IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ID No. 1805011554

In and for Kent County
V.

BRENT M. HARRIS,

)
)
)
) RK18-06-0371-01
) Tier 5 Poss (F)
)
)

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Sean A. Motoyoshi, Esquire, Deputy Attorney General, Department of Justice, for
the State of Delaware.

Brent M. Harris, Pro se.

FREUD, Commissioner
February 21, 2020

The defendant, Brent M. Harris (“Harris”), pled guilty on April 24, 2019 to
one count of Tier 5 Possession, 16 Del. C. § 4752(3). He also faced one count of Tier
4 Drug Dealing, one count of Possession of Marijuana, one count of Possession of
Drug Paraphernalia, one count of Following too Closely and one count of Failure to
Signal which were nolle prossed by the State in exchange for Harris’s plea. The State
and Defense recommended a sentence of twenty-five years incarceration, suspended

after serving two years minimum mandatory followed by one year of probation. The
Court agreed with the sentence recommendation and sentenced Harris accordingly.
Had Harris gone to trial and been found guilty as charged he faced substantially more
time in prison. Harris did not appeal his conviction or sentence to the State Supreme
Court. Instead, Harris filed a Motion for Postconviction Relief on April 29, 2019
which he withdrew subsequently. Harris then filed the pending Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61 on September 3,
2019, in which he alleges, in part, ineffective assistance of counsel.
FACTS

According to the State’s Response to the motion based upon the Affidavit of
Probable Cause, the police report attached to the State’s Reply and the Court’s
opinion following the Suppression Hearing, the following facts are noted:

On May 18, 2018, members of the Governor’s Task Force
were conducting surveillance on Dante Ward (“Ward”).
Ward was a known drug dealer and the police were
conducting surveillance. The police observed Ward drive
a black Chevrolet Tahoe bearing Delaware registration
PC40582. They watched as he traveled from his residence
at 109 Sweetgum Drive, Dover, Delaware and park at
Walmart located at 26 Jerome Drive, Dover, Delaware.
They observed Ward meet Harris in the parking lot. They
observed Harris enter the passenger side of Ward’s Tahoe
for just a few minutes and then exit. They observed Harris
get into a light blue Buick LeSabre bearing Maryland
registration 7CL8447. They observed Harris exit his
vehicle and reenter the passenger side of Ward’s Tahoe.
After just a few minutes, Harris exited the Tahoe and got
into the driver’s seat of the Buick LeSabre. The police saw
Ward drive off in the Tahoe and then moments later saw
Harris drive off in the LeSabre in a different direction. An
officer followed Harris’s LeSabre and called ahead to
another officer who observed the LeSabre following
dangerously close to an SUV. The LeSabre was less than

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a car length behind the SUV and tapped his brakes several
times as he closely followed the SUV. The officer
observed the LeSabre swerving from side to side on the
roadway as it followed the SUV. After the SUV made a
left turn, the LeSabre passed along the right shoulder of the
road and the officer conducted a traffic stop. Harris was
the lone occupant. Upon making contact with Harris, the
officer observed that the car remained in gear and was not
placed in park. The officer detected the odor of fresh
marijuana coming from the vehicle’s interior and the
officer observed a small marijuana cigarette on the
floorboard by Harris’s feet. Harris admitted to smoking
marijuana earlier in the day and admitted there was
marijuana in the center console. Harris attempted to
conceal a bag of cocaine in his pants but upon questioning
by the officer admitted it was cocaine. The cocaine was
recovered from Harris’s pants. The cocaine was collected,
processed and logged into evidence. A forensic chemist at
the Division of Forensic Science later tested the substance
found in Harris’s possession and determined it was 27.881
grams of cocaine.!

HARRIS’S CONTENTIONS
In his motion, he raises the following grounds for relief:

Ground one: Ineffective Assistance of Counsel.
Attorney failed to argue allegations of
alleged traffic violation which
petitioner was never cited for. No
documentation to validate the stop.

Ground two: Brady violation.
The State failed to disclose in it’s Rule
#16 that a Dante Ward was connected

 

' State v. Harris, Del. Super., [.D. No. 1805011554, D.I. 47.

3
Ground three:

to the defendant’s case. Denying
petitioner of an evidentiary hearing.

Tainted of Chain of Custody.

Drugs seized from the petitioner was
used as probable cause to arrest Dante
Ward. There was never any evidence
presented that the petitioner purchased
drugs from Dante Ward. The arresting
officer, Cpl. Demalto omitted pertinent
information from his police report
pertaining to the investigation and
surveillance of Dante Ward on April
18, 2018. Petitioner’s allegation of
Brady material which the State failed to
disclose in regard to State v. Ward, ID
nos. 1805011576, 1805011583 and
1805011632 was never explored by his
attorney, Suzanne Mcpherson Johnson
and she failed to provide the petitioner
with the above information upon many
requests. Petitioner alleged that this
denied him the right to a fair trial.
Petition was never provided with a
Chain of Custody Report by his
attorney as well. All information
pertaining to State v. Ward will reveal
that the petitioners’ traffic stop on May
18, 2018 was a pretextual traffic stop
which his attorney failed to raise. Cpl.
Demalto’s testimony at the petitioner’s
suppression hearing on April 8, 2019
will support his argument regarding his
arrest that this was a pretextual traffic
stop.

