IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1504005028

THOMAS RIVERS,

<
\/\/\_/\/\/\/\/\/V\./\/

Defendant.

Submitted: October 11, 2018
Decided: December 4, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION

RELIEF SHOULD BE DENIED AND DEFENDANT"S MOTION FOR
EVIDENTIARY HEARING SHOULD BE DENIED

Daniel B. McBride, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State of Delaware.

Thomas Rivers, pro se

MAYER, Cornrnissioner

This 4"‘ day of December, 2018, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

BACKGROUND, FACTS AND PROCEDURAL HISTORY

On July 12, 2016, after a jury was selected and sworn, but before trial
commenced, Thomas Rivers (“Defendant”) agreed to plead guilty to Attempted
Murder First Degree and Possession of a Firearm During the Commission of a
Felony (“PFDCF”).

The charges stem from an incident that occurred on April 3, 2015, when
Shurki Brown was shot seven times at close range while walking to his car. Elva
Stewart (“Stewart”), the victim’s aunt, was nearby at the time of the shooting The
victim survived and identified Defendant as the shooter. In addition, Dawan Harris
(“Harris”) was in the vicinity at the time of the shooting and provided a detailed
description of what the shooter was wearing, what he looked like, and his nickname
(that matched Defendant’s known nickname). Harris also identified Defendant from
a photographic lineup. The State intended to present evidence from surveillance
cameras capturing Defendant near the scene of the shooting when it occurred and
that he was wearing the exact clothing described by the witnesses.

Through the Plea Agreement, the State agreed to cap its sentencing

recommendation to 23 years at Level 5. At that time, Defendant also executed a

Truth-in-Sentencing Guilty Plea Form and acknowledged that the statutory penalty
for the Attempted Murder charge was 15 years at Level 5 to life imprisonment, with
a minimum mandatory of 15 years at Level 5. The Court ordered a pre-sentence
investigation and on July 21, 2017, Defendant was sentenced on the Attempted
Murder charge to 25 years at Level 5, suspended after 15 years for decreasing levels
of probation.l

On September 11, 2017, Defendant moved for a modification or reduction of
his sentence. The Court issued an Order denying the motion because (a) the sentence
was imposed pursuant to a plea agreement; (b) the Court addressed Defendant
personally in open court and determined he understood the charge and the maximum
penalty; (c) Defendant acknowledged in open court that he understood the range of
possible penalties; (d) the Court has no authority to reduce or suspend the mandatory
portion of any sentence; and (e) no additional information was provided to warrant
a reduction or modification of sentence.2

On May 10, 2018, Defendant filed a Motion for Postconviction Relief.3 The

Motion presented three claims of ineffective assistance of counsel. The record was

 

l Prior to the Sentencing Hearing, the State agreed to nolle prosequi and dismiss

the PFDCF charge.
2 See D.I. # 49.

3 D.I. # 50.

enlarged, Defendant was given an opportunity to amend the Motion,4 trial counsel
submitted an Affidavit (hereinafter “Trial Counsel”) responding to the allegations,
and the State filed a response.5 After having reviewed the various papers submitted
to the Court, l do not believe an evidentiary hearing would further assist with
resolution of this matter.

Defendant presents a singular basis for relief: that trial counsel was ineffective
in advising him to accept the plea offer despite the failure to interview potential
witnesses or conduct an independent investigation that would have resulted in a more
favorable outcome.6 Defendant’s Memorandum of Law argues that Stewart would
have testified that the person who shot her nephew didn’t have a beard or tattoos
(and Defendant did) and Trial Counsel’s failure to advise him of this caused
Defendant prejudice because he plead guilty rather than going to trial with this

evidence

 

4 On July 5, 2018, Defendant filed an Amended Motion for Postconviction Relief
[D.I. # 57]; on August 9, 2018, Defendant filed a Memorandum of Law and an
Affidavit in support of his Motion [D.I. # 60]. Defendant was afforded an
opportunity to file a reply to the State’s Response but did not do so.

5 Trial Counsel’s Affidavit was filed on September 10, 2018 [D.I. # 61], and the
State filed a Response on October 11, 2018 [D.I. # 62].

6 See Amended Motion at D.I. # 57. Defendant’s Motion to Amend indicates he
wished to withdraw his pending ineffective assistance of counsel claims submitted
by way of his previous filing and to present only the amended claim under “Ground
One” of his updated Rule 61 motion.

ln addition, Defendant argues there was a “star witness” that wrote an affidavit
saying he lied to the police and he never saw Defendant shoot the victim. In support
of the above claims, Defendant submitted an affidavit from Dawan Harris.7 Mr.
Harris claims he falsely identified Defendant as the shooter, and only did so because
he was “drunk and high,” pressured by the police and “on the run” for criminal
matters.

Trial Counsel’s Affidavit8 attests that he reviewed witness statements with
Defendant prior to trial, and in particular the possibility of impeaching Stewart’s
recorded statement/testimony Defendant was made aware of the weaknesses in the
witness’s statements Trial Counsel admits that he did not interview the victim.
However, Trial Counsel states the victim was uncooperative and could not be found
by the State, and since he was necessary for the State to prove its case, it was not in
Defendant’s best interest to assist with locating him. The victim was eventually
arrested, incarcerated and agreed to cooperate with the State to identify Defendant
as the shooter. With respect to the Harris affidavit provided by Defendant, Trial
Counsel explains that prior to trial, he sent a private investigator to visit Harris while

incarcerated Trial Counsel discussed that interview with Defendant and

 

7 lt appears that the affidavit was signed on April 5, 2016 (three months before
Defendant plead guilty), but the notary signature and seal are illegible.

