   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                      )
STATE OF DELAWARE                     )
                                      )     I.D. No. 1211021787
      v.                              )
                                      )
ROBERT J. HOHN III                    )
                                      )
                   Defendant          )


                      Submitted: November 18, 2014
                        Decided: January 21, 2015

             On Defendant’s Motion for Postconviction Relief.
                     SUMMARILY DISMISSED.

                                ORDER
Victoria Witherell, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State

Robert J. Hohn III, Wilmington, Delaware, pro se


COOCH, R.J.

       This 21st day of January, 2015, upon consideration of Defendant’s
First Motion for Postconviction Relief, it appears to the Court that:

      1.    Defendant Robert J. Hohn III pled guilty in September 2013 to
            Assault in the Second Degree and Misdemeanor Endangering
            the Welfare of a Child. Defendant was then sentenced to a total
            of nine years years at Level V, suspended after six years and
            one month for two years at Level IV, suspended after six
            months for two years and eleven months are Level III
              probation. 1 The Delaware Supreme Court affirmed
              Defendant’s conviction and sentence on appeal.2

       2.     Defendant filed the instant motion on November 13, 2014.
              Defendant asserts three grounds for relief in his motion, all of
              which are listed here in toto:
                 (1) Ineffective Assistance of Counsel – “Counsel did not make full
                     magnitude of plea known and thus involuntary. Counsel did not
                     make mention of Bench Trial. Counsel did not file for suppression
                     of evidence. Counsel did not fully explain my rights. Counsel
                     ignored important evidence in favor of defen[s]e. Counsel refused
                     to present counter plea offer. Counsel did not state or explain plea
                     was an open plea. Counsel did not request supporting evidence
                     from co-defendant’s counsel. Counsel refused request for trial.”

                 (2) Coercion of Guilty Plea – “Counsel refused to go to trial (“I think
                     you are going to have to take this plea.”). Counsel used fear tactics
                     (“look at all the time you face if you lose.”). Counsel used co-
                     defendant as leverage (“Shannon has already signed her plea and
                     wants you to sign yours.”).

                 (3) Unfulfilled Plea Agreement – “Counsel stressed repedativly [sic]
                     the presumptive sentencing guidelines. Counsel gave false hope of
                     time served (“I don’t see you doing any more time.”). Counsel
                     stressed favorable results if trial was waived. Counsel stressed
                     leanency for not making the victim take the witness stand. Counsel
                     stressed favorable outcome for a first offen[s]e with no prior
                     history.” 3

       3.     Defendant’s Motion for Postconviction Relief is controlled by
              the recently amended Superior Court Criminal Rule 61. 4 Under
              Superior Court Criminal Rule 61(i), a Motion for
              Postconviction Relief can be potentially procedurally barred for
              time limitations, successive motions, procedural defaults, and
              former adjudications.5 Before addressing the merits of this

1
  Sentence Order, D.I. #15 (Dec. 6, 2013).
2
  See Hohn v. State, 100 A.3d 1021, 2014 WL 4050183 (Del. Aug. 14, 2014) (ORDER).
3
  Def.’s Mot. for Postconviction Relief at 3, D.I. #28 (Nov. 13, 2014).
4
  The most recent set of amendments to Super. Ct. Crim. R. 61 took effect on June 4,
2014.
5
  Super. Ct. Crim R. 61(i)(1)-(4).


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               Motion for Postconviction Relief, the Court must address any
               procedural requirements of Rule 61(i).6

       4.      Rule 61(i)(1) provides that a motion exceeds time limitations if
               it is filed more than one year after the conviction is finalized, or
               if the motion asserts a newly recognized, retroactively applied
               right more than one year after it is first recognized. 7

       5.      Rule 61(i)(2) provides that a motion is successive if it is the
               second or subsequent motion made under this Rule, and such
               successive motions are prohibited unless the pleading
               requirements of 61(d)(2)(i) or (ii) are met. 8

       6.      Rule 61(i)(3) bars consideration any ground for relief “not
               asserted in the proceedings leading to the judgment of
               conviction,” unless the movant can show “cause for relief from
               the procedural default” and “prejudice from violation of the
               movant’s rights.”9

       7.      Rule 61(i)(4) bars consideration of any ground for relief
               formerly adjudicated in the case, including “proceedings
               leading to the judgment of conviction, in an appeal, in a
               postconviction proceeding, or in a federal habeas corpus
               hearing.”10

       8.      If any of the above procedural bars exist, the Court will not
               consider the merits of the claims unless the Defendant can show
               that the exception found in Rule 61(i)(5) applies. 11

       9.      Rule 61(i)(5), as recently amended, provides that consideration
               of otherwise procedurally barred claims is limited to claims that
               the Court lacked jurisdiction, or claims that satisfy the new

6
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7
  Super. Ct. Crim. R. 61(i)(1).
8
  See Super. Ct. Crim. R. 61(i)(2). For further discussion of the pleading standards
articulated in the newly amended Rule, see infra.
9
  Super. Ct. Crim. R. 61(i)(3).
10
   Super. Ct. Crim. R. 61(i)(4).
11
   Super. Ct. Crim. R. 61(i)(5).


