IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) I.D. No. 1704012399
) In and for Kent County
Vv. )
) RK17-06-0304-01 Robbery 1° (F)
JUDEAU BROWN, ) RK17-06-0307-01 PFDCF (F)
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Stephen E. Smith, Esquire, Deputy Attorney General, Department of Justice, for the
State of Delaware.

Judeau Brown, Pro se.

FREUD, Commissioner
October 3, 2019

The defendant, Judeau Brown (“Brown”), pled guilty on May 7, 2018 on the
day his matter was set for trial to one count of Possession of a Firearm During the
Commission of a Felony (““PFDCF”), 11 Del. C. § 1447A and one count of Robbery
in the First Degree, 11 Del. C. § 832. He also faced one additional count of Robbery
in the First Degree, one count of Attempted Robbery in the First Degree, one count
of Assault in the First Degree, one count of Home Invasion and one count of

Conspiracy in the Second Degree which were nolle prossed by the State in exchange
State v. Brown
I.D. No. 1704012399
October 3, 2019

for Brown’s plea. As part of the plea deal the State and the defense agreed to
recommend a sentence of twenty-eight years incarceration, suspended after serving
seven years, six of which were minimum mandatory, followed by probation. The
Court agreed with the sentence recommendation and sentenced Brown accordingly.
Had Brown gone to trial and been found guilty as charged he faced substantial time
in prison. Brown did not appeal his conviction or sentence to the State Supreme
Court. Instead, Brown filed a Motion for Reduction of Sentence, pro se, on August
2, 2018, which this Court denied on August 20, 2018 .' Next Brown filed the pending
Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 and
an accompanying Memorandum of Law on April 15, 2019, in which he alleges, in
part, ineffective assistance of counsel. Brown also requested the appointment of
counsel which the Court denied on April 25, 2019. * On May 6, 2019 Brown filed a
Motion for an Evidentiary Hearing. A decision on which was deferred until after
briefing was completed. For the reasons set forth below I find Brown’s motion

meritless and consequently deny his Motion for Evidentiary Hearing.
FACTS

The charges in this case stem from an April 17, 2017 home invasion and
robbery. Brown and his co-defendant Quadaire N. Sadler (“Sadler”) entered victim
Matthew Newman’s (“Newman”) apartment on the premise they were there to

purchase illegal drugs. Once in the home, Brown and Sadler began to pistol whip

 

' State v. Brown, Del. Super., ID No. 1704012399, Witham, R. J. (Aug. 20, 2018)(ORDER).
* State v. Brown, Del. Super., ID No. 1704012399, Witham, R.J., (April 25, 2019)(ORDER).

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I.D. No. 1704012399
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Newman with their handguns and stole his watch and marijuana.
girlfriend, victim Simone Danzey (“Danzey”) heard the commotion and a black male
she later identified as Brown entered the bedroom with a hand gun and demanded
money. Danzey fled from the residence through a window. Eventually Newman,
Brown and Sadler exchanged gunfire. When the police arrived following a complaint
concerning gunfire they found both Newman and Sadler with gunshot wounds.
Brown was driven to Christiana Hospital with gunshot wounds by co-defendant Doh
W. Doe (“Doe”) who had driven Brown and Sadler to the robbery scene. The police

apprehended Brown once he was released from the hospital. Brown was identified

by Danzey and marijuana and blood were located in the getaway car.

BROWN’S CONTENTIONS

In Brown’s motion, he raises the following grounds for relief:

Ground one:

Ground two:

Ground three:

Ineffectiveness of Counsel.

1. Counsel revealed confidential information
to the prosecutor about the defendant’s
testimony during trial.

2. Failed to interview witnesses.

3. Failed to file motion for reduction of
sentence.

Unfulfilled Plea Agreement.

1. The state never provided protection of
defendant’s residence during the defendant’s

cooperation investigation.

2. The state failed to house defendant at SCI.

Corruption and tampering with evidence.
The infamous firearm examiner, Carl Rone

3

Newman’s
State v. Brown
I.D. No. 1704012399
October 3, 2019

plead guilty to falsifying work records on
October 24, 2018.
DISCUSSION
Under Delaware law, the Court must first determine whether Brown 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.* Brown’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 Brown’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

 

* Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
* Super. Ct. Crim. R. 61(4)(1).
> Super. Ct. Crim. R. 61(4)(3).

