            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                          )
                                            )
                      Plaintiff,            )
                                            )
                                            )
       v.                                   )      Cr. ID. No. 1107009697
                                            )
                                            )
MICHAEL A. BROWN,                           )
                                            )
                      Defendant.            )


                               Decided: December 8, 2014

        COMMISSIONER’S REPORT AND RECOMMENDATION THAT

        DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                      SHOULD BE DENIED.
                            AND
  RULE 61 COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED


Andrew J. Vella, Esquire, Deputy Attorney General, 820 N. French St. 7th Floor,
Department of Justice, Wilmington, Delaware, 19801, Attorney for the State.

Donald R. Roberts, Esquire, 900 Kirkwood Highway, Elsmere, Delaware 19805,
Attorney for Defendant.




MANNING, Commissioner
           This 8th day of December, 2014, upon consideration of Defendant’s Motion for

Postconviction Relief, the Court finds the following:

                                                    FACTS

           According to the Affidavit of Probable Cause, on July 11, 2011, at sometime

shortly prior to 6:00 a.m., Michael A. Brown (“Defendant”) violently kicked in the front

door of 311 W 2nd Street and proceeded to an upstairs apartment. Once there, Defendant

confronted the various occupants, who were sleeping, demanded money and “the rest of

my stuff.” Defendant assaulted the occupants with a hammer numerous times, including

repeated blows to the head, before fleeing. When police arrived they noted that there was

“blood throughout the entire apartment.” Defendant was developed by police as a

suspected after being positively identified by one of the victims who had known him for

over 6 years. Defendant was arrested later that same day.

                                       PROCEDURAL HISTORY

           Defendant was indicted on September 26, 2011, for three counts of Attempted

Murder First Degree, Attempted Robbery First Degree, four counts of Possession of a

Deadly Weapon During the Commission of a Felony and Burglary Second Degree.

Defendant was represented by a lawyer (“Trial Counsel”) and on May 15, 2012, the day

his case was scheduled for trial, Defendant entered a guilty plea to two counts of Assault

First Degree (lesser included offenses) and one count of Possession of a Deadly Weapon

During the Commission of a Felony. 1 A Pre-Sentence Investigation was ordered. Prior

to sentencing, Trial Counsel filed a motion to withdrawn the guilty plea and to

simultaneously withdraw from representing Defendant. On July 24, 2012, the Court held

a hearing regarding the motions. At that hearing, Defendant’s complaints centered on his
1
    The first trial date of March 27, 2012, was rescheduled at Trial Counsel’s request for personal reasons.


                                                        1
dissatisfaction with Trial Counsel and also that the SENTAC guidelines noted on the

Truth In Sentencing Guilty Plea Form (“TIS”) he completed when he entered the guilty

plea, were incorrect. After the hearing, the Court granted Trial Counsel’s motion to

withdraw and stayed Defendant’s motion to withdraw his guilty plea.                               The Court

informed Defendant that he could retain new counsel to represent him and then possibly

re-file an amended motion, but otherwise, his motion was denied and he would be

sentenced pro se, on September 28, 2012. 2

           Defendant filed a pro se Motion for Postconviction Relief (“Motion”) on October

9, 2013, pursuant to Superior Court Rule 61.3                      The Court subsequently appointed

Defendant counsel (“Rule 61 Counsel”) for his pro se Rule 61 Motion. On May 9, 2014,

Rule 61 Counsel filed a Non-Merit Brief and Motion to Withdraw as Counsel under Rule

61(e)(2). Trial Counsel filed an Affidavit in response to Defendant’s Motion on June 18,

2014. The State filed a Response on August 2, 2014. As of this date, Defendant has not

filed a Reply.




2
    Defendant was sentenced, in total, to 17 years at Level 5 followed by various level of probation.
3
    Defendant did not appeal his conviction to the Delaware Supreme Court.


                                                        2
                              DEFENDANT’S RULE 61 MOTION

         Defendant’s Motion raises three grounds for relief:

    (1) Denial of Withdrawl [sic] of a defective plea agreement, and or a sentence
        imposed in an illegal manner. The sole reason that the courts own discretion,
        power is abuse of discretion and error of the law,

    (2) Denial of Due Process clause, that Defense is reasonable to have compulsory
        Process in due time,

    (3) Denial of the right to Counsel, and the Courts to appoint Counsel. 4

         All of Defendant’s arguments are either procedurally barred or without merit. 5

Each will be address below.


