IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1304003168
In and for Kent County

STATE OF DELAWARE

)
)
v- )
) RK13-04-0770-01 Assault 2nd (F)
JAMES A. WILSON, ) RK13-04-0772-01 Police Signal (F)
) RK13-04-0779-01 Dr. Right Side (V)
) RK13-()4-0780-01 Red-Veh Stop (V)
) RK13-04-0781-01 Unsafe Speed (V)

Defendant.

ORDER

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Submitted: May 3, 2018
Decided: June 19, 2018

Upon consideration of Defendant J ames A. Wilson’s (“Mr. Wilson’s”) Motion
for Postconviction Relief, the Commissioner’s Report and Recommendation (the
“Report”), Mr. Wilson’s appeal, the State’s response and the record in this case, it
appears that:

1. Mr. Wilson Was found guilty, following a jury trial on March 9, 2016
of one count of Assault in the Second Degree, 11 Del. C. § 612; one count of
Disregarding a Police Signal, 21 Del. C. § 41()3; one count of Driving on the Wrong
Side of the Roadway, 21 Del. C. § 4114; one count of Failure to Stop at a Red Light,
21 Del. C. § 4108; and one count of Driving at an Unreasonable Speed, 21 Del. C. §
4168.

2. On April 18, 2016, the State filed a motion to declare Mr. Wilson to be

an habitual offender pursuant to 11 Del. C. § 4214(a). Prior to and at sentencing, Mr.
Wilson and his attorney agreed that his prior criminal record qualified him to be
sentenced as an habitual offender. Nevertheless, the State and the defense jointly
requested to declare Mr. Wilson to be an habitual offender with respect to the charge
of Disregarding a Police Officer Signal and not on the Assault charge. Therefore, on
September 13, 2016, the Court sentenced Mr. Wilson to a total of seven years
incarceration, followed by decreasing levels of probation.

3. Mr. Wilson then filed a timely Notice of Appeal to the Delaware
Supreme Court. His Appellate Counsel filed a brief and motion to withdraw pursuant
to Supreme Court Rule 26(c). In the motion to withdraw, Appellate Counsel
represented that he conducted a conscientious review of the record and concluded that
no meritorious issues existed. By letter, counsel informed Mr. Wilson of the
provisions of Rule 26(c) and attached a copy of the motion to withdraw and his
accompanying brief. Mr. Wilson was informed of his right to supplement his
attorney’s presentation. He, pro se, then raised five issues in his appeal to the
Supreme Court. Those issues were in large part the same issues he raises in the
present motion.

4. After the Supreme Court affirmed this Court’s judgment,l Mr. Wilson
filed his initial postconviction motion on June 12, 2017, and a supplement thereafter.
In the interim, Mr. Wilson appealed the Superior Court’s denial of his Motion for
Appointment of Counsel. On August 25, 2017, the Delaware Supreme Court
dismissed that appeal as interlocutory.2 Next, on November 6, 2017, Mr. Wilson filed

 

1 Wilson v. State, 2017 WL 1535147, at *4 (Del. Apr. 27, 2017).
2 Wilson v. State, 2017 WL 3686768 (Del. Aug. 25, 2017).

2

a Motion to Vacate Sentence. This Court denied it on December l, 2017.3

5. After briefing, the Commissioner considered Mr. Wilson’s Rule 61
motion. In her Report, she recommended that the Court deny it. The Court has
reviewed the Report, the record, and has also considered Mr. Wilson’s appeal
challenging the Report. His appeal raises no new issues.

NOW, THEREFORE, after a de novo review of the record in this action,
review of the Report, and considering Mr. Wilson’s appeal challenging the Report;

IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A” is adopted by the Court in its entirety.
Accordingly, Mr. Wilson’s Motion for Postconviction Relief pursuant to Superior

Court Criminal Rule 61 is DENIED.

/QZ leff`rey l (`larlc
Judge

JJC/dsc
oc: Prothonotary

 

3 State v. Wilson, Del. Super., ID No. 1304003168, Clark, J. (Dec. 1, 2017) (ORDER).

3

EXhibit A

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ID. No. 1304003168
In and for Kent County
v.
RKl3-04-0770-01 Assault 2nd (F)
RK13-04-0772-01 Police Signal (F)
RK13-04-0779-01 Dr. Right Side (V)
RK13-04-0780-01 Red-Veh Stop (V)

RKl3-04-0781-01 Unsafe Speed (V)

JAMES A. WILSON,

Defendant.

