IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
V. ) ID# 0802006217,
) 1710004763
ARION BAYNARD, )
)
Defendant. )

Date Submitted: September 26, 2019
Date Decided: December 5, 2019

ORDER

Upon consideration of Defendant’s Pro Se Motion for Postconviction Relief!
and Motion for Appointment of Counsel;? Superior Court Criminal Rule 61; the
facts, arguments, and legal authorities set forth in Defendant’s Motion; statutory and
decisional law; and the record in this case, IT APPEARS THAT:

1. On June 4, 2018, Arion Baynard (“Defendant”) pled guilty to Burglary
Second Degree and Strangulation.? By Order dated November 20, 2018, effective
October 8, 2017, Defendant was sentenced as follows: for Burglary Second Degree,

8 years at Level V, suspended after 7 years 6 months for 12 months at supervision

 

1 ID No. 0802006217, D.I. 52; ID No. 1710004763, D.L. 38.
2 ID No. 0802006217, D.I. 53; ID No. 1710004763, D.I. 39.
3 ID. No. 1710004763, D.I. 19. As part of the plea agreement, Defendant also agreed to resolve his
pending violation of probation for Case ID No. 082006217.
Level III;* for Strangulation, 5 years at Level V.° Defendant did not file a direct
appeal.

2. On September 26, 2019, Defendant filed this timely Motion for
Postconviction Relief pursuant to Superior Court Criminal Rule 61 (“Rule 61
Motion”).© Defendant also filed a Motion for Appointment of Counsel.’

3. Defendant is challenging the sentencing Order, claiming he was denied the
right to effective counsel in that his plea was not knowing, intelligent, and voluntary,
and the State breached the plea agreement thereby violating Defendant’s Due
Process rights.®

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.’ 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)(1) provides that a motion for postconviction relief is untimely
if it is filed more than one year after a final judgment of conviction. This procedural

bar is inapplicable as Defendant’s Rule 61 Motion is timely. Under Rule 61(4)(2),

 

* The first 12 months of this sentence is a mandatory term of incarceration pursuant to 11 Del. C.
§ 825.

> ID No. 0802006217, D.I. 48; ID No. 1710004763, D.I. 29.

® ID No. 0802006217, D.I. 52; ID No. 1710004763, D.L. 38.

7 ID No. 0802006217, D.I. 53; ID No. 1710004763, D.L. 39.

8 ID No. 0802006217, D.I. 52; ID No. 1710004763, D.I. 38.

? Younger v. State, 580 A.2d 552, 554 (Del. 1990).

2
successive motions are prohibited unless the pleading requirements of 61(d)(2)() or
(ii) are met. This procedural bar is inapplicable as this Defendant’s first Rule 61
motion. Rule 61(1)(3) provides that any ground for relief that was not asserted 1n the
proceedings leading to the judgment of conviction is thereafter barred unless the
defendant can establish cause for relief from the procedural default and prejudice
from a violation of his rights. Rule 61(i)(4) bars consideration of any ground for
relief formerly adjudicated in the case. As to Defendant’s claim of ineffective
assistance of counsel, Rules 61(i)(3) and 61(1)(4) are inapplicable because Defendant
could not have raised it in the proceedings leading to the judgment of conviction or
on direct appeal.!° As to Defendant’s claim of prosecutorial misconduct, however,
Rule 61(4)(3) bars this claim because Defendant has not demonstrated cause for his
failure to raise the claim nor prejudice from the alleged violation of his rights.
Consequently, the Court will only address Defendant’s claim of ineffective
assistance of counsel on the merits.

6. The standard used to evaluate claims of ineffective assistance of counsel is
the two-prong test set forth in Strickland v. Washington'' by the United States

Supreme Court, which has been adopted in Delaware.'* To prevail on a claim of

 

10 Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013) (“It is well-settled that this Court
will not consider a claim of ineffective assistance that is raised for the first time in a direct
appeal.”’).

11 466 U.S. 668 (2014).

