IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1211016788

)

)

RONALD DAVIS, )
)

Defendant. )

Submitted: July 7, 2017
Decided: September 6, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE SUMMARILY DISMISSED AND THE MOTION TO
WITHDRAW AS COUNSEL SHOULD BE GRANTED

Brian J. Robertson, Deputy Attorney General, Department of Justice, Wilrnington,
Delaware, Attorney for the State.

Ronald Davis, J ames T. Vaughn Correctional Center, Smyrna, Delaware.

Christopher S. Koyste, Esquire, Law Offlce of Christopher S. Koyste, LLC,
Wilmington, DE, counsel for Ronald Davis.

MAYER, Commissioner

This 6th day of September, 2017, upon consideration of Defendant’s Motion
for Postconviction Relief, the Motion to Withdraw as Counsel and the record in this
matter, the following is my Report and Recommendation.

FACTUAL AND PROCEDURAL BACKGROUND

This case began almost five years ago when Defendant was arrested after
leading law enforcement on a vehicle and foot chase. Defendant was afforded a
prompt review by the court and a preliminary hearing was held on November 28,
2012.' At the time of arrest, Defendant was charged with multiple offenses _
including F ailure to Stop at a Stop Sign.2 Ultimately, Defendant was indicted on the
charges of Possession of a Deadly Weapon by a Person Prohibited (“PDWBPP”),
Illegal Possession of a Controlled Substance, and Resisting Arrest. On the date of
trial, the State dismissed the charge of Illegal Possession of a Controlled Substance.
Defendant was later convicted after a jury trial on the remaining charges.3 The State

then moved to declare Defendant an habitual offender and on December 6, 2013, the

 

' See D.I. # l and Transcript of Preliminary Hearing Proceedings dated November
28, 2012, Appendix at Al9-40. References to the “Appendix” herein refer to the
Appendix to Memorandum in Support of Motion to Withdraw as Counsel, D.I. #s

57 & 58.
2 See Complaint and Warrant, Appendix at A8-l9.

3 D.I. # 22.

Court granted the State’s motion.4 After filing an appeal, Defendant’s conviction
was affirmed by the Delaware Supreme Court.5

Defendant’s case then took a few turns that complicated a resolution of the
issues at bar. The Office of Defense Services (the “ODS”) filed a Motion for
Postconviction Relief to Vacate Title 16 Conviction Related to Drug Evidence (the
“ODS Motion”).6 However, upon further review, the ODS concluded that the
motion should be withdrawn because Defendant was not convicted of a drug charge.7
During this time, Defendant filed a pro se Motion for Postconviction Relief. In light
of the withdrawal of the ODS Motion, the court gave Defendant approval to submit
an amended motion. Christopher S. Koyste, Esquire (“Counsel”) was subsequently
appointed to represent Defendant with respect to his postconviction matters. Despite
this, Defendant filed two (2) additional pro se amended motions for postconviction

relief.8 Counsel has reviewed each of Defendant’s pleadings9 and has filed a

 

4 D.I. #s 24-25.

5 D.I. # 39.
6 D.I. # 36.
7 D.I. # 42.
8 Defendant’s papers can be found at D.I. #s 38, 49 and 53.

9 The Motion to Withdraw included a review of all claims raised by Defendant in
his papers filed on August 18, 2014, July 18, 2016 and May 12, 2017.

l\/Iemorandum in Support of Motion to Withdraw as Counsel Pursuant to Rule
6l(e)(6) (the “Motion to Withdraw”).'O At the time of the filing of the motion,
Defendant was notified that he had 30 days to file a response. Defendant did not
submit a response to the Motion to Withdraw. After reviewing the submissions, l
do not believe any additional briefing is necessary. The following is my Report and
Recommendation that Defendant’s request for postconviction relief should be
summarily dismissed
CONCLUSIONS OF LAW

Prior to ruling on a motion for post-conviction relief, the Court must first
determine whether there are any procedural bars before considering the merits of the
claims.ll Although amended multiple times over a period of several years, this is
Defendant’s first motion under Superior Court Criminal Rule 61 and it was timely
filed. However, “[i]f it plainly appears from the motion for postconviction relief and
the record of the prior proceedings in the case that the movant is not entitled to relief,
the judge may enter an order for its summary dismissal and cause the movant to be
notified.”12 After reviewing the Motion to Withdraw, Defendant’s claims, and the

record in this matter, I recommend that the motion be summarily dismissed

 

10 D.I. #S 55-58.
" Younger v. State, 580 A.2d 552, 554 (Del. 1990).

'2 Super. Ct. Crim. R. 6l(d)(5).

