   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                      )
STATE OF DELAWARE                     )
                                      )     I.D. No. 1008008293
      v.                              )
                                      )
MARC TAYLOR,                          )
                                      )
                   Defendant          )


                      Submitted: December 14, 2015
                      Decided: December 17, 2015

             On Defendant’s Motion for Postconviction Relief.
                              DENIED.

 On Defense Counsel’s Motion to Withdraw as Counsel for Petitioner Marc
                                Taylor.
                             GRANTED.

                                ORDER
Elizabeth R. McFarlan, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Patrick J. Collins, Esquire, Collins & Associates, Wilmington, Delaware,
Attorney for Defendant.

COOCH, R.J.

     This 17th day of December, 2015, upon consideration of Defendant’s
Motion for Postconviction Relief and appointed counsel’s Motion to
Withdraw as Counsel for Petitioner Marc Taylor, it appears to the Court that:

      1.    On March 16, 2012, after a 24-day-gang-participation trial,
            Marc Taylor (“Defendant”) was found guilty of Gang
            Participation; Possession with Intent to Deliver a Narcotic
                Schedule II Controlled Substance; Noncompliance with Bond
                Conditions; two counts of Possession of a Firearm by a Person
                Prohibited; Assault Second Degree; and Possession of a
                Firearm During the Commission of a Felony. On May 23,
                2012, this Court sentenced Defendant to fifteen-and-a-half
                years of unsuspended imprisonment. 1

       2.      On May 31, 2012, Defendant, through prior counsel, filed a
               Notice of Appeal with the Delaware Supreme Court. On
               September 25 Defendant’s conviction was upheld.2 Defendant
               then filed a pro se Motion for Postconviction Relief on
               November 13, 2013. Present counsel was appointed by this
               Court on January 9, 2014. Appointed counsel, after reviewing
               Defendant’s claims and the record, ultimately filed a Motion to
               Withdraw as Counsel for Petitioner, asserting essentially that
               Defendant’s Motion lacked merit. 3 Defendant was informed by
               appointed counsel that he had 30 days from the filing of the
               Motion to Withdraw to add any “points” for the Court’s
               Consideration. Defendant filed letters setting forth such points
               on May 21, July 28, August 31, September 14, and November
               18, 2015. In the first four letters, Defendant reasserts the
               arguments he made in his Motion, asks to have new counsel
               appointed, and asks the Court for legal advice. In his
               November 18 letter, Defendant again reasserts his claims for
               postconviction relief and makes an allegation that his appointed
               counsel should not have represented him, because of a conflict
               of interest.4

1
  Sentencing Order, D.I. 86.
2
  Taylor v. State, 76 A.3d 791 (Del. 2013) (rejecting Defendant’s arguments that the gang
participation statute under which he was convicted was unconstitutionally vague or
overbroad; that there was insufficient evidence to convict; and that this Court abused its
discretion in allowing hearsay evidence that Defendant shot the victim).
3
  Mot. to Withdraw as Cousnel for Pet’r. Marc Taylor at 1.
4
  In his letter, Defendant asserted that appointed counsel also represented Tyaire Brooks,
a State witness who testified at Defendant’s trial in hopes of receiving a substantial-
assistance motion from the State. Appointed counsel responded to the Court, confirming
that he did represent Tyaire Brooks in another case and that Tyaire Brooks did testify in
Defendant’s trial. Appointed Counsel’s Letter, at 1. However, appointed counsel further
stated that he
       agreed to take on the Marc Taylor postconviction case when the Office of Conflicts
       Counsel was having a very difficult time finding conflict-free counsel for him.
       [Appointed counsel] agreed to take it on the condition that if [he] felt at any point that

                                                   2
       3.      Defendant asserts four grounds for relief in his Motion.
               Defendant’s first ground is premised on multiple claims of
               ineffective assistance of counsel. Defendant asserts trial
               counsel “never followed [his] decisions on motions that [he]
               requested.”5 Specifically, Defendant requested trial counsel file
               a motion to sever; motion to suppress; motion for speedy trial;
               and a motion for an evidentiary hearing. Furthermore,
               Defendant asserts that he “never received a preliminary hearing
               to hear any evidence that was brought forth on [him] and [he]
               never received any case reviews and only was offered a plea a
               week before [his] trial.” 6