8 Although Defendant withdrew all but one claim, Trial Counsel addressed all of
the allegations.

subpoenaed the private investigator to testify at trial in the event Harris changed his
story from what was told during the interview.9

Trial Counsel further attests that he discussed the strengths and weaknesses
of the State’s case with Defendant as well as mitigating factors relevant to
sentencing Finally, Trial Counsel believes he filed all motions legally relevant to
Defendant’s case,'° explained the law to him, and the ramifications of going forward
with trial and/or accepting a plea.

The State argues that Defendant suffered no prejudice because as a result of
the plea, the State agreed not to seek sentencing under the habitual offender statute,
and if he had gone to trial and Defendant were convicted, Defendant could have been
sentenced to life in prison. Defendant knew he faced the possibility of 15 years to
life imprisonment, that the State would recommend 23 years at Level 5, and
Defendant essentially received the minimum mandatory. The State further supports
Trial Counsel’s Affidavit that no further investigation could have been undertaken

to improve Defendant’s possible outcome at trial.

 

9 Defendant’s Memorandum of Law refers to his discussion with Trial Counsel

about potential defenses for trial and states “prior to that the defendant had received
a notarized affidavit from the State’s star witness explaining that he lied. . .”
Therefore, it is not disputed that Defendant was aware of the affidavit from Harris
and Defendant does not appear to be making an argument that new evidence was
discovered.

10 Collectively, Defendant’s counsel filed a Motion to Dismiss, Motion to Compel,
Motion for Relief from Prejudicial Joinder and a Motion to Exclude Evidence.

6

LEGAL ANALYSIS

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the motion.“ This is Defendant’s first
motion for postconviction relief and it was timely filed pursuant to Superior Court
Criminal Rule 61.‘2

Defendant, with full knowledge of the witness statements, elected to plead
guilty and forgo confronting the witnesses at trial. A defendant’s statements to the
Court during the guilty plea colloquy are presumed to be truthful and Defendant is
bound by his statements to the Court.13 Through the Plea Agreement and Truth-in-
Sentencing Guilty Plea Form, Defendant agreed to waive the right to a trial by jury,
to question witnesses, to present evidence in his defense, to testify in his defense,
and to compel the State to prove each of the charges against him. The Court’s
decision on Defendant’s sentencing motion acknowledged that the plea was

knowing, intelligent and voluntary. Therefore, Defendant waived the right to contest

 

ll Younger v. State, 580 A.2d 552, 554 (Del. 1990).
'2 See Super. Ct. Crim. R. 61(i)(1) (motion must be filed within one year of when
conviction becomes final).

13 Windsor v. State, 2015 WL 5679751, at *3 (Del., Sept. 25, 2015) (holding that
absent clear and convincing evidence to the contrary, defendant is bound by his
sworn statements). See also, State v. Brown, 2010 WL 8250799, at *3 (Del. Super.,
Apr. 14, 2010), citing, Somervl`lle v. State, 703 A.2d 629 (Del. 1997).

the witness statements and/or State’s ability to prove the charges against him when
he accepted the plea,

Despite this, the Motion should also be denied because it fails to meet either
prong of the Strickland14 standard. Defendant’s claims of ineffective assistance of
counsel are premised on the basis that had Trial Counsel investigated the witness
statements further, Defendant would have proceeded to trial and the outcome would
have been different. 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 the deficiencies in counsel’s representation caused
the defendant actual prejudice.15 When a defendant has plead guilty, he must show
that counsel’s actions were so prejudicial that there is a reasonable probability that,
but for counsel’s errors, the defendant would not have plead guilty and would have
insisted on going to trial.16 Defendant must also overcome a strong presumption that

counsel’s conduct Was reasonably professional under the circumstances.17 Mere

 

14 Strickland v. Washington, 466 U.S. 668 (1984).

15 Stricklana' v. Washz'ngton, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

16 State v. Hess, 2014 WL 6677714, at * 6 (Del. Super., Nov. 20, 2014) (citations
omitted).

17 State v. Wright, 653 A.2d 288, 293-94 (citations omitted).

allegations of ineffectiveness will not suffice, rather, a defendant must make and
substantiate concrete allegations of actual prejudice.18 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.19

According to Trial Counsel’s Affidavit, he provided Defendant with the
witness statements Trial Counsel did not actively seek the victim as it would not
benefit Defendant for him to be found. Trial Counsel also made Defendant aware
of Stewart’s statement and his strategy for addressing her testimony at trial. Finally,
Defendant was aware of Harris’s affidavit, his retraction of his previous statements,
and Trial Counsel was prepared to address the witness at trial and present a
secondary witness in the event Harris attempted to change his story (again).
Defendant does not provide any insight as to what, if anything, Trial Counsel should
have done differently. Trial Counsel’s investigation and preparation for trial appears
to have been thorough and objectively reasonable under the circumstances
Defendant has failed to demonstrate error by counsel. Moreover, Defendant
received a significant benefit from the plea, including dismissal of certain charges,

evading an habitual offender determination, and the minimum mandatory for the one

 

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

19 State v. Ml`ller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).

charge that remained As such, 1 find that Defendant has not established prejudice
as a result of Trial Counsel’s actions, or alleged inaction.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED and the Motion for an Evidentiary Hearing should be DENIED.

IT Is so RECoMMENDED. WM

Commissionefk*athafi¥e)l:l\/layer""“--~»

oc: Prothonotary
Daniel B. McBride, Esquire
Thomas Rivers, pro se

10