                                        LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below

an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 6 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. 7




4
  Each argument is directly quoted from Defendant’s Motion.
5
  Defendant’s Motion is evaluated under Rule 61 as it existed on the date the Motion was originally filed.
6
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
7
  Id.


                                                     3
         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. 8

         Mere allegations of ineffectiveness will not suffice; instead, a defendant must

make and substantiate concrete allegations of actual prejudice. 9 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 judgment. 10

         Although not insurmountable, the Strickland standard is highly demanding and

leads to a strong presumption that defense counsel’s conduct fell within a wide range of

reasonable professional assistance. 11           Moreover, there is a strong presumption that

defense counsel’s conduct constituted sound trial strategy. 12

         In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from the defense counsel’s perspective at the

time decisions were being made. 13 It is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. 14 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. 15




8
  Id. at 697.
9
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).
10
   Strickland, 466 U.S.at 691.
11
   Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct. 31,
2008).
12
   Strickland at 466 U.S. 688-689.
13
   Id.
14
   Id
15
   Id


                                                     4
        The United States Supreme Court recognized that there are countless ways to

provide effective assistance in any given case. The United States Supreme Court

cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing

court, trial counsel observed the relevant proceedings, knew of materials outside the

record, and interacted with his client, opposing counsel, and the judge. 16

        Even the best criminal defense attorneys would not defend a particular client in

the same way. Consequently, defense counsel must be given wide latitude in making

tactical decisions. 17 Counsel’s representation must be judged by the most deferential of

standards. There is a strong presumption that defense counsel’s conduct constituted

sound trial strategy. 18

                                      PROCEDURAL BARS

        Defendant’s claims are all subject to Superior Court Rule 61(i)(3). 19 Defendant

could have, but did not, raise any of the claims presented in his Motion to the Delaware

Supreme Court. However, since he did not, all of his claims are procedurally barred by

Rule 61(i)(3). Additionally, Defendant has not established any cause for his procedural

default under the Rule. Notwithstanding this procedural bar, Defendant’s claims are

without merit as discussed below.

                                           GROUND ONE

        Defendant’s first claim is that the Court abused its discretion when it denied his

motion to withdraw his guilty plea. Defendant argues that due to an error in the TIS form


16
   Harrington v. Richter, 131 S.Ct. 770, 787- 88 (2011).
17
   Id
18
   Strickland, 466 U.S. at 689; Harrington v. Richter, 131 S.Ct. 770 (2011).
19
   Superior Court Rule 61(i)(3): Procedural Default. Any ground for relief that was not asserted in the
proceedings leading to the judgment of conviction, as required by the rules of this 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 right.


                                                    5
the Court should not have accepted his guilty plea. More specifically, the TIS form

incorrectly stated that the presumptive sentence for each of the three charges was 2 – 5

years of incarceration. The correct TIS guideline for the “lead” charge of Assault First

Degree is 2 – 10 years of incarceration and 2 – 5 years of incarceration for each for the

remaining charges. 20 The TIS form did correctly list the statutory range of 2 – 25 years

of incarceration as to each count, for a total of 6 – 75 years.

         At the hearing on July 24, 2012, the transcript reveals that the Court went to great

lengths to explain to Defendant that the TIS guidelines were just that, merely guidelines

to assist the Court and that the Court did not have to follow them, unlike the statutory

penalties. While Defendant was, unfortunately, given incorrect information regarding the

TSI guidelines, it is clear from the record that the error did not prejudice him. 21

Defendant still received the benefit of a plea offer to substantially reduced charges. In

the end, Defendant’s actual period of incarceration was only two years above the

incorrect TIS guidelines of 15 years, but still three years under the high-end of the

correct TIS guidelines calling for up to 20 years of incarceration. While it is at least

arguable under the first prong of Strickland that Trial Counsel was deficient in the

advice given to Defendant concerning the TIS guidelines, it is clear that in the end, such

deficient performance did not prejudiced Defendant.




20
   Per SENTAC Statement of Policy #7: “When sentencing on multiple charges, prior criminal history
should be considered only in determining the guideline for the ‘lead’ or most serious offense. Sentences for
other current charges shall be calculated based on zero criminal history.”
21
   A mistake on a TIS form will not negate an otherwise valid guilty plea. See State v. Benson, 2009 WL
406795 at *2; State v. Benson, 2007 WL 625366, *1 (Del. Super. Jan. 3, 2007).


