       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                                 )
                                                   )
       v.                                          )             ID No. 1707010054
                                                   )
ANTONIO RUSSELL,                                   )
                                                   )
       Defendant.                                  )

                             Date Submitted:       March 9, 2020
                             Date Decided:         June 25, 2020

                                          ORDER

       Upon consideration of Defendant’s Pro Se Motion for Postconviction Relief1

and Motion for Appointment of Counsel,2 Superior Court Criminal Rule 61,

statutory and decisional law, and the record in this case, IT APPEARS THAT:

       1.     On August 21, 2018, Defendant pled guilty to Manslaughter,

Possession of a Firearm During the Commission of a Felony (“PFDCF”), and

Possession of a Firearm By a Person Prohibited (“PFBPP”). 3 By Order dated

January 25, 2019, effective July 25, 2017, Defendant was sentenced to 15 years at

Level V followed by decreasing levels of supervision and probation.4


1
  D.I. 57.
2
  D.I. 56.
3
  D.I. 35.
4
  D.I. 51. Defendant was sentenced as follows: for Manslaughter, IN17-07-0918-W, 25 years at
Level V, suspended after 12 years, for 13 years at Level IV, suspended after 6 months, for 18
months at Level III; for PFDCF, IN17-07-0920-W, 3 years at Level V; and for PFBPP, IN17-07-
0919-W, 8 years at Level V, suspended for 1 year at Level III. The first 5 years at Level V are
mandatory for charges Manslaughter and PFBPP pursuant to 11 Del. C. §§ 632, 1447A. Probation
is concurrent.
       2.     On December 6, 2019, Defendant filed this timely Motion for

Postconviction Relief and Motion for Appointment of Counsel pursuant to Superior

Court Criminal Rule 61.5

       3.     Defendant challenges the Sentencing Order imposed, claiming the

Court violated his constitutional rights because the Court improperly considered his

prior juvenile adjudication and incorrectly applied the SENTAC guidelines.6 In

addition, Defendant claims he was denied the right to effective assistance of counsel

in that his plea was not knowing, intelligent, and voluntary. 7

       4.     Before addressing the merits of any claim for postconviction relief, the

Court must first determine whether any of the procedural bars under Rule 61 are

applicable.8 Under Rule 61(i), a Rule 61 Motion can be procedurally barred for time

limitations, successive motions, procedural defaults, and former adjudications.

       5.     Rule 61(i)(4) bars consideration of any ground for relief formerly

adjudicated in the case. Defendant filed a motion for correction of illegal sentence

pursuant to Rule 35(a), which the Court denied on April 20, 2020. 9 In the instant

Motion, Defendant echoes the argument raised in his motion for correction of illegal



5
  D.I. 57.
6
  D.I. 57. Defendant claims the Court violated his right to Due Process and that his sentence is
cruel and unusual punishment.
7
  Id.
8
  Dollard v. State, 2020 WL 2393353, at *1 (Del. May 11, 2020) (TABLE) (citing Younger v.
State, 580 A.2d 552, 554 (Del. 1990)).
9
  D.I. 69.
                                               2
sentence. In that motion, and again here, Defendant argues the Court violated his

constitutional rights by considering his prior juvenile adjudication as an aggravating

factor and deviating from the SENTAC guidelines.10                 The Court has already

considered and rejected this argument.11 Consequently, it is barred under Rule

61(i)(4).

        6.    The Court next considers Defendant’s ineffective assistance of counsel

claim. The standard used to evaluate claims of ineffective assistance of counsel is

the two-prong test set forth in Strickland v. Washington12 by the United States

Supreme Court, which has been adopted in Delaware. 13 To support a claim of

ineffective assistance of counsel after entry of a guilty plea, a defendant must show

that:

        (i) his counsel’s conduct fell below an objective standard of
        reasonableness; and (ii) there was a reasonable probability that, but for
        his counsel’s errors, he would not have pled guilty but would have
        insisted on going to trial. 14

Failure to prove either prong will render the claim insufficient. 15 “Conclusory and

unsupported claims of prejudice are insufficient to establish ineffective assistance; a

defendant must make and substantiate concrete claims of actual prejudice.”16


10
   D.I. 60.
11
   D.I. 69.
12
   466 U.S. 668 (2014).
13
   Albury v. State, 551 A.2d 53 (Del. 1988).
14
   Dollard, 2020 WL 2393353, at *2 (internal citations omitted).
15
   Strickland, 466 U.S. at 687.
16
   Sartin v. State, 103 A.3d 515 (Del. 2014).
                                               3
“Although not insurmountable, there is a strong presumption that counsel’s

representation was professionally reasonable.”17

       7.     Defendant contends that he received ineffective assistance of counsel

in connection with his guilty plea. 18 Specifically, Defendant argues that counsel did

not inform him of the SENTAC guidelines and the possibility of a sentence

enhancement “until the last minute after entering [sic] guilty plea.”19 Defendant

claims that if he had been informed of the possibility of a sentence enhancement, he

would not have accepted the plea. 20 Defendant’s former counsel filed an affidavit

in response to Defendant’s claim, which the Court has reviewed. 21

       8.     The Court imposed Defendant’s sentence pursuant to a plea agreement

between the State and Defendant. Pursuant to Superior Court Criminal Rule 11(c),

the Court addressed Defendant personally in open court prior to Defendant’s

sentencing. It is well-settled that in absence of clear and convincing evidence to the

contrary, a defendant is bound by the statements made during the plea colloquy and

his representations on the Truth-in-Sentencing Guilty Plea Form. 22                   When a




