IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Respondent/Plaintiff, )
)
)
v ) Cr. ID. No. 1506018431
)
)
)
STEPHANIE M. DESOLA, )
)
Petitioner/Defendant. )

Submitted: November 21, 2016
Decided: January 4, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Joseph Grubb, Esquire, Deputy Attorney General, DelaWare Department of Justice,
820 N. French St. 7th Floor, Wilmington, DE, 19801. Attorney for the State.

Brian T.N. Jordan, Esquire, 704 North King Street, Suite 600, Wilmington, DE
19801. Trial Counsel.

Stephanie M. Desola, 85 Sunnybrook Dr., Elkton, MD, 21921-7857. Petitioner,
pro se.

MANNING, Commissioner:

This 3rd day of January, 2017, upon consideration of petitioner/defendant
Stephaine M. Desola’s motion for postconviction relief (hereinafter “Motion”), I
find and recommend the following:

Facts and Procedural I~Iistorv

On July 2, 2015, Desola was charged by information with one count of Theft
over $50,000 in violation of ll Del. C. § 841(0)(3)(a). The charge alleged that
Desola stole over $50,000 from her employer, Chesapeake Insurance Advisors
(“CIA”). Desola’s case was the result of an investigation by the FBI and the IRS.
Initially, Desola’s case was handled by the United States Attorney’s Office for the
District of Delaware. However, after negotiations by her attorney, Desola’s case
was transferred to the State of Delaware, Superior Court, for plea purposes

On July 8, 2015, after additional negotiations, Desola pleaded guilty to one
count of Theft over $50,000. Desola was sentenced immediately to five years at
Level Five, suspended for six months at Level Four, followed by one year at Level
Three probation. The Court’s sentence followed the joint recommendation made
by the State and Desola. On July 24, 2015, Desola sought, and was granted, a
sentence modification to remove the Level Four portion of her sentence because
she lived in Maryland and was thus not a candidate for home confinement
Desola is currently on Level Three probation. Desola did not appeal her

conviction to the Delaware Supreme Court. Desola filed a pro se motion for

postconviction relief on June 27, 2016. Desola’s Motion was assigned to the
undersigned commissioner on July 8, 2016. A briefing schedule was issued on
July 20, 2016. The State and Trial Counsel both filed responsive pleadings
thereafter. Desola filed her Response on November 2l, 2016.1
Collateral to the criminal case, CIA filed a civil complaint against Desola
and her husband in the Court of Chancery on August 7, 2014.2 In its civil suit, CIA
alleges, inter alia, that Desola committed Fraud, Breach of Agency and violated
her Duty of Loyalty to CIA in her role as office manager. The matter is currently
unresolved and pending trial before Vice Chancellor Laster. As of May 26, 2016,
Desola discharged her attorney, Brian T.N. Jordan, from representing her in the
Chancery Court case and is now proceeding there pro se. Mr. Jordan was also
counsel to Desola for the criminal case in Superior Court at all relevant times.
Desola’s claims for postconviction relief, quoted verbatim, are as follows:
Ground One: Suppression of favorable evidence. Victim
knowingly omitted and secreted information and evidence related to
the matter during the State/FBI investigation which would have
exonerated any wrongdoing on my behalf. Furthermore, the Victim is
continuing to seek relief for additional fees without acknowledging or

any admission to the contributions l actually made on behalf of the
Victim.3

 

‘ D.l. #24.

2 C.A. No.; 10018 vCL

3 Motion at p3.

Ground Two: False and Erroneous allegations. Victim
knowingly made false and erroneous claims in matter in order to
secret information Victim was aware of actions taken by myself
involving company finances. Proof of Victims knowledge is evident
in text messages exchanged as well as in person meetings with
Victims creditors. Victim agreed to pay back all contributions with
interest (as stated in text messages), information which was never
disclosed to the Attorney General’s Office, the State or the FBI. As a
result of the criminal matter, l have suffered additional losses, outside
of unaccounted $322,087.95 contributed to the Victims business
which was not considered in this case.4

Ground Three: Improper representation, ineffective assistance of
legal counsel. As a result of the erroneous Civil Litigation, the
fraudulent Criminal allegations by the Victim and subsequent
Criminal matter, I could not afford proper criminal counsel and was
unable to secure a criminal attorney for this matter. This caused me to
relying on the legal guidance of my civil counsel which was
inappropriate and ineffective. l was unaware that critical information
was not submitted into evidence with the courts, nor was it presented
to opposing counsel the courts at the time of the restitution hearing.5

Desola hirther explains that:

All of the above grounds were never raised in this case due to l) the
victim either denying and/or suppressing critical evidence; 2) the
Victim’s false claims which were not thoroughly investigated; 3)
details of the false and improper evidentiary information were not
provided to me or my attorney; 4) my attorney was not versed in
criminal law, does not have a strong understanding of plea agreements
and was therefore ineffective in managing and advising in this case.6

 

4 1a
5 ld.

6 Id.

Based upon my review of Desola’s Motion, l do not see the need for an
evidentiary hearing. The arguments presented by Desola in her Motion can be
fully addressed with the factual record created by the pleadings and other
information currently available in the Court’s file.