Attorney also failed to oppose the
State’s opposition to the State’s
response to his motion to suppress...
which the State filed late.

DISCUSSION

Under Delaware law, the Court must first determine whether Harris has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider
the merits of the postconviction relief claims.” Under Rule 61, postconviction claims
for relief must be brought within one year of the conviction becoming final.’ Harris’s
motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to
the motion. As this is Harris’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 relief
from the procedural default; and (2) prejudice from a violation of the movant's rights.‘
The bars to relief are inapplicable to a jurisdictional challenge or “to a claim that
satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d)
of Rule 61.° To meet the requirements of Rule 61(d)(2) a defendant must plead with
particularity that new evidence exists that creates a strong inference that the movant

is actually innocent in fact of the acts underlying the charges of which he was

 

* Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
* Super. Ct. Crim. R. 61(i)(1).
* Super. Ct. Crim. R. 61(i)(3).

> Super. Ct. Crim. R. 61(i)(5).
convicted? or that he pleads with particularity a claim that a newrule of constitutional
law, made retroactive to cases on collateral review by the United State or Delaware
Supreme courts, applies to the defendant’s case rendering the conviction invalid.’
Harris’s motion pleads neither requirement of Rule 61(d)(2).

None of Harris’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. To some extent each of Harris’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 Harris’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,
Harris must meet the two-prong test of Strickland v. Washington.’ In the context of
a guilty plea challenge, Strickland requires a defendant show: (1) 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.’ The failure

to establish that a defendant would not have pled guilty and would have proceeded

 

° Super. Ct. Crim. R. 61(d)(2)(i).
” Super. Ct. Crim. R. 61(d)(2)(ii).
® 466 U.S. 668 (1984).

” Id. at 687.
to trial is sufficient cause for denial of relief.'? In addition, Delaware courts have
consistently held that in setting forth a claim of ineffective assistance of counsel, a
defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.'’ When examining the representation of counsel pursuant
to the first prong of the Strickland test, there is a strong presumption that counsel's
conduct was professionally reasonable.'’? This standard is highly demanding.”
Strickland mandates that, when viewing counsel's representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”"

Following a complete review of the record in this matter, it is abundantly clear
that Harris has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective. I find trial counsel’s affidavit, in conjunction with the
record, more credible that Harris’s self-serving claims that his counsel’s
representation was ineffective. Harris’s counsel denies the allegations.

Harris was facing the possibility of substantial time in prison had he been
convicted on all the charges. The sentence and plea were very reasonable under all
the circumstances, especially in light of the evidence against him including his

admission to possession of cocaine. Prior to the entry of the plea, Harris and his

 

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

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

* Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

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

'* Strickland, 466 U.S. at 689.
attorney discussed the case. The plea bargain was clearly advantageous to Harris.
Counsel’s representation was certainly well within the range required by Strickland.
Additionally, when Harris entered his guilty plea, he stated he was satisfied with
defense counsel’s performance. He also admitted his guilt.!° He is bound by his
statement unless he presents clear and convincing evidence to the contrary.’®
Consequently, Harris has failed to establish that his counsel’s representation was
ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Harris was
somehow deficient, Harris must satisfy the second prong of the Strickland 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.'’ In an attempt to show prejudice, Harris simply asserts that his counsel
was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, I find Harris’s grounds for relief
meritless.

To the extent that Harris 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

determine if the waiver of constitutional rights was knowing and voluntary.’* At the

 

'S State v. Harris, Del. Super., I.D. No. 1805011554, (April 24, 2019), Tr. at 6.

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

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

'8 Godinez v. Moran, 509 U.S. 389, 400 (1993).

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guilty-plea hearing, the Court asked Harris whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Harris if he understood he would waive his
constitutional rights if he pled guilty including the right to suppress evidence; 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 Harris if he had discussed the guilty plea and
its consequences fully with his attorney. The Court asked Harris if he was entering
into the plea because he was guilty of the charge. The Court also asked Harris if he
was satisfied with this counsel’s representation. Harris answered each of these
questions affirmatively.'°

Furthermore, prior to entering his guilty plea, Harris signed a Guilty Plea Form
and Plea Agreement in his own handwriting. Harris’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
in the Plea Agreement. Harris is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.”° |
confidently find that Harris entered his guilty plea knowingly and voluntarily and that
Harris’s grounds for relief are completely meritless.

CONCLUSION
I find that Harris’s counsel represented him in a competent and effective

manner and that Harris has failed to demonstrate any prejudice stemming from the

 

State v. Harris, Del. Super., ID No. 1805011554 (April 24, 2019) Tr. at 1-7.

° Sommerville 703 A.2d at 632.
representation. I also find that Harris’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Harris’s motion for postconviction
relief as procedurally barred and completely meritless pursuant to Superior Court

Criminal Rule 61(i)(3) and (4).
/s/ Andrea M. Freud
Commissioner

AMF/dsc

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