, the

mandatory minimum penalties provided by law, the maximum possible penalties

provided by law, and the range of possible penalties included in the sentence

imposed by the Court in this case. Defendant acknowledged in open court that he

was guilty of the criminal conduct to which he was pleading guilty and

acknowledged his responsibility for the violation of probation.         The Court

emphasized that the dismissal of the remaining charges reflected Defendant’s

acceptance of responsibility for his criminal conduct.

      The Court sentenced Defendant to three (3) years at Level 5 incarceration,

the minimum mandatory sentence for Possession of a Firearm During Commission


                                         3
of a Felony. In addition, because Defendant admitted that he was responsible for

the Violation of Probation, the Court sentenced Defendant to an additional three

(3) years at Level 5. Defendant’s incarceration was to be followed by one (1) year

of community-based supervision at probation Level 3.

      Defendant filed a Motion for Postconviction Relief on May 29, 2012. The

Motion asserted four grounds for relief, including ineffective assistance of counsel.

The Court requested affidavits from each of Defendant’s prior counsel. Pursuant

to Defendant’s claims for relief, Ms. Van Amerongon filed an affidavit to which

Defendant submitted a reply. Mr. Letang filed an affidavit to which Defendant

submitted a reply.    Trial Counsel submitted an affidavit to which Defendant

submitted a reply. By letter dated January 25, 2013, the Court sought additional

information from Mr. Letang’s office. At this time, the Court did not require the

State to file a response to Defendant’s Motion.

      This case was reassigned in August 2013, at which time the Court requested

a response from the State to Defendant’s Motion for Postconviction Relief. At

about the same time, Defendant requested that Rule 61 counsel be appointed to

represent him.   Accordingly, the Court informed the State that a response to

Defendant’s Motion should not be filed. On October 18, 2013, the Court ordered

appointment of Rule 61 counsel. By Order dated April 15, 2014, Christopher




                                         4
Tease, Esquire, was appointed as Rule 61 Counsel.2 (Mr. Tease is referenced

herein as “Rule 61 Counsel”). 3

       Rule 61 Counsel filed a Motion to Withdraw as Counsel pursuant to

Superior Court Criminal Rule 61(e)(6), asserting that Defendant failed to allege

meritorious grounds for postconviction relief.                 The State filed a response

requesting that Defendant’s Motion for Postconviction Relief be denied. This is

the Court’s decision on Defendant’s Motion for Postconviction Relief and Rule 61

Counsel’s Motion to Withdraw.

       I.     DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

       A. Standard of Review

       Defendant filed the Motion for Postconviction Relief in 2012.4                      Before

addressing the merits of a motion for postconviction relief, the Court must consider

the procedural requirements of Rule 61(i).5 A motion is procedurally sufficient for

consideration on the merits if it is the defendant’s first motion,6 the motion is




2
  A change in procedural rules and a backlog of cases requiring appointment of Rule 61 counsel
caused a six-month delay in appointment of Rule 61 Counsel.
3
  Rule 61 Counsel is not practicing law at this time. Nevertheless, he has fulfilled his obligations
to the Court in this matter and the Court will not appoint subsequent counsel.
4
  Accordingly, the Court will apply the version of Superior Court Criminal Rule 61 prior to the
enactment of the 2014 amendments.
5
  Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
6
   Super. Ct. Crim. R. 61(i)(2) (“Any ground for relief that was not asserted in a prior
postconviction proceeding…is thereafter barred, unless consideration of the claim is warranted in
the interest of justice.”).
                                                 5
timely, 7 and the motion does not assert grounds for relief already adjudicated.8

Furthermore, any ground for postconviction relief that was not asserted in the

proceedings below leading to the judgment of conviction, as required by the rules

of this Court, is thereafter barred unless the movant shows cause for relief from the

procedural default and prejudice from violation of the movant’s rights. 9 Defendant

filed the pending Motion for Postconviction Relief seventeen (17) months after his

conviction. Accordingly, Defendant’s Motion is procedurally defect as untimely.