\./\./\./\./\/VV`/

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Gregory R. Babowal, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

J ames A. Wilson, Pro se

FREUD, Commissioner
February 14, 2018

The defendant, James A. Wilson (“Wilson”), was found guilty on March 9,
2016 by a jury of one count of Assault in the Second Degree, ll Del. C. § 612; one
count of Disregarding a Police Signal, 21 Del. C. § 4103; one count of Driving on the
Wrong Side of the Roadway, 21 Del. C. § 4114; and one count of Failure to Stop at
a Red Light, 21 Del. C. § 4108; and one count of Driving at an Unreasonable Speed,

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

21 Del. C. § 4168. An Investigative Services Office report was ordered. On April
18, 2016 the State filed a motion to declare Wilson an habitual offender pursuant to
1 1 Del. C. § 4214(a). Prior to and at sentencing, Wilson and his attorney agreed that
his prior criminal record qualified him to be sentenced as an habitual offender. The
State and the defense made a joint request to the court to sentence Wilson under the
habitual statute only on the charge of Disregarding a Police Officer Signal and not on
the Assault charge. The Court granted the State’s motion and declared Wilson an
habitual offender. On September 13, 2016 Wilson was sentenced to a total of seven
years incarceration, two of which were as an habitual offender followed by probation.

A timely Notice of Appeal to the DelaWare Supreme Court was filed.
Wilson’s Appellate Counsel filed a brief and motion to withdraw pursuant to
Supreme Court Rule 26(c). In the motion to Withdraw, Appellate Counsel
represented that he conducted a conscientious review of the record and concluded
that no meritorious issues existed. By letter, counsel informed Wilson of the
provisions of Rule 26(c) and attached a copy of the motion to withdraw and
accompanying brief . Wilson was informed of his right to supplement his attorney’s
presentation. Wilson, pro se, raised five issues for appeal for the Supreme Court
to consider, which the Supreme Court summarized as follows:

(5) Wilson raises five issues in response to his counsel’s
Rule 26(c) brief on appeal. First, he contends that his
arrest was illegal because the search warrant did not
authorize his seizure outside of the Many Things Building.
Second, Wilson asserts that evidence was insufficient to
prove second degree assault because the jury acquitted him

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

of PDWCF. Third, he contends that the evidence was
insufficient to prove a felony charge of disregarding an
officer’s signal. Fourth, he argues that the evidence was
insufficient to prove second degree assault because he
lacked the requisite state of mind. Finally, he contends that
his trial counsel was ineffective Because the Court will
not consider a claim of ineffective assistance of counsel for
the first time on direct appeal, FNl we only address Wilson’s
first four claims.l

FNl Johnson v. State, 962 A.2d 233, 234 (Del. 2008)

The Supreme Court granted the State’s motion to affirm as to all of Wilson’s
claims.2 Next, Wilson, pro se, filed a Motion for Postconviction Relief pursuant
to Superior Court Criminal Rule 61. In his motion, Wilson raises three grounds for
relief alleging ineffective assistance of counsel in a variety of ways.

FACTS

The following is a summary of the facts as noted by the Supreme Court in its

opinion on Wilson’s direct appeal:

(3) The trial record fairly reflects that, on April 4, 2013,
Dover Police had a warrant to search a business called
Many Things located on West Loockerman Street in
Dover. The warrant also authorized police to search the
persons of James Wilson and Leonard Ingram, the
business’ owners. When police arrived, neither man was
in the building. One of the detectives left the building and

 

1 Wilson v. State, 2017 WL 1535147, at *2 (Del. Supr.).

2 Id. at *4.

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

recognized Wilson standing nearby on the sidewalk next to
a car. The detective directed nearby back-up officers to
detain Wilson, The back-up officers, who were in full
tactical uniform with the word ‘POLICE’ written on the
front and back, pulled their vehicle in front of Wilson’s
vehicle. They exited their vehicle with their weapons
drawn, identified themselves as police officers, and ordered
Wilson to stop. Wilson did not stop. Instead, he pulled
away from the officers in reverse, backed up his car into a
parking lot and then drove away from the officers in the
opposite direction. One block later, Wilson ran a red light
and broadsided a pick-up truck, injuring the driver.