       4.      The Court has also considered the points raised by Defendant in
               his various letters submitted post-Motion to Withdraw.
               Defendant’s first ground is multifaceted. His first claim in his
               first ground for postconviction relief is trial counsel was
               ineffective, because trial counsel failed to file a motion to sever.
               In reviewing trial counsel’s decision not to file a motion to
               sever, Delaware courts consider four factors: “(1) problems
               involving a co-defendant’s extra-judicial statements; (2) an
               absence of substantial independent competent evidence of the
               movant’s guilt; (3) antagonistic defenses as between the co-
               defendant and the movant; and (4) difficulty in segregating the
               State’s evidence as between the co-defendant and the movant.”7

       5.      First, Defendant cannot satisfy the first factor: that there would
               be problems involving a co-defendant’s extra-judicial
               statements. No statements made by his co-defendant were
               admitted against him at trial. Similarly, Defendant is unable to
               satisfy the second factor: whether there is an “absence of

       [his] representation was compromised, then [he] would move to withdraw. As it turns
       out, no conflict of interest issues arose in [his] handling Mr. Taylor’s postconviction
       matter.

Id
5
  Defendant’s Motion for Postconviction Relief at 4, D.I. 125 (Page four of Defendant’s
Motion is not paginated as the other three pages are. Instead, page four in the reverse
side of page three.).
6
  Id.
7
  Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999) (citations omitted).
                                                 3
               substantial independent competent evidence of the movant’s
               guilt.”8 On all of the charges that Defendant was found guilty,
               the State presented evidence of Defendant’s own conduct to
               prove guilt.9

       6.      Nor is Defendant able to demonstrate that the third factor:
               whether the co-defendants waged antagonistic defenses against
               one another. Defendant’s co-defendant did not attempt to show
               that Defendant was actually guilty of the co-defendant’s
               charges. Rather, his co-defendant attempted to discredit the
               State’s witness and DNA evidence. 10

       7.      The only factor that might possibly militate in Defendant’s
               favor is the fourth factor: the difficulty in separating evidence
               from Defendant and co-defendants for Defendant’s conviction
               of gang participation. However, given the fact that the other
               factors indicate a motion to sever would have been denied,
               Defendant was not prejudiced by his trial counsel’s decision to
               not file a motion to sever.

       8.      Defendant’s next assertion in his first ground is trial counsel did
               not file a motion to suppress evidence. Appointed counsel
               reviewed Defendant’s allegation and “c[ould] find no facts in
               the record which would have supported such a motion.”11
               Counsel did discover that Defendant provided an un-
               Mirandized statement to the police. However, that statement
               was not used against Defendant at trial. 12 Therefore, Defendant
               was not prejudiced.

       9.      The third motion Defendant claims should have been filed is a
               motion for speedy trial. “The right to a speedy trial attaches as
               soon as the defendant is accused of a crime through arrest or
               indictment, whichever occurs first.”13 There are four factors

8
  Id.
9
  Mot. to Withdraw as Counsel for Pet. Marc Taylor at 13.
10
   Tr. of co-defendant Kevin Rasin’s Opening Statement at 90-96.
11
   Mot. to Withdraw as Counsel for Petitioner Marc Talyor, at 14.
12
   Id.
13
   Middlebrook v. State, 802 A.2d 268, 271 (Del. 2002) (citing United States v. Marion,
404 U.S. 307, 320 (1971) (holding a three-year-and-eight-month delay from the time the
defendant was indicted until the time of his trial violated his right to a speedy trial as
                                             4
              used by Delaware courts to decide issues of speedy trial. 14
              However, “[t]he length of delay is to some degree a triggering
              mechanism because until there is some delay which is
              presumptively prejudicial, there is no necessity for inquiry into
              the other factors that go into the balance.” 15

       10.    Defendant was originally arrested on August 10, 2010, for
              charges relating to drugs, resisting arrest, and failing to comply
              with bond requirements. He was re-indicted on December 12,
              2010, along with six co-defendants for his original charges, plus
              charges of assault and gang participation. A trial was scheduled
              and took place February 13, 2012, 18 months after his original
              arrest.

       11.    The delay from Defendant’s original indictment until his trial
              does not rise to the level of presumptively prejudicial.
              Defendant was indicted and then re-indicted on much more
              serious charges. His second indictment also involved several
              co-defendants, adding to the case’s complexity. A Trial
              Scheduling Order was issued by this Court and there was no
              delay with that Order. Therefore, the Defendant’s right to
              speedy trial have not been violated.