       Defendant seeks to overcome the procedural time bar under the fundamental

fairness exception of Rule 61(i)(5).           If a motion for postconviction relief is

procedurally defect, the Court may nonetheless consider the merits of the motion if

it represents a “colorable claim that there was a miscarriage of justice because of a

constitutional violation that undermined the fundamental legality, reliability or

fairness of the proceedings leading to the judgment of conviction.”10                       The

fundamental fairness exception is a narrow one and has been applied only in

limited circumstances. 11 The movant has the burden of proof and must show that

he has been deprived of a substantial constitutional right.12



7
  Super. Ct. Crim. R. 61(i)(1)(“A motion for postconviction relief may not be filed more than one
year after the judgment of conviction is final[.]”).
8
  Super. Ct. Crim. R. 61(i)(4).
9
  Super. Ct. Crim. R. 61(i)(3).
10
   Super. Ct. Crim. R. 61(i)(5).
11
   Younger v. State, 580 A.2d 552, 555 (Del. 1990).
12
   Id.
                                               6
       Defendant’s Motion asserts claims of ineffective assistance of counsel

against Ms. Van Amerongen, Mr. Letang, and Trial Counsel. Defendant’s Motion

asserts a claim of actual innocence. Finally, Defendant asserts that the search of

Room 174 was in violation of Defendant’s Fourth Amendment rights.

       B. Defendant’s Claims of Ineffective Assistance of Counsel

       Defendant’s first ground for postconviction relief contends that Ms. Van

Amerongen, Mr. Letang, and Trial Counsel provided Defendant with ineffective

assistance of counsel. Defendant fails to establish that the attorneys’ conduct fell

below an objective standard of reasonableness. 13

       In order to succeed on a claim of ineffective assistance of counsel,

Defendant must show that (1) counsel’s representation fell below an objective

standard of reasonableness,14 and (2) there exists a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.15 The movant must overcome the strong presumption that counsel’s

conduct was professionally reasonable. 16 Failure to prove either prong renders the

claim insufficient.17 Moreover, to avoid summary dismissal, the movant must




13
   See Strickland v. Washington, 466 U.S. 668 (1984).
14
   Id. at 688.
15
   Id. at 694.
16
   Id. at 688.
17
   Id.
                                               7
provide concrete allegations of prejudice, including specifying the nature of the

prejudice and the adverse effects actually suffered.18

          Defendant asserts that Ms. Van Amerongen, Mr. Letang, and Trial Counsel

failed to secure text messages between Defendant and a member of the

Wilmington Police Department. Defendant contends that the text messages would

have shown an ongoing dialogue that demonstrated Defendant’s innocence.

Defendant claims that failure to obtain the messages represents ineffective

assistance of counsel.

          Ms. Van Amerongen and Mr. Letang did not provide ineffective assistance

of counsel by failing to obtain Defendant’s text messages.          Both attorneys

ascertained the existence of a conflict of interest and were granted leave by the

Court within one week of appointment as Defendant’s counsel.           Due to the

conflicts of interest and the abbreviated time of representation, Ms. Van

Amerongen and Mr. Letang reasonably refrained from requesting discovery of cell

phone records on Defendant’s behalf.          The only remaining duty in existence

following termination of the attorney-client relationship is the duty of

confidentiality. 19 Any remaining duties of representation, including the duties to

conduct adequate investigation and preparation, were imputed to Trial Counsel as

Defendant’s newly appointed counsel.

18
     Younger, 580 A.2d at 556.
19
     See Del. Prof. Con. R 1.6.
                                          8
       Trial Counsel did not provide ineffective assistance of counsel by failing to

obtain Defendant’s text messages. Trial Counsel followed up on Defendant’s

representations regarding the messages by discussing the matter with the Attorney

General’s Office.20      The Deputy Attorney General stated on the record that

Defendant did not have a deal in place with the Wilmington Police Department and

that Defendant’s claims were untrue.21            Nevertheless, Trial Counsel hired an

investigator to run a check on Defendant’s phone records.22 The result of the

investigation did not prove helpful to Defendant’s case. 23 After considering the

issues presented by Defendant’s case, Trial Counsel exercised professional

judgment and encouraged Defendant to accept the plea to avoid at least a decade of

jail time. 24

       In the Motion for Postconviction Relief filed by Defendant as a self-

represented litigant, Defendant asserts that Trial Counsel’s failure to investigate

and file a motion to suppress evidence seized from Room 174 represents

ineffective assistance of counsel.25 Defendant argues that “Mr. Collins failed to

listen to his client’s information. According to Defendant, had Trial Counsel done