(4) At the close of the State’s evidence, Wilson’s counsel

filed a motion for a judgment of acquittal, which the
Superior Court denied. Wilson then testified at trial that he
fled when he saw officers approaching him with guns
drawn because he thought they were going to shoot him.
His panic led to the car accident, but he asserted that he
never intended to assault anyone. The jury convicted
Wilson of second degree assault and disregarding an
officer’s signal, as well as related traffic offenses, but
acquitted him of PDWCF.3

WILSON’S CONTENTIONS
In his motion, Wilson raises three grounds of relief as follows:

Ground one: Superior Court lack jurisdiction to try
or convict violation 5“`, 7th, 14th
Amen. Defendant was indicted on

 

3 Wilson, 2017 WL 1535147, at *1.

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

Ground two:

Ground three:

Under Delaware law, this Court must first determine whether Wilson has met
the procedural requirements of Superior Court Criminal Rule 61(1) before it may
consider the merits of his postconviction relief claim.4 Under Rule 61, postconviction
claims for relief must be brought within one year of the conviction becoming final.5

Wilson’s motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not

 

physical injury and not serious physical
injury according to statute for 2nd
degree Assault title ]1. Del. 612.
Indictment defective see indictment
attached see memorandum attached.

Ineffective assistance of counsel
violation of 6th Amend 7th 14th.
Counsel fail to get the indictment
dismissed, did not file motion to
dismiss, fail to suppress Affidavit of
probable cause, and search warrant.
See memorandum attached.

Ineffective assistance of appealate (sic)
counsel violation of 6th Amend 7th l4th.
Appeallate (sic) counsel fail to file
dismissal of indictment instead filed
non-meritorious brief. See memoran-
dum attached.

DISCUSSION

4 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

5 Super. Ct. Crim. R. 61(i)(1).

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

apply to the claims raised in his motion, As this is Wilson’s initial motion for
postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any
claim not previously asserted in a postconviction motion, does not apply either.

Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for the
procedural fault and (2) prejudice from a violation of the movant’s rights.6 The bars
to relief are inapplicable to a jurisdictional challenge or to a colorable claim or
miscarriage of justice stemming from a constitutional violation that “undermines the
fundamental legality, reliability, integrity or fairness of the proceeding leading to the
judgment of conviction.”7

To some degree Wilson’s first ground for relief is a restatement of the
arguments he previously raised in his direct appeal. Rule 61(i)(4) bars any ground
for relief that was formerly adjudicated unless reconsideration of the claim is
warranted in the interest of justice.8 Wilson argued on appeal that there was
insufficient evidence to find him guilty of Assault in the Second Degree before and
the Supreme Court found his claim meritless. Wilson has made no attempt to argue
why reconsideration of this claim is warranted in the interest of justice. The interest

of justice exception of Rule 61(i)(4) has been narrowly defined to require that the

 

6 Super. Ct. Crim. R. 61(i)(3).
7 Super. Ct. Crim. R. 61(i)(5).

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

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

movant show that “subsequent legal developments have revealed that the trial court
lacked the authority to convict or punish” him.9 Wilson has made no attempt to
demonstrate why this claim should be revisited. This Court is not required to
reconsider Wilson’ s claim simply because it is “refined or restated.”m For this reason,
this ground for relief should be dismissed as previously adjudicated under Rule
61(i)(4).

To the extent, Wilson’s first claim can be distinguished from his arguments on
direct appeal, Wilson has claimed his Appellate Counsel was ineffective for failing
to have raised this claim and that his Trial Counsel was ineffective regarding his
second & third claims. To the degree that Wilson’s claims are newly raised they
allege ineffective assistance of counsel. These types of claims are not normally
subject to the procedural default rule, in part because the Delaware Supreme Court
will not generally hear such claims for the first time on direct appeal. For this reason,
many defendants, including Wilson, allege ineffective assistance of counsel in order
to overcome the procedural default.

However, this path creates confusion if the defendant does not understand that

the test for ineffective assistance of counsel and the test for cause and prejudice are

 

9 Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
736, 746 (Del. 1990)).

10 Riley v. State, 585 A.2d 719, 721 (Del. 1990).

7

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

distinct, albeit similar, standards.ll The United States Supreme Court has held that:

[i]f the procedural default is the result of ineffective

assistance of counsel, the Sixth Amendment itself requires

that responsibility for the default be imputed to the State,

which may not ‘[conduct] trials at which persons who face

incarceration must defend themselves without adequate

legal assistance’ [;] [i]neffective assistance of counsel, then,

is cause for a procedural default.12
A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the
mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two part analysis enunciated in Strickland v. Washington13 and
adopted by the Delaware Supreme Court in Albury v. Stazfe.14

The Stricklana' test requires the movant show that counsel's errors were so

grievous that his performance fell below an objective standard of reasonableness15

Second, under Strickland the movant must show there is a reasonable degree of

probability that but for counsel's unprofessional error the outcome of the proceedings

 

11 State v. Gattis, 1995 Del. Super. LEXIS 399, at *13.
12 Murray v. Carrier, 477 U.S. 478, 488 (1986).

13 466 U.S. 668 (1984).