Legal Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strz`ckland test by showing that: (l) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.7 The first prong requires the defendant to
show by a preponderance of the evidence that defense counsel was not reasonably
competent, while the second prong requires the defendant to show that there is a
reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different.8

When a court examines a claim of ineffective assistance of counsel, it may
address either prong first; where one prong is not met, the claim may be rejected
without contemplating the other prong.9 Most germane to this case, mere

allegations of ineffectiveness will not suffice_a defendant must make and

 

7 wickland v. Washingron, 466 U.s. 668, 687-88, 694 (1984).
8 1a

9 1a at 697.

substantiate concrete allegations of actual prejudice.10 An error by defense counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of
conviction if the error had no effect on the judgmentll

In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be viewed from his or her perspective at the time
decisions were being made.12 A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting efforts of hindsight Second
guessing or “Monday morning quarterbacking” should be avoided. 13

The procedural requirements of Superior Court Criminal Rule 61 must be
addressed before considering the merits of any argument14 Desola’s Motion was
timely filed, is not repetitive, and none of the claims she raises were previously
adjudicated in any forum. Therefore, Desola’s Motion is not procedurally barred

under Rule 6l(i)(l), (2) or (4).

 

1° Y@unger v. Sm¢e, 580 A.2d 552, 556 (Del. 1990).

11 S¢rickland, 466 U.s.at 691.
12 Id.

13 161

14 See Younger, 580 A.2d at 554.

Aga_lys_is
“In order to prevail on a claim of ineffective assistance of counsel in
connection with a guilty plea, a defendant must show that, but for her counsel's
unprofessional errors, she would not have pleaded guilty, but would have insisted
on proceeding to trial.” 15 In this case, Desola can make no such showing.
Given the unambiguous information contained in the guilty plea paperwork,
l have no doubt that Desola’s plea was knowingly, intelligently and voluntarily
entered and that she knew the correct penalty range she faced at the time she
entered her guilty plea. When asked to answer “yes” or “no” on the Truth in
Sentencing Guilty Plea Form if Desola was “satisfied with [her] lawyer’s
representation [of her], and that [her] lawyer has fully advised [her] of [her]
rights?” Desola checked the “yes” box. In the absence of clear and convincing
evidence to the contrary, Desola is bound by her representations to the Court.16
Outside of Desola’s conclusory allegations, there is nothing in the record to
indicate that she was not properly represented or advised by her attorney before she
entered her guilty plea.
Desola’s first two grounds for relief can best be summarized as “the victim

is lying” and “I am a victim too.” If Desola felt so strongly about the matter, then

 

15 Mz`ller v. State, 840 A.2d 1229, 1232 (Del. 2004) (Citing Somer'vl'lle v. State, 703
A.2d 629, 632 (Del. 1997).

16 Somerville v. Szaze, 703 A.2d 629, 632 (Del. 1997).

she should have exercised her right to go to trial. Because Desola could have
raised both of these argument via a trial, but elected not to, both claims are
procedurally barred under Rule 6l(i)(3).17

It is very clear form her voluminous filings that Desola is unhappy with the
amount of restitution she was ordered to pay, and the civil case still pending
against her in the Court of Chancery. However, neither of these facts makes
anything her attorney did, or did not do, in connection with his representation of
her deficient under Strz`ckland as far as I can see.

In Ground Three, Desola argues that because her attorney did not normally
practice criminal law, his guidance was “inappropriate and ineffective.”
Additionally, Desola argues she was “unaware that critical evidence was not
[being] submitted into evidence with the court, nor Was it presented to opposing
counsel... .”18

That fact that Desola’s attorney did not normally practice criminal law does

3519

not trigger any “presumption of ineffectiveness My review of the facts in this

 

17 Rule 61(i)93)ProceduralDefault. -- Any ground for relief that was not asserted
in the proceedings leading to the judgment of conviction, as required by the rules
of the court, is thereafter barred, unless the movant shows (A) Cause for relief
from the procedural default and (B) Prejudice from the violation of the movant’s
rights

18 Motion at p3.
19 Uni¢ed states v. Cmm'c, 466 U.s. 648, 665 (1984).

case, including the large amount of documents included with Desola’s Response,20
reveals this case to have been a complex one of internal theft and fraud; however, I
do not see any missteps by Desola’s attomey_~the evidence that Desola committed
theft over $50,000 is compelling Finally, and fatal to her claim, Desola fails to
identify exactly what evidence her attorney failed to present to the court or
opposing counsel, that would have changed the outcome of this case. Desola’s
Response,21 which reads much like a complaint in a civil case, contains 37 pages of
argument as to why she should not have been held accountable for the Theft and
over 100 pages of various text messages and other financial documents These
documents are presented en masse and, unhelpfully, left for the Court to decipher.
Desola’s Motion is devoid of any concrete examples of how her attomey’s
representation of her was deficient, or how that deficient representation prejudiced
her. Desola has failed to show that, but for errors her attorney made, she otherwise
would not have pleaded guilty. The bottom line is that Desola was given the
opportunity to plead guilty to felony theft in state court with a recommendation for
probation_thereby avoided at least a two-year minimum/mandatory federal
sentence_and she agreed to it. However, Desola now regrets her decision and is

unhappy with her former attorney.

 

20 D.l. # 30.
211d.

M<lll
Desola’s claims are conclusory allegations unsupported by the record and all
fail to meet the standard for relief under Rule 61 and Strickland.
For the foregoing reasons, Desola’s Motion should be DENIED.
Additionally Desola’s Motion is so lacking in merit that it could be Denied and
Summarily Dismissed pursuant to Super Ct. Crim. Rule 6l(d)(5).

IT IS SO RECOMMENDED.

BRADLEY v. MANNTNG,
Commissioner

 

oc: Prothonotary
cc: Defendant via first class mail, counsel via e-mail