20
   Collins Aff. 4.
21
   Id.
22
   Id.
23
   Id.
24
   Id.
25
   Prior to reassignment, Defendant filed a pro se motion to suppress evidence seized from Room
174. The Court forwarded Defendant’s pro se motion to Trial Counsel. Trial Counsel withdrew
the motion on Defendant’s behalf.
                                              9
this and investigated Defendant’s claims, Trial Counsel would have concluded that

that the search of the motel room was illegal.” 26

       Trial Counsel did not provide ineffective assistance of counsel by failing to

investigate and file a motion to suppress evidence. Trial Counsel closely reviewed

the facts and law by which Defendant sought to challenge the seizure of evidence

and determined that the proposed challenge had no merit.27 Trial Counsel notified

Defendant in writing that Trial Counsel believed that a motion to suppress was not

supported by the facts or law. 28 Trial Counsel advised Defendant that he would not

file a motion to suppress and also advised Defendant regarding the plea offered by

the State.     Specifically, Trial Counsel advised Defendant that accepting the

proffered plea offer was in Defendant’s best interest.29 Defendant followed the

advice of Trial Counsel and accepted the State’s plea offer.30

       Defendant asserts that Trial Counsel’s failure to pursue an actual innocence

claim on Defendant’s behalf represents ineffective assistance of counsel which

resulted in a miscarriage of justice not procedurally barred by Superior Court Rule

61(i). To the contrary, the Court finds that Trial Counsel reasonably exercised

26
   Def.’s Mot. for Postconviction Relief, 11.
27
   Collins Aff. 3.
28
   Id.
29
   Id. at 4.
30
   The Delaware Lawyers’ Rules of Professional Conduct confer upon the client the ultimate
decision concerning the objectives of representation, including the decision to enter a plea in a
criminal case. See Del. Prof. Con. R. 1.2 cmt. 1. The means by which those objectives are to be
pursued are within the technical and legal discretion of the lawyer, subject to the communication
requirements set forth in Rule 1.4. Id.
                                               10
professional judgment in declining to assert Defendant’s pretrial actual innocence

claim. Trial Counsel closely examined the validity of the probation search and the

numerous items of contraband discovered in Room 174. 31 Trial Counsel advised

Defendant that a plea of guilty and acceptance of the State’s offer was Defendant’s

best option under the circumstances. Trial Counsel considered the substantial

evidence against Defendant, if presented by the State at trial, might result in a

conviction on all charges at trial.32               Accordingly, Defendant’s claims for

ineffective assistance of counsel do not warrant relief under Rule 61(i)(5).

       C. Defendant’s Claim of Actual Innocence

       Defendant’s second ground for postconviction relief alleges actual

innocence. Defendant contends, “had [Defendant] been afforded the luxury [sic]

of having evidence which would have been available to him; he would have

showed to a legal certainty that he was innocent of the crimes against him.” 33 The

Court finds that Defendant’s assertion of actual innocence does not represent

meritorious grounds for postconviction relief.

         Defendant acknowledged his guilt in open court. The Court emphasized

that dismissal of other counts against Defendant reflected Defendant’s acceptance

of responsibility. Defendant secured a favorable plea offer to avoid approximately


31
   Collins Aff. 4.
32
   Id.
33
   Def.’s Mot. for Postconviction Relief, 7.
                                               11
twenty (20) years of incarceration if convicted at trial. A voluntary guilty plea

waives a defendant’s right to challenge any errors or defects before the plea, even

those of constitutional dimension.34          In the absence of “clear and convincing

evidence” to the contrary, a movant is bound by his signature of the guilty plea

form and by his statements made in the plea colloquy. 35 Defendant is bound by the

statements he made to this Court before his plea was accepted. 36

       D. Defendant’s Claim of Fourth Amendment Violations

       Defendant’s final ground for postconviction relief asserts that the search of

Room 174 was in violation of Defendant’s Fourth Amendment rights. Defendant’s

claim is barred as an assertion of grounds for relief that has already been

adjudicated.

