IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) I.D. No. 1505013606
) In and for Kent County
V- )
) RK15-07-0546-01 Murder Z“d (F)
DA MIER HARMON, ) RK15-07-0548-01 PFDCF (F)
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Stephen R. Welch, Jr., Esquire, Deputy Attorney General, Department of Justice, for
the State of Delaware.

Damier Harrnon, Pro se.

FREUD, Commissioner
October 12, 2018

The defendant, Da Mier Hannon ("Harrnon"), pled guilty the day his trial Was
set to begin November 29, 2016 to one count of Murder in the Second Degree, as a
lesser included offense of Murder in the First Degree, l l Del. C. § 635, and one count
of Possession of a Firearrn During the Comrnission of Felony ll Del. C. § l447A.
In exchange for his plea the State entered nolle prosequis on the remaining counts
including one count of Robbery in the First Degree, one count of Possession of

Firearm by a Person Prohibited, and one additional count of Possession of a Firearrn

State v. Harmon
ID No. 1505013606
October 12, 2018

During the Commission of a Felony. As part of the Plea Agreement the State
recommended a maximum sentence of thirty years incarceration. Due to the nature
of the charges Harmon faced mandatory life in prison had he been convicted of the
lead charge of First Degree Murder. A presentence office investigation Was ordered
and the defense presented detailed mitigating evidence. At the sentencing on
February 28, 2017 Harmon again admitted his complicity and asked for forgiveness
from the victims family. The Court agreed With the State's recommendation and
sentenced Harmon to a total of fifty years incarceration suspended after thirty years
for probation, eighteen of which Were minimum mandatory. Harmon did not appeal
his conviction or sentence to the Delaware Supreme Court. He filed, pro se, the
pending motion for postconviction pursuant to Superior Court Criminal Rule 61 on
August 7, 2017 alleging ineffective assistance of counsel. He also requested the
appointment of counsel. This court denied that request pursuant to Superior Court
Criminal Rule 6l(e)(2). Next Harmon filed a Writ of Mandamus With the Delaware
Supreme Court concerning this Court’s denial of his request for appointment of
counsel. The Supreme Court denied the Writ on February 13, 2018l and the matter
Was set for briefing on the pending postconviction motion.
FACTS
According to the Probable Cause Affidavit2 and the transcript from the

 

1 IMO the Petition of Damier Harmon for a writ of mandamus, Del. Supr. No. 42, 2018,
Traynor, J. (Feb. 13, 2018).

2 State v. Harmon, Del. Super. ID No. 1505013606, D.I. 1.

2

State v. Harmon
ID No. 1505013606
October 12, 2018

Preliminary Hearing,3 at approximately 8 :54 p.m. on May 13, 2015 Dover Police were
dispatched to Harmony Lane north of Walker Road in Dover in reference to a
shooting. Upon arriving at the scene Detective Wood of Dover Police Department
located the victim Gary Adams (“Adams”) on the ground with a gunshot wound to
his left upper chest. Adams was taken to Kent General Hospital were he was declared
dead. A subsequent autopsy determined that Adams died as a result of a gunshot
wound and the death was found to be a homicide.

Detective Wood spoke with witness # l who told the officer that he and Adams
had agreed to meet two individuals via text message in order to sell them some
marijuana Witness # l stated that Adams’ cell phone’s battery had run out so Adams
used witness # l's cell phone to text the individual they thought intended to purchase
the marijuana Witness # l allowed the police to view his cell phone and see the text
messages and the phone number of the individual who was arranging the meeting.
Witness # l stated that when he and Adams arrived on Harmony Lane they were
directed where to park their car and two suspects one tall thin black male, later
identified as Bruce Manlove (“Manlove”), Harmon’ s co-defendant, and one a shorter
heavyset black male, later identified as Harmon, approached the vehicle and Adams
handed a bag of marijuana to Manlove who put it in his pocket according to witness
# l. At this point witness # l stated that Harmon produced a handgun and ordered

Adams to turn over his property. Adams got out of the vehicle and a scuffle ensued.