° Super. Ct. Crim. R. 61(4)(5).
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is actually innocent in fact of the acts underlying the charges of which he was
convicted’ or that he pleads with particularity a claim that a new rule 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.®
Brown’s motion pleads neither requirement of Rule 61(d)(2).

None of Brown’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. Only Brown’s first claim is based on ineffective assistance of
counsel; therefore, he has alleged cause for his failure to have raised it earlier. Brown
has failed to give cause for or prejudice for not raising his remaining claims sooner.
They are therefore procedurally barred.

At this point, Rule 61(i)(3) does not bar relief as to Brown’s ineffective
assistance of counsel claims 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, Brown 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

 

’ Super. Ct. Crim. R. 61(d)(2)(i).
* Super. Ct. Crim. R. 61(d)(2)(ii).

° 466 U.S. 668 (1984).
State v. Brown
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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 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 Brown 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

 

'° Td. at 687.

'' 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 y. Morrison, 477 U.S.
365, 383 (1986)).

'S’ Strickland, 466 U.S. at 689.
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record, more credible that Brown’s self-serving claims that his counsel’s
representation was ineffective. Brown’s counsel clearly denies the allegations.

Brown was facing the possibility of substantial mandatory time in prison had
he been convicted as charged. The sentence and plea were very reasonable under all
the circumstances, especially in light of the overwhelming evidence against him.
Prior to the entry of the plea, Brown and his attorney discussed the case. The plea
bargain was clearly advantageous to Brown. Counsel’s representation was certainly
well within the range required by Strickland. Additionally, when Brown 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." Consequently, Brown has failed to establish that his counsel’s
representation was ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Brown was
somehow deficient, Brown 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, Brown 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 Brown’s grounds for relief are

 

'® 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)).
State v. Brown
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meritless.

To the extent that Brown 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
guilty-plea hearing, the Court asked Brown whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Brown 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 Brown if he had discussed the guilty plea
and its consequences fully with his attorney. The Court asked Brown if he was
entering into the plea as he was guilty of the charges. The Court also asked Brown
if he was satisfied with this counsel’s representation. Brown answered each of these
questions affirmatively.”

Furthermore, prior to entering his guilty plea, Brown signed a Guilty Plea Form
and Plea Agreement in his own handwriting. Brown’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

 

'® Godinez v. Moran, 509 U.S. 389, 400 (1993).
State v. Brown, Del. Super., ID No. 1704012399 (May 7, 2018), Tr. at 5-12.

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

Turning briefly to Brown’ two other claims, in Ground two he claims that the
State failed to abide by the terms of the plea agreement to protect his residence and
by failing to house him at Sussex Correctional Institution (“SCI”) for the duration of
his sentence. Brown’s claims are factually incorrect. First, at the time he entered his
plea, the State had the chief investigating officer contact Newark, Delaware Police
Department to inform them of the issues concerning Brown’s residence. That
condition in the sentencing order was fulfilled that day. With regard to the failure to
house Brown at SCI, the State took no action to prevent him from being housed at
SCI or to affect Brown’s housing in any way. The sentencing judge also noted that
“The Court’s power, Mr. Brown, is only to make the recommendation and direction
to DOC, but where you are actually placed is actually subject to DOC’s
determination, but I will direct the Department of Corrections to house you at SCI,”

In Ground three Brown argues that he should be able to withdraw his plea
because of the involvement of Carl Rone in his case. That argument fails because as
noted by the State, it did not plan on calling Mr. Rone in this case, as his expert report

was neither inculpatory nor exculpatory. This ground for relief is meritless and

 

2° Sommerville 703 A.2d at 632.
21 Brown, Del. Super., ID No. 1704012399 (May 7, 2018), Tr. at 16.

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procedurally barred.
CONCLUSION

I find that Brown’s counsel represented him in a competent and effective
manner and that Brown has failed to demonstrate any prejudice stemming from the
representation. I also find that Brown’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Brown’s motion for postconviction
relief as procedurally barred and completely meritless pursuant to Superior Court
Criminal Rule 61(i)(3) and (4). Further I deny Brown’s Motion for Evidentiary

hearing as his motion is meritless.

/s/_ Andrea M. Freud
Commissioner

AMEF/dsc
oc: Prothonotary

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