Although Defendant raises numerous claims, three can be dismissed at the
outset. First, Defendant’s claim that he was denied his right to due process because
he never had a preliminary hearing, and did not waive his right to a preliminary
hearing, is wholly without merit. A preliminary hearing was in fact held on
November 28, 2012, and the transcript reflects Defendant’s attendance at the hearing
as well as his counsel’s vigorous cross-examination of the witness.'3 Second,
Defendant claims he was not present at the time he was declared an habitual
offender. The record though clearly shows that Defendant was present at the
sentencing hearing when the Court granted the State’s petition.14 Third, Defendant
appears to incorporate the ODS Motion and arguments relating to an alleged Brady'5
violation with respect to the investigation at the Office of the Chief Medical

Examiner (the “OCME”). Defendant was not convicted of any drug charges though,

 

'3 Transcript of Preliminary Hearing Proceedings dated November 28, 2012,
Appendix at A19-40.

14 To the extent Defendant also argues that counsel was ineffective for failing to
advise him that he was habitual offender eligible or challenging the petition, this
claim is also belied by the record. At the April 23, 2016 Case Review Hearing, the
Court engaged in a colloquy with the Defendant wherein he acknowledged that the
State was seeking to have him declared an habitual offender and Defendant elected
to reject the State’s plea offer and proceed to trial. See Appendix at A43-47.
Further, Defendant’s record shows he was habitual offender eligible and Defendant
has offered no legal basis by which the petition may have been challenged

'5 Brady v. Maryland, 373 U.S. 83, 87 (1963).

nor was any evidence used at trial with respect to the OCME.16 In light of the above,
these arguments are wholly unsupported by the record and may be summarily
dismissed

Defendant’s remaining claims consist of numerous allegations of ineffective
assistance of counsel. 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 that but for the errors, there is a reasonable
probability that the outcome of the proceedings would have been different.17
Defendant must overcome a strong presumption that counsel’s conduct was
reasonably professional under the circumstances.18 Defendant must also show that
any alleged errors were so serious that his counsel was not hanctioning as the
“counsel” guaranteed the defendant by the Sixth Amendment.19 “A defense attorney

may not be faulted for a reasonable miscalculation or lack of foresight or for failing

 

16 See D.I. # 22. On September 4, 2013, before trial, the State dismissed the charge
of Illegal Possession of a Controlled Substance. As such, Defendant could not have
suffered any prejudice from the incident that occurred at the OCME.

17 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hl`tchens v. State,
757 A.2d 1278 (D€l. 2000).

18 State v. Wright, 653 A.2d 288, 293-94 (Del. Super., 1994) (citations omitted).

19 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).

”2° Mere allegations of

to prepare for what appear to be remote possibilities
ineffectiveness will not suffice, rather, a defendant must make and substantiate
concrete allegations of actual prejudice.21 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.22 Additionally, it is the attorney’s “right
to decide certain strategic and tactical decisions, including what witnesses to call,
whether and how to conduct cross-examination, what trial motions should be made,
and what evidence should be introduced.”23 When judging a claim of
ineffectiveness, the benchmark is “whether counsel’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.”24

Defendant argues that Trial Counsel was ineffective for failing to provide him

with a copy of a warrant prior to sentencing Defendant admits though that he was

 

20 Id (holding defense counsel provided active and capable advocacy when evidence
against Defendant was overwhelming) (citing Harrington v. Richter, 131 S. Ct. 770,
787-792 (2011)).