 

3 Harmon., D.I. 3.

State v. Harmon
ID No. 1505013606
October 12, 2018

Witness # l observed the scuffle and heard a single gunshot then saw Adams collapse
on the ground at which point the two suspects fled the scene in a southbound
direction. A single 9 mm casing was found at the scene.

Detective Wood also interviewed a second witness. Witness # 2 stated he lived
in the neighborhood and was outside when he saw two persons he identified as “BJ”
and “Hamburger.” BJ being a tall skinny black male and Hamburger being a short
heavyset black male. Witness # 2 stated he saw the car, later identified as the one
witness # l and Adams were in, pull into the neighborhood Witness # 2 stated he
saw BJ and Hamburger walk up to the car. Witness # 2 was speaking with an
acquaintance when he looked up a second time and saw the passenger from the car
struggling with BJ and Hamburger. Witness # 2 then heard a gunshot and saw Adams
collapse. As they ran away witness # 2 saw Hamburger trying to tuck something into
his sweatshirt. Witness # 2 told the police that Hamburger lives at the entrance to the
neighborhood and was on home confinement. The investigation revealed that
Harmon lives where witness # 2 said “Hamburger” lives and that Harmon was on
Level 4 monitoring and was in the vicinity at the time of the murder. The
investigation also revealed that shortly after the murder Harmon had cut off his ankle
bracelet and fled the area. Witness # 2 positively identified Manlove as “BJ,” the tall
skinny black male. He also identified Harmon as “Hamburger,” the shorter heavy set
black male. Manlove and Harmon were apprehended at a hotel in Philadelphia a
short time after the crime and extradited to Delaware. Manlove confessed to his

involvement in the crime and implicated Harmon as the shooter. As part of his plea

4

State v. Harmon
ID No. 1505013606
October 12, 2018

agreement Manlove agreed to testify at Harmon’s trial.

HARMON’S CONTENTIONS

In his motion Harmon raises the following grounds for relief:

Ground one:

Ground two:

Ground three:

Ineffective Counsel.

Did Counsel fail to investigate into facts relevant to
preparing defense for trial, or arguement (sic) for
less time, resulting in prejudice and failure to aid
client?

Ineffective Counsel and Due Process.

Was plea accepted knowingly and intellegently (sic),
and, did counsel use coercive tactic in getting
defendant to sign plea?

Ineffective Counsel.

Was Counsel’s failure to request “change of venue”
ineffective, When victims father was Police officer in
County where crime was committed?

DISCUSSION

Under Delaware law, this Court must first determine whether Harmon has met

the procedural requirements of Superior Court Criminal Rule 6l(i) before it may

consider the merits of his postconviction relief claim.4 This is Harman’s first motion

for postconviction relief, and it was filed within one year of his conviction becoming

final. Therefore, the requirements of Rule 61 (i)(l) - requiring filing within one year

 

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

5

State v. Harmon
ID No. 1505013606
October 12, 2018

and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Harmon’s claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 61 (i)(3), absent a demonstration of cause
for the default and prejudice. All of Harrnon’s claims are based on ineffective
assistance of counsel; therefore, he has alleged cause for his failure to have raised
them earlier.

At this point, Rule 61(i)(3) does not bar relief as to Harmon’s grounds for
relief, provided he demonstrates that his counsel was ineffective and that he was
prejudiced by counsel’s actions. To prevail on his claim of ineffective assistance of
counsel, Harmon must meet the two-prong test of Strickland v. Washington.5 In the
context of a guilty plea challenge, Strickland requires a defendant show: (l) that
counsel’s representation fell below an objective standard of reasonableness; and (2)
that counsel’s actions were prejudicial to him in that there is a reasonable probability
that, but for counsel’s error, he would not have pled guilty and would have insisted
on going to trial and that the result of a trial would have been his acquittal.6 The
failure to establish that a defendant would not have pled guilty and would have
proceeded to trial is sufficient cause for denial of relief.7 In addition, Delaware courts

have consistently held that in setting forth a claim of ineffective assistance of counsel,

 

5 466 U.S. 668 (1984).

6 Id. at 687.

7 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. 1988))(citations omitted).