17
   Dollard, 2020 WL 2393353, at *2 (citing Albury v. State, 551 A.2d 53, 59 (Del. 1988)).
18
   D.I. 57.
19
   Id.
20
   Id.
21
   D.I. 66 (Affidavit of Response of Christina L. Ruggiero).
22
   Colburn v. State, 128 A.3d 1172, 2016 WL 5845778, at *2 (Del. 2016) (TABLE).
                                               4
defendant enters a guilty plea knowing and voluntarily, he waives any objection to

alleged errors and defects that occur before entry of the plea. 23

      9.     During Defendant’s plea colloquy, the Court determined that

Defendant understood the nature of the charges to which the plea was offered,

including the mandatory minimum and maximum penalties provided by law.

Defendant signed a Truth-in-Sentencing Guilty Plea Form which confirmed that

Defendant’s plea was voluntary, and not the result of force, threats, or promises apart

from the plea agreement, and Defendant was not promised what his sentence would

be.24 Defendant was informed that the TIS guidelines are voluntary and non-binding

and, because Defendant agreed to open sentencing, he was exposed to a maximum

of 58 years at Level V.25 In addition, Defendant acknowledged and confirmed that

he discussed his case fully with defense counsel and was satisfied with defense

counsel’s representation.26      After a thorough colloquy, the Court accepted

Defendant’s guilty plea as knowing, intelligent, and voluntary.

      10.    Defendant’s assertions regarding his plea are conclusory and refuted by

the record. Defendant represented to the Court that he understood he was facing the

maximum total exposure of 58 years at Level V. 27 Moreover, Defendant’s former



23
   Muldrow v. State, 146 A.3d 358, 2016 WL 4446610, at *2 (Del. 2016) (TABLE).
24
   D.I. 35 (TIS Sentencing Guilty Plea Form).
25
   See id.
26
   See id.
27
   Id.
                                            5
counsel informed Defendant prior to sentencing again that the TIS guidelines were

non-binding and Defendant was facing a total exposure of up to 58 years.28 There is

no evidence in the record former counsel’s actions “fell below an objective standard

of reasonableness.”29 Defendant has failed to satisfy the first prong of Strickland,

and therefore, his ineffective assistance of counsel claim fails.

       11.     Pursuant to Superior Court Criminal Rule 61(e)(2), the Court has

discretion to appoint counsel for a first timely postconviction motion in a guilty plea

case.30 The success of Defendant’s Motion for Appointment of Counsel rests on his

ability to set forth a substantial claim that he received ineffective assistance of

counsel relating to his guilty plea. For the reasons stated above, the Court finds that

Defendant fails to meet that burden, and there are no exceptional circumstances that

warrant appointment of counsel. 31


28
   Affidavit of Response of Christina L. Ruggiero.
29
   See D.I. 40, 66. In response to the State’s sentence recommendation, defense counsel urged the
Court to consider numerous mitigating factors, including victim involvement, age at the time of
the offense, no prior convictions, lack of parental support, stress of living in extreme poverty, and
drug abuse, when ordering Defendant’s sentence.
30
   Super. Ct. Crim. R. 61(e)(2) states:
        (2) The judge may appoint counsel for an indigent movant's first timely
        postconviction motion and request for appointment of counsel if the motion seeks
        to set aside a judgment of conviction that resulted from a plea of guilty or nolo
        contendere only if the judge determines that: (i) the conviction has been affirmed
        by final order upon direct appellate review or direct appellate review is unavailable;
        (ii) the motion sets forth a substantial claim that the movant received ineffective
        assistance of counsel in relation to the plea of guilty or nolo contendere; (iii)
        granting the motion would result in vacatur of the judgment of conviction for which
        the movant is in custody; and (iv) specific exceptional circumstances warrant the
        appointment of counsel.
31
   See id.
                                                 6
      NOW THEREFORE, Defendant’s Pro Se Motion for Postconviction Relief

and Motion for Appointment of Counsel are DENIED.


                                                  Jan R. Jurden
                                            Jan R. Jurden, President Judge




Original to Prothonotary

cc:   Antonio Russell (SBI# 00836045)
      Matthew B. Frawley, DAG
      Eugene J. Maurer, Esq.
      Christina L Ruggiero, Esq.




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