21 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

22 State v. Miller, 2013 WL 871320, at *4 (D€l. Super., Feb. 26, 2013).

23 State v. Cooke, 2010 WL 3734113, at * 16 (Del. Super. Aug. 19, 2010) (internal
citations omitted). See also Cooke v. State, 977 A.2d 803, 840-841 (Del. 2009).

24 State v. Wright, 2015 WL 648818 (Del. Super. Feb. 12, 2015) (citations omitted).

served with a copy of the warrant.25 There is also no constitutional right to discovery
and no obligation of counsel to provide it.26 Defendant also argues that Trial Counsel
was ineffective for failing to move to sever the PDWBPP charge and that he was
prejudiced by the presentation of his “person prohibited” status to the jury. In order
to prevail on such a claim, a defendant “must show that joinder of the offenses was
sufficiently prejudicial that it was objectively unreasonable for defense counsel not
to move for severance.”27 On September 5, 2013, the date of trial, the State and
Defendant presented a stipulation conceding the fact that Defendant was a person
prohibited as defined by the applicable statute.28 Since Defendant elected to testify,
the stipulation prevented the State from using Defendant’s prior convictions to
impeach him or to taint the jury. This strategy is frequently used by trial counsel
and cannot be said to be objectively unreasonable or to have caused Defendant
prejudice.29 Trial Counsel did not err with respect to the foregoing issues and

Defendant’s claims are without any support.

 

25 See Appendix at A219-220.

26 State v. Robinson, 2012 WL 1415645, at *3 (Del. Super. Jan. 31, 2012).

27 Dale v. State, 2017 WL 443705, at *2 (Del. Jan. 31, 2017).

28 D.I. # 20 & 22.

29 see e.g. Wheeler v. s¢aze, 2015 wL 6150936, at *3 (Del. ocr. 19, 2015) (denying

claim of ineffective assistance of counsel when defendant failed to establish a
reasonable probability that the outcome would have been different); Bell v. State,

7

The next set of claims share a common basis and in various ways argue that
Trial Counsel was ineffective for failing to move to suppress a firearm, for not
challenging the arrest, and because he did not remove himself as trial counsel. Law
enforcement observed Defendant fail to stop at a marked stop sign. Once that
occurred, the officers had reasonable and articulable suspicion to stop and detain
Defendant. When they attempted to do so, Defendant fled by car and then on foot.
Two officers testified that while pursuing Defendant, they saw him toss a firearm
over a wooden fence into an alleyway. The firearm was recovered and Defendant
admitted to possessing it. Further, Defendant was in fact originally charged with
Failure to Stop at a Stop Sign,30 and therefore that charge did form a basis for the
stop and subsequent indictment. The evidence before the Court, including the
testimony of the officers and the Defendant’s admission, did not support suppression
of the firearm. In light of the fact that great deference is given to tactical decisions
by the trial attomey, Trial Counsel will not be deemed ineffective for failing to move
to suppress the firearm, for failing to recuse himself, or for not filing a motion to

suppress the arrest.

 

1993 WL 169143, at *3 (Del. May 3, 1993) (finding defendant cannot establish
prejudice because by taking the stand to testify he subjected himself to impeachment
for his prior convictions).

30 See Charge History Record, Appendix at Al 14.

With respect to Defendant’s next claim, Trial Counsel was likewise not
ineffective for failing to move to dismiss for lack of a speedy trial. The courts review
four factors when assessing a defendant’s speedy trial rights, however, unless the
delay is lengthy enough to be “presumptively prejudicial there is no need to inquire
into the remaining factors.”31 Here, the time from indictment to trial was
approximately eight (8) months and the time from arrest to trial was just over nine
(9) months.32 On appeal, the Delaware Supreme Court already determined that the
delay in this case was not presumptively prejudicial and Defendant’s claim of a
speedy trial violation was without merit.33 As such, Trial Counsel’s failure to pursue
a motion on these grounds was not ineffective assistance of counsel.