       12.    Next, Defendant asserts that his trial counsel was ineffective,
              because he did not to file a motion for an unspecified
              evidentiary hearing. “An evidentiary hearing need not be set as
              a matter of course.”16 First, a factual basis must be established
              for relief. 17 Defendant did not state any factual basis that would
              justify an evidentiary hearing. Further, appointed counsel has
              “reviewed the record and h[as] not uncovered any facts
              establishing the need for an evidentiary hearing.” 18 Therefore,
              based on Defendant’s conclusory assertion that a motion for
              evidentiary hearing should have been filed, and appointed


guaranteed by the Sixth Amendment of the United States Constitution and Article I,
Section 7 of the Delaware Constitution).
14
   Id. (citing Barker v.Wingo, 407 U.S. 514, 533 n. 36 (1972)).
15
   Id. at 273-74.
16
   State v. Manley, 706 A.2d 535, 540 (Del. Super. 1996).
17
   Id.
18
   Mot. to Withdraw as Counsel for Pet’r Marc Taylor at 16.
                                           5
                 counsel’s statement that there is no basis for such a motion, the
                 Court finds that this claim lacks merit.

          13.    Defendant’s next claim for relief under ground one is that he
                 was never afforded a preliminary hearing or a case review prior
                 to trial. Defendant’s claim that he was never afforded a
                 preliminary hearing is unfounded. Defendant attended a
                 preliminary hearing on August 20, 2010, ten days after he was
                 first arrested. 19 Furthermore, Defendant’s assertion that he did
                 not receive a case review is conclusory and does not establish,
                 or even state, that Defendant experienced any prejudice. Also,
                 after reviewing the Defendant’s assertions, appointed counsel
                 was unable to identify any prejudice. Therefore, this claim
                 lacks justification for relief.

          14.    Defendant’s final claim under ground one is that his trial
                 counsel was ineffective, because he was only offered a plea
                 agreement one week before trial. The timing of when
                 Defendant was offered a plea agreement from the State does not
                 entitle him to postconviction relief.

          15.    Defendant’s second ground for relief is that witnesses “lied” in
                 order to earn immunity for themselves in a plea agreement with
                 the State. Also, Defendant alleges that police witnesses
                 committed perjury when they testified against him at trial.
                 Appointed counsel “c[ould] find no basis in the record to
                 support allegations that witnesses lied under oath, or that their
                 testimony, including whether they received a benefit in
                 exchange for that testimony, was not subjected to cross-
                 examination at trial.”20 Again, Defendant does not include any
                 factual allegations to substantiate his claim. Therefore, since
                 his claim is conclusory, and his appointed counsel could find no
                 basis for the claim, Defendant’s assertion of perjury lacks merit.

          16.    Defendant’s third ground for relief asserts that the State offered
                 insufficient evidence to convict him of the charge of Gang
                 Participation. In support of this claim, Defendant stated that the
                 members of his gang who testified “stated that either they

19
     D.I. 1.
20
     Mot. to Withdraw as Counsel for Pet’r Marc Taylor at 17.
                                             6
              didn’t know [him] or that [he] wasn’t a member and never seen
              [sic] [him] before.”21

       17.    This claim was rejected by the Delaware Supreme Court on
              Defendant’s direct appeal. 22 Therefore, the Court will not
              analyze the merit of Defendant’s third ground for relief,
              because the claim has been previously adjudicated.23

       18.    Defendant’s final ground for relief is that appellate counsel
              (who was different than trial counsel) was ineffective, because
              appellate counsel failed to raise the issue of perjurious and
              inconsistent testimony on Defendant’s direct appeal. That
              claim was addressed in Defendant’s second ground for
              postconviction relief. Also, appointed counsel “did not find
              that such a claim could be ethically advocated in an amended
              motion for postconviction relief.” 24 Since that claim has
              already been addressed, Defendant’s fourth ground for relief
              lacks merit. 25


Therefore, Defendant’s Motion for Postconviction Relief is DENIED.
Appointed counsel’s Motion to Withdraw as Counsel for Marc Taylor is
GRANTED.


       IT IS SO ORDERED.

                                                         ______________________
                                                           Richard R. Cooch, R.J.

cc:    Prothonotary
       Investigative Services


21
   Def’s. Mot. for Postconviction Relief at 3.
22
   Taylor v. State, 76 A.3d 791, 799 (Del. 2013) (“There was sufficient evidence for a
reasonable juror to find that Taylor was an active participant in the TrapStars gang. He
sold drugs to Rasin, held guns for the TrapStars, obtained guns for other members, was
present during the commission of several violent crimes, and discarded used firearms.”).
23
   Super. Ct. Crim. R. 61(i)(4).
24
   Mot. to Withdraw as Cousnel for Pet’r Marc Taylor at 20.

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