       As previously noted, Trial Counsel’s decision to withdraw Defendant’s pro

se Motion was a reasonable exercise of professional judgment. Trial Counsel

communicated to the Defendant that the motion would not be filed, as Trial

Counsel believed it was without merit and not supported by facts.            Even if

Defendant’s Fourth Amendment claim was not procedurally barred, Trial Counsel




34
   Smith v. State, 2004 WL 120530, at *1 (Del. Jan. 5, 2004).
35
   Id.
36
   See Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
                                               12
has provided the Court with adequate explanation for his decision to withdraw

Defendant’s pro se Motion to Suppress Evidence.37

       E. There is No Colorable Claim of Miscarriage of Justice

       Procedural bars for a postconviction claim are not applicable to 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.” 38 In Wright v. State, the

Delaware Supreme Court applied the narrow “miscarriage of justice exception” of

Rule 61(i)(5) to the defendant’s claims of Brady violations.39 In Wright, the

defendant was granted a new trial based on the cumulative error of three Brady

violations. 40 The Court determined there was a reasonable probability that the

verdict might have been different and determined that the cumulative impact of the

violations created doubt in the outcome of trial.41 Accordingly, the case was

remanded for a new trial. 42

       Unlike the circumstances in Wright, Defendant’s contentions fall short of

establishing colorable Brady violations when considered individually or



37
   See supra, Part II.B.
38
   Super. Ct. Crim. R. 61(i)(5).
39
   Wright v. State, 91 A.3d 972, 985-86 (Del. 2014) (“[I]t is well established that a colorable
Brady v. Maryland violation falls within the miscarriage of justice exception.”).
40
   Id. at 983.
41
   Id. at 993-94.
42
   Id. at 994.
                                              13
cumulatively. As discussed above, 43 Defendant’s claims do not raise concerns of

fairness and reliability and there were no Brady violations.

           Defendant's defaults are not excused. Defendant has not demonstrated that

reconsideration of the claims is warranted in the interest of justice. Nor has

Defendant presented a colorable claim of a miscarriage of justice because of a

constitutional violation to warrant application of the exception in Rule 61(i)(5).

The fundamental legality, reliability, integrity and fairness of the proceedings

leading to Defendant's conviction and sentencing are sound.

     II.      RULE 61 COUNSEL’S MOTION TO WITHDRAW AS COUNSEL

           Rule 61 Counsel filed a Motion to Withdraw as Counsel pursuant to

Superior Court Criminal Rule 61(e)(6) on the grounds that Defendant failed to

assert meritorious grounds for postconviction relief.                  Withdrawal may be

appropriate when “counsel considers the movant’s claim to be so lacking in merit

that counsel cannot ethically advocate it, and counsel is not aware of any other

substantial ground for relief available to the movant . . . .”44 The Court must

conduct a review of the record to determine whether Defendant’s motion contains

any reasonable ground for relief.45



43
   See generally Section I, II, infra (discussing the merits of Defendant’s Brady claims that the
State withheld information useful to implicate another person; impeach Gaines; and failing to
disclose the entirety Miller’s statements).
44
   Super. Ct. Crim. R. 61(e)(6).
45
   State v. West, 2013 WL 6606833, at *3 (Del. Super. Dec. 12, 2013).
                                               14
      Rule 61 Counsel asserts that he has conducted careful and conscientious

analysis of Defendant’s case materials in order to evaluate Defendant’s claims.

Following his analysis, Rule 61 Counsel has determined that Defendant’s case

presents no arguable issues to ethically advocate.        The Court has reviewed

Defendant’s Motion and determined that Defendant presents no meritorious

grounds for relief. Accordingly, withdrawal as counsel is appropriate.

                                III.   CONCLUSION

      Defendant’s claims of ineffective assistance of counsel are without merit and

do not warrant relief under Rule 61(i)(5). Defendant fails to establish that Ms. Van

Amerongen, Mr. Letang, and Trial Counsel’s conduct fell below the objective

standard of reasonableness set forth in Strickland. Defendant’s assertion of actual

innocence does not represent meritorious grounds for postconviction relief.

Defendant’s Fourth Amendment claim is procedurally barred as formerly

adjudicated. There is no colorable claim of a miscarriage of justice.

      NOW, THEREFORE, on this 4th day of March 2015, Defendant’s

Motion for Postconviction Relief is hereby DENIED and Rule 61 Counsel’s

Motion for Withdraw as counsel is hereby GRANTED.

      IT IS SO ORDERED.
                                Andrea L. Rocanelli
                                _____________________________________
                                The Honorable Andrea L. Rocanelli


                                         15