12 Albury v. State, 551 A.2d 53 (Del. 1988).
ineffective assistance of counsel after entry of a guilty plea, a defendant must
demonstrate that: (1) counsel’s conduct fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s
errors, the defendant would not have pled guilty but would have insisted on going to
trial, resulting in his acquittal.!3 Failure to prove either prong will render the claim
insufficient.'4 “Conclusory and unsupported claims of prejudice are insufficient to
establish ineffective assistance; a defendant must make and substantiate concrete
claims of actual prejudice.”

7. To satisfy the first prong, Defendant must overcome the strong
presumption that counsel’s conduct was professionally reasonable! and assert
specific allegations establishing that counsel acted unreasonably as viewed against
“prevailing professional norms.”!”

8. Defendant contends that he received ineffective assistance of counsel in
connection with his guilty plea.'® Specifically, Defendant argues that the Plea
Agreement included the Truth in Sentencing (“TIS”) guidelines—not a

recommendation of a specific sentence by the State— and therefore, defense counsel

prejudiced Defendant by failing to withdraw the plea when the State recommended

 

13 Ashley v. State, 77 A.3d 271 (Del. 2013) (quotations omitted).
\4 Strickland, 466 U.S. at 687.

15 Sartin v. State, 103 A.3d 515 (Del. 2014).

16 Swickland, 466 U.S. at 687-88.

'" Id. at 688.

'8 TD No. 0802006217, D.I. 52; ID No. 1710004763, D.I. 38.

4
a specific sentence in excess of the TIS guidelines to the Court.!? Defendant argues
the State and defense counsel led him to believe the TIS guidelines would be
followed and defense counsel is “liable for defendant unknowingly and
unintelligently accepting [the] plea.””°

9. 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. 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. In addition, Defendant acknowledged
and confirmed that he discussed his case fully with defense counsel and was satisfied
with defense counsel’s representation. The Court accepted Defendant’s guilty plea
as knowing, intelligent, and voluntary.

10. 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

 

19 Td.
20 Td.
his representations on the Truth-in-Sentencing Guilty Plea Form.”! When a
defendant enters a guilty plea knowing and voluntarily, he waives any objection to
alleged errors and defects that occur before entry of the plea.”

11. Defendant’s assertions regarding his plea are conclusory and refuted by
the record. The TIS guidelines are voluntary and non-binding,” and the record does
not reflect that the State breached any promise with respect to Defendant’s
sentence.** Moreover, at his plea colloquy, Defendant represented to the Court that
he understood the minimum and maximum sentences he was facing. In addition,
there is no evidence in the record that Defendant’s counsel actions, or lack thereof,
demonstrate ineffective assistance of counsel under Strickland*° Therefore,
Defendant’s claim of ineffective assistance of counsel is meritless.

12. Pursuant to Superior Court Criminal Rule 61(e)(2), the Court has
discretion to appoint counsel for a first ttmely postconviction motion in a guilty plea

case.2° The success of Defendant’s Motion rested on his ability to set forth a

 

21 Colburn v. State, 128 A.3d 1172, 2016 WL 5845778, at *2 (Del. 2016) (TABLE).
22 Muldrow v. State, 146 A.3d 358, 2016 WL 4446610, at *2 (Del. 2016) (TABLE).
23 Timmons v. State, 832 A.2d 1252, 2003 WL 22214029, at *1 (Del. 2003) (TABLE).
24 See ID. No. 1710004763, D.I. 19. The plea agreement indicated it would be an open sentencing.
25 See ID No. 1710004763, D.I. 34. In response to the State’s sentence recommendation, defense
counsel urged the Court to consider mitigating factors, such as Defendant’s remorse and
acceptance of responsibility for his actions, when ordering Defendant’s sentence.
26 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;

6
substantial claim that he received ineffective assistance of counsel when in relation
to his guilty plea. For the reasons stated above, the Court does not find that
Defendant’s Rule 61 Motion raises a substantial claim that Defendant received
ineffective assistance of counsel in relation to his guilty plea, nor that specific
exceptional circumstances warrant appointment of counsel. 7’

NOW THEREFORE, Defendant’s Motion for Appointment of Counsel and
Pro Se Motion for Postconviction Relief are DENIED.

IT IS SO ORDERED.

 

 

Original to Prothonotary

Cc: Arion Baynard (SBI# 562275)
Eugene J. Maurer, Esq.
Anna E. Currier, Esq.

 

(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.

27 See id.