                                                     6
                                    GROUND TWO

        Defendant argues that “he was under duress to take the plea because of his

attorney’s abuse of lawyer roles and conduct not taken an interest in the defendant’s

case.” A review of Defendant’s Motion and Trial Counsel’s Affidavit reveals that the

case proceeded through the normal discovery and case review process. At the final case

review on March 19, 2012, the State offered Defendant a plea to the reduced charges of

Assault First Degree (two counts) and Possession of a Deadly Weapon During the

Commission of a Felony. At that time, Defendant rejected the plea and the case was set

for trial. According to Defendant’s Motion, Trial Counsel visited him two days prior to

the second trial date and urged him to accept the State’s Plea offer, which he ultimately

did, on May 15, 2012. Defendant now appears unhappy with this decision, despite the

relatively light sentence he ultimately received for such a brutal crime. Defendant states

in his Motion that “his sole intention was to go to trial, but he was he [sic] Def counsel

who desired to resolve the matter by plea agreement.”

       Defendant makes no specific or concrete allegation as to the method or manner

Trial Counsel used to force him to accept the plea agreement. Rather, it appears to the

Court, that once discovery was complete and all the evidence known, Trial Counsel, in

his professional judgment, advised Defendant that it was in his best interest to accept the

plea. It is the job of all defense counsel to advise their clients as to what they think the

best course of conduct is. Often, however, this is not always what a client may want to

hear, but a lawyer who blindly follows the wishes of his client, without first providing a

reality-check based on the evidence and professional experience, is doing the client a




                                             7
great disservice. 22      Perhaps the conversation between Defendant and Trial Counsel

became heated, but in the end, the transcript of the guilty plea hearing reveals that

Defendant signed the plea agreement of his own free will, knowingly, voluntarily and

intelligently. In the absence of evidence otherwise, Defendant is bound by his answers

on the guilty plea form and his answers to the Court during the colloquy. 23 Therefore,

Defendant’s argument is conclusory and without merit.



                                              GROUND THREE

         Defendant’s final claim is couched as a “[d]enial of the right to Counsel, and the

Courts to appoint Counsel.” Defendant’s argument is, in essence, that the Superior Court

violated his 6th Amendment Right to Counsel when it allowed Trial Counsel to withdraw

and did not appoint him new counsel. 24 Because Defendant did not raise this issue

previously, the claim is procedurally barred under Rule 61(i)(3). Even if it was not, the

claim is without merit.

         The transcript of the hearing on July 24, 2012, reveals that Defendant wished to

withdraw his guilty plea and obtain new defense counsel. Apparently, Defendant had lost

confidence in Trial Counsel due to the recent talk about taking a plea and wanted to

represent himself, taking the case to trial. The Court held a lengthy conversation with

Defendant ensuring that he understood he would not be appointed new defense counsel

and that he would have to represent himself. 25 Nevertheless, Defendant persisted in his



22
   In weighing the odds at trial, Trial Counsel undoubtedly placed considerable emphasis on the fact that the
main eyewitness had personally known Defendant for over six years and knew of his father.
23
   See Somerville v. State, 703 A.2d 629, 632 (Del. 1997) (citations omitted).
24
   Defendant’s argument is being made to the wrong court. The best venue for raising this argument was
the Delaware Supreme Court on a direct appeal; however, that window closed long ago.
25
   Any alleged defect in the right to counsel waiver colloquy is not before this Court.


                                                     8
request. Ultimately, the Court denied his motion to withdraw the guilty plea and granted

his request to proceed pro se.

       Even if the Court had appointed Defendant new trial counsel, there is no basis in

the record to conclude that the outcome of the case would have been any different. In

fact, had the Court allowed Defendant to withdraw the guilty plea and appointed new

trial counsel, the evidence in the record available to the Court indicates that in all

likelihood, the outcome would have been far worse for Defendant. Defendant’s final

claim is also without merit.

       For all of the foregoing reasons, Defendant’s Motion should be DENIED and

Rule 61 Counsel’s Motion to Withdraw should be GRANTED.

       IT IS SO RECOMMENDED.



                                                    /s/ Bradley V. Manning
                                                    BRADLEY V. MANNING,
                                                    Commissioner

oc:    Prothonotary
cc:    Defendant




                                           9