State v. Harmon
IDy No. 1505013606
October 12, 2018

a defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal8 When examining the representation of counsel pursuant
to the first prong of the Strz`cklana' test, there is a strong presumption that counsel’s
conduct was professionally reasonable.9 This standard is highly demanding.10
Strickland mandates that, When Viewing counsel’s representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”11
Following a complete review of the record in this matter, it is abundantly clear
that Harmon has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective. l find trial counsel’s affidavit, in conjunction with the
record, more credible that Harrnon’s self-serving claims that his counsel’s
representation was ineffective. Harmon’s counsel clearly denies the allegations
As noted, Harmon was facing the possibility of mandatory life in prison had
he been convicted, and the sentence and plea were reasonable under all the
circumstances, especially in light of the overwhelming evidence against him. Prior

to the entry of the plea, Harmon and his attorney discussed the case. The plea bargain

was clearly advantageous to Harmon. Counsel’s representation was certainly well

 

8 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *1 (Del. Supr.)).

9 Albury, 551 A.2d at 59 (citing Sm'ckland, 466 U.S. at 689).

10 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
U.S. 365, 383 (1986)).

11 Strickland, 466 U.S. at 689.

State v. Harmon
ID No. 1505013606
October 12, 2018

within the range required by Strickland. Additionally, when Harmon entered his
guilty plea, he stated he was satisfied with defense counsel’s performance He is
bound by his statement unless he presents clear and convincing evidence to the
contrary.12 Consequently, Harmon has failed to establish that his counsel’s
representation was ineffective under the Stricklana' test.

Even assuming, arguendo, that counsel’s representation of Harmon was
somehow deficient, Harmon must satisfy the second prong of the Stricklana' test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.13 In an attempt to show prejudice, Harmon simply asserts that his counsel
was ineffective His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, l find Harmon’s grounds for relief are
meritless.

To the extent that Harmon alleges his plea was involuntary, the record
contradicts such an allegation When addressing the question of whether a plea was

constitutionally knowing and voluntary, the Court looks to a plea colloquy to

 

12 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (Del. 1994)).

13 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
556 (Del. 1990)).

State v. Harmon
ID No. 1505013606
October 12, 2018

determine if the waiver of constitutional rights was knowing and voluntary.14 At the
guilty-plea hearing, the Court asked Harmon whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Harmon if he understood he would waive his
constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and
whether he gave truthful answers to all the questions on the form. The Court asked
Harmon if he had discussed the guilty plea and its consequences fully with his
attorney. The Court asked Harmon if he was entering into the plea as he was guilty
of the charges. The Court also asked Harmon if he was satisfied with this counsel’s
representation Harmon answered each of these questions af`firmatively.15
Additionally at his sentencing Harmon acknowledged his guilt and requested
forgiveness from his victims’s family.16 l find counsel’s representations far more
credible than Harrnon’s self-serving, vague allegations.

Furthermore, prior to entering his guilty plea, Harmon signed a Guilty Plea
Form and Plea Agreement in his own handwriting Harmon’s signatures on the forms
indicate that he understood the constitutional rights he Was relinquishing by pleading

guilty and that he freely and voluntarily decided to plead guilty to the charges listed

 

14 Godmez v. Moran, 509 U.s. 389, 400 (1993).

15 State v. Harmon, Del. Super., ID No. 1505020549, (Nov. 29, 2015), Tr. of Plea at 18
to 28.

16 Harmon, Del. Super., ID No. 1505020549 (Feb 28, 2016), Tr. of Sentencing at 9.

9

State v. Harmon
ID No. 1505013606
October 12, 2018

in the Plea Agreement. Harmon is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.17 I
confidently find that Harmon entered his guilty plea knowingly and voluntarily and
that Harmon’s grounds for relief are completely meritless.
CONCLUSION

I find that Harmon’s counsel represented him in a competent and effective
manner and that Harmon has failed to demonstrate any prejudice stemming from the
representation I also find that Harmon’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Harmon’s motion for postconviction

relief as procedurally barred and completely meritless.

/s/ Andrea M Freud
Commissioner

vAMF/dsc

 

17 Sommerville, 703 A.2d at 632.
10