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              pleading standards set forth in 61(d)(2)(i) and (ii). 12 The new
              pleading standards require that the Motion either:

                  (i) Pleads with particularity that new evidence
                       exists that creates a strong inference that the
                       movant is actually innocent in fact of the acts
                       underlying the charges of which he was
                       convicted; or
                  (ii) Pleads with particularity a claim that a new
                       rule of constitutional law, made retroactive to
                       cases on collateral review by the United States
                       Supreme Court or the Delaware Supreme
                       Court, applies to the movant’s case and
                       renders the conviction . . . invalid.13

       10.    This Court finds that Defendant’s Motion was timely filed and is
              not otherwise procedurally barred. 14 However, “[i]f it plainly
              appears from the motion for postconviction relief and the record
              of prior proceedings in the case that the movant is not entitled to
              relief, the judge may enter an order for its summary dismissal
              and cause the movant to be notified.” 15 A movant must support
              his or her assertions with ‘concrete allegations of actual
              prejudice, or risk summary dismissal.’” 16 Sufficiently developed
              allegations are required in support of all grounds for relief,
              including claims of ineffective assistance of counsel. 17 This
              Court “will not address Rule 61 claims that are conclusory and
              unsubstantiated.”18



12
   Id.
13
   Super Ct. Crim R. 61(d)(2)(i).
14
   The Supreme Court affirmed Defendant’s conviction in August of 2014 and the instant
motion followed three months later. Defendant is within the one-year filing window
articulated by the Rule.
15
   Super. Ct. Crim. R. 61(d)(5).
16
   State v. Chambers, 2008 WL 4137988, at *1 (Del. Super. Aug. 25, 2008) (quoting
State v. Childress, 2000 WL 1610766, at *1 (Del. Super. Sept. 19, 2000)).
17
   See, e.g., State v. Robbins, 1996 WL 769219, at *1 (Del. Super. Dec. 18, 1996).
18
   State v. Owens, 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002).


                                          4
       11.     Defendant alleges ineffective assistance of counsel, but does
               not set forth sufficient evidence to survive either prong of
               Strickland. To successfully articulate an ineffective assistance
               of counsel claim, a claimant must demonstrate: 1) that
               counsel’s performance was deficient, and 2) “that there is a
               reasonable probability that, but for counsel’s errors, he would
               not have pleaded guilty and would have insisted on going to
               trial.”19 To prove counsel’s deficiency, a defendant must show
               that counsel’s representation fell below an objective standard of
               reasonableness.20 Moreover, a defendant must make concrete
               allegations of actual prejudice and substantiate them or risk
               summary dismissal.21 Defendant makes only one-sentence
               claims regarding counsel’s alleged deficiencies and nothing
               more. This Court finds such claims are insufficient to survive
               the Strickland standard.

       12.     Defendant also makes numerous unsupported allegations
               regarding the propriety of his plea and the circumstances under
               which it was entered into. This Court finds that all of
               Defendant’s claims are without merit. A guilty plea entered
               voluntarily “constitutes a waiver or any alleged errors or defects
               occurring prior to the entry of the plea.” 22 Moreover,
               Defendant acknowledged on his truth-in-sentencing guilty plea
               form that he read and understood the information on the form,
               including the maximum penalties to which he was subject.
               Defendant also indicated on the form that no one had threatened
               or forced him to enter the plea. 23 Finally, a lengthy plea
               colloquy was conducted during which this Court determined



19
   Albury v. State, 551 A.2d 53, 60 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52
(1985)) (applying second prong of Strickland analysis in the context of a guilty plea); See
also Strickland v. Washington, 466 U.S. 668, 688 (1984).
20
   Albury, 551 A.2d at 60.
21
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
22
   Bentley v. State, 27 A.3d 550, 2011 WL 3793779, at *2 (Del. 2011) (TABLE) (citing
Downer v. State, 543 A.2d 309, 311-13 (Del. 1988)).
23
   See Plea Agreement and Truth-in-Sentencing Guilty Plea Form, D.I. #12 (Sept. 16,
2013).


                                             5
                 that Defendant was entering his plea knowingly, intelligently,
                 and voluntarily. 24

          13.    After review of the record, this Court finds no basis upon which
                 to conclude that Defendant’s guilty plea was involuntary or was
                 entered into based upon a misunderstanding or mistake as to
                 Defendant’s legal rights.

          14.    Despite the timeliness of Defendant’s Motion, it plainly appears
                 from the contents of the Motion that Defendant’s claims should
                 be summarily dismissed. In Defendant’s Motion, he sets forth a
                 bare-bones list of broad, conclusory statements with no
                 underlying facts or law to support his claims. This Court
                 declines to address Defendant’s Rule 61 claims further,
                 consistent with Rule 61(d)(5). Summary Dismissal is the
                 appropriate disposition of Defendant’s Motion for
                 Postconviction Relief.



Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY
DISMISSED.


          IT IS SO ORDERED.

                                                            ______________________
                                                              Richard R. Cooch, R.J.

oc:       Prothonotary
cc:       Investigative Services




24
     See Transcript of Plea Colloquy, D.I. # 18 (Feb. 14, 2014).


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