To the extent Defendant believes counsel was ineffective for allowing Officer
Santiago to testify at trial and by not objecting to the State’s use of leading questions,

he is mistaken. Two law enforcement officers consistently testified that Defendant

 

31 See Booker v. State, 2017 WL 3014360, at *3 (Del. July l4, 2017) (holding sixteen
months from indictment to trial was not presumptively prejudicial), citing Barker v.
Wingo, 407 U.S. 514, 530 (1972); Middlebrook v. State, 802 A.2d 268, 273-74 (Del.
2002). See also State v. Taylor, 2015 WL 9592457, at *2 (Del. Super. Dec. 17, 2015)
(holding eighteen month delay was not presumptively prejudicial).

32 The right to a speedy trial attaches at the date of arrest or indictment, whichever
comes first. Mia’dlebrook v. State, 802 A.2d 268, 273 (Del. 2002).

33 See Davis v. State, No. 691,2013 (Del. Aug. 12, 2014). Although couched as a
claim of ineffectiveness of counsel, this argument is also barred by Superior Court
Criminal Rule 61(i)(4) as formerly adjudicated

ran through a marked stop sign, attempted to elude officers by car and on foot, and
they subsequently saw him throw a firearm into an alleyway. A third officer testified
that Defendant admitted to having had a gun. In this case, the only potentially
objectionable testimony that the Defendant points to was the State’s efforts to have
one of the officer’s describe the landscape and layout of the area, by way of
diagram/map, where the Defendant fled and was arrested This type of questioning
is not prejudicial and was not used for any improper purpose.34 Counsel’s lack of
objection was therefore reasonable

Finally, Counsel has raised an additional claim in an attempt to aid Defendant
herein. Counsel noted that Defendant may have appeared before the jury in prison
attire and this may have prejudiced his right to a fair trial.35 However, after analyzing
the claim, Counsel concluded it was without legal support. I agree. As Counsel
asserts, “an accused should not be compelled to go to trial in prison or jail clothing
because of the possible impairment of the presumption” of innocence.36 The

Delaware Supreme Court though has rejected an argument of ineffectiveness of

 

34 See Christl`ana Care Health Servs. v. Crist, 956 A.2d 622, 626 (Del. 2008) (“A
trial judge has broad discretion in allowing leading questions of a witness, including
during the direct examination”).

33 The trial transcript does not reflect Defendant having appeared in prison attire.

36 Estelle v. Williams, 425 U.S. 501, 504 (1976).

10

counsel when the nature of the evidence against the defendant could cause no harm
or prejudice.37 In this case, multiple police officers testified to having seen
Defendant throw a firearm, it was recovered, and Defendant admitted to having
possessed it. In consideration of the strength of the evidence against Defendant, no
harm or prejudice has been shown by Defendant, nor was Trial Counsel ineffective
due to Defendant’s possible attire before the jury.
MOTION TO WITHDRAW

Counsel submits that after a thorough analysis of the record, he has
determined that the claims asserted by Defendant lack merit and cannot be ethically
advocated Counsel also sought out any potentially meritorious grounds for relief
but came to the conclusion that nothing further would assist Defendant with
postconviction relief. Counsel provided Defendant with an opportunity to
supplement the record, but Defendant elected not to file anything further. Despite
this, Counsel’s brief addresses each of the arguments presented by Defendant
throughout his multiple pro se filings, as well as raises (and dismisses) an additional

potential claim. I am satisfied that Counsel has made a conscientious examination

 

37 Masarone v. State, 134 A.3d 761, 762-763 (Del. 2016).

11

of the record and the law for arguable claims.38 As such, the Motion to Withdraw

should be granted

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

should be summarily dismissed and the Motion to Withdraw should be granted
IT IS SO RECOMMENDED.

/`@

ommissioner Katharine L Mayer

oc: Prothonotary

cc: Christopher S. Koyste, Esquire
Brian J. Robertson, Esquire
Ronald Davis

 

38 See Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court Oprpeals Of
WiSCOnsin, 486 U.S. 429, 442 (1988); Anders v. Call'fOFl’ll`cl, 386 U.S. 738, 744
(1967)

12