14 551 A.2d 53, 58 (Del. 1988).

15 466 U.S. at 687-88; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

8

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

would have been different, that is, actual prejudice.16 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.17

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.18 However, the showing of prejudice is so central
to this claim that the Stricklana' court stated "[i]f it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."19 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation were true, the Court may dispose of the claim on this basis
alone.20 Furthermore, the defendant must rebut a “strong presumption” that trial

counsel’s representation fell within the “wide range of reasonable professional

 

16 466 U.S. at 694; see Dawson, 673 A.2d at 1190; Accord, e.g., Zebroski v. State, 822
A.2d 1038, 1043 (Del. 2003); Ayers v. State, 802 A.2d 278, 281 (Del. 2002); Steckel v. State,
795 A.2d 651, 652 (Del. 2002); ]0hrlS0n v. Sfafe, 813 A.2d 161, 167 (Del. 2001); Bidla€h V.
Stale, 773 A.2d 383, 387 (Del. 2001); Oul`ten V. State, 720 A.2d 547, 552 (Del. 1998); Skifmer
v. Sta[e, 607 A.2d 1170, 1172 (Del. 1992); Flamer V. S[al‘e, 585 A.2d 736, 753-754 (Del. 1990).

17 See, e.g., Outten v. State, 720 A.2d 547, 552 (Del. 1998); Righter v. State, 704 A.2d
262, 263 (Del.1997); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Skinner v. State, 1994
Del. LEXIS 84; Brawley v. State, 1992 Del. LEXIS 417; Younger v. State, 580 A.2d 552, 556
(Del. 1990); Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989). Accord Wells v. Petsock, 941
F.2d 253, 259-60 (3d Cir. 1991).

18 466 U.S. at 687.
19 Id. at 697.
20 State v. Gattis, 1995 Del. Super. LEXIS 399, at *13.

9

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

assistance,” and this Court must eliminate from its consideration the “distorting
effects of hindsight when viewing that representation.”21

In the case at bar, Wilson attempts to show cause for his procedural default by
making merely conclusory assertions of ineffectiveness of counsel. In regards to
prejudice, Wilson simply claims that the failure of Trial and Appellate Counsel to
raise certain issues was prejudicial Under the circumstances of the case, Wilson’s
allegations are meritless. The Supreme Court found no error in the trial. Additionally
Wilson was given an opportunity to raise any issues he deemed appropriate on appeal
following his Appellate Counsel’s motion to Withdraw. Wilson did in fact raise
several issues. Thus his claims are meritless The record indicates that Wilson’s Trial
Counsel did in fact raise all appropriate arguments.22 He also, contrary to Wilson’s
claims, did in fact file a motion to dismiss based upon an illegal seizure which the

court denied.23 Wilson has utterly failed to demonstrate prejudice as a result of his

Trial or Appellate Counsel’s alleged failure. This failure is fatal to Wilson’s motion.

 

21 466 U.s. at 689; Dawson, 673 A.zd at ii90; Wrighr v. srare, 671 A.2d 1353, 1356
(Del. 1996).

22 See Affidavit of Counsel, D.I. 71.

23 Ia'. Due to an oversight Wilson’s Appellate Counsel was not asked by the Court to file an
affidavit concerning his representation Afier receiving the file I have determined that under the facts
of the case, specifically Appellate Counsel’s motion to withdraw on appeal and the State’s motion
to affirm and the Supreme Court granting said motion, that there is no need to delay rendering my
report in order to at this late date request an affidavit of Appellate Counsel.

10

State v. James A. Wilson
ID No. 1304003168
February 14, 2018

His motion is therefore procedurally barred.24 Additionally
I conclude that his indictment was not flawed and his arguments are also meritless.

CONCLUSION

After reviewing the record in this case, it is clear that Wilson has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). Consequently, I
recommend that Wilson’ s postconviction motion be denied as procedurally barred by
Superior Court Criminal Rule 61(i)(3) for failure to prove cause and prejudice and

Superior Court Criminal Rule 61(i)(4) as previously adjudicated on direct appeal.

/Q/Andrr-'-a l\/l Frend
Commissioner

AMF/dsc
oc: Prothonotary

 

24 See, e.g. Wright, 671 A. 2d at 1356; Wright v. State, 1992 Del LEXIS 62; Brawley v.
State, 1992 Del. LEXIS 417.

11

