IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

I.D. No. 16070191 ll
In and for Kent County

STATE OF DELAWARE,
v.

AARON T. PURNELL,

)
)
)
) RK16-08-0323-01 ATT Murder 1St (F)
) RK16-08-0324-01 PFDCF (F)

)

)

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Stephen R. Welch, Jr., Deputy Attorney General, Department of J ustice, for the State
of DelaWare.

Aaron T. Purnell, Pro se.

FREUD, Cornrnissioner
October 3 l , 2018

The defendant, Aaron T. Purnell (“Purnell”), pled guilty on June 19, 2017 the
day he Was scheduled to go to trial, after he had initially rejected the State’ s plea offer
and the jury had been picked, to one count of Atternpted Murder in the First Degree,
ll Del. C. § 531, and one count of Possession of a Firearrn During the Commission
of a Felony (“PFDCF”), ll Del. C. § 1447A. In exchange for his plea the State

entered nolle prosequis on the remaining counts including three additional counts of

State v. Purnell
ID No.1607019111
October 31 , 2018

PFDCF, one count of Possession of a Firearm by a Person Prohibited, one count of
Aggravated Menacing, one count of Reckless Endangering in the First Degree, one
count of Resisting Arrest with Force, and one count of Theft of a Firearm. As part
of the Plea Agreement the State agreed to recommend a sentence of forty-three years
incarceration, suspended after serving twenty-eight years, for probation. Due to the
nature of the charges and Purnell’s criminal history, he faced enhanced sentencing
and a total of life in prison plus 122 years had he been found guilty of all the charges.
The Court agreed with the State’s recommendation and sentenced Purnell to a total
of forty-three years incarceration suspended after twenty-eight years for probation,
eighteen of which were minimum mandatory. On July 19, 2017, Purnell, through
counsel, filed a Motion for Modification of Sentence which the Court denied on
September 11, 2017. Purnell did not appeal his conviction or sentence to the
Delaware Supreme Court. He filed, pro se, the pending motion for postconviction
pursuant to Superior Court Criminal Rule 61 on April 3, 2017 alleging, in part,
ineffective assistance of counsel.
FACTS

Purnell was arrested on July 28, 2016, in connection with a shooting incident
which had occurred at Alder Park Apartments south of Dover on July 24, 2016. On
that date, Corporal Edwin Justiniano (“Cpl. Justiniano”) of the Delaware State Police
responded to a complaint that a man had pushed a woman in the commons area
outside one of the apartment buildings and had displayed a firearm. Upon arriving at
Alder Park Apartments at approximately 8 :20 p.m., Cpl. Justiniano saw Purnell in the

area where the complaint had been reported; he could see that Purnell appeared to

2

State v. Purnell
ID No.1607019111
October 31, 2018

match the description of the assailant. Cpl. Justiniano told Purnell to “come over
here,” at which point Purnell and another individual who was in the area fled on foot
behind one of the nearby apartment buildings. Cpl. Justiniano, who was alone, gave
chase. The second individual soon veered off and ran in a different direction from
Pumell. Cpl. Justinano chose to let that person go and continued to chase Purnell.

As Cpl. Justiniano pursued Purnell behind the building, Purnell turned and
fired a shot at him from a distance of about 15 or 20 feet. Luckily, the shot missed.
Cpl. Justiniano immediately returned fire but his shots also missed. He continued to
follow the fleeing Purnell, who took a circuitous route but was eventually found in
a bush in a nearby backyard. Police located a 9 mm pistol in the bush; this firearm
was later determined to have fired a 9 mm shell casing found at the scene of the
shooting. When the shooting occurred, it was not yet dark; for this reason, Cpl.
Justiano was easily able to identify Purnell as the person who tried to shoot him. Cpl.
Justiniano’s motor vehicle recorder was operating at the time of the incident and
preserved an audio recording of Cpl. Justiniano’s initial verbal interactions with
Purnell and of the shots which were filed. The incident occurred out of range of the
camera so there was no visual recording.l

Purnell’S CONTENTIONS

In Purnell’s Motion for Postconviction Relief he raises the following grounds

for relief:

Ground one: lneffective Assistance of Counsel.

 

1 State v. Purnell, Del. Super., ID No. 1607019111, D.I. 1.

3

State v. Purnell
ID No.1607019111
October 31, 2018

I try (sic) to get another counsel on
records. In Judge Witham said keep
him are (sic) rep myself. l don’t know
the law so I was force (sic) to stay with
Capone.

On a separate page Purnell lists the following issues with his counsel:

Capone was never for me he told me that l would lose my
trial because l have dreads in tatoo’s in African american
also told my mom the same thing. He also showed me a
letter from my mom saying Aaron please take the plea, my
mom never wrote that because she was not at my court
date! Also the 4 motion a prison law worker put them
together in l sent them to Capone so he could put them in.

Ground two: Coerced Judge.
l stated on records that Capone was not
for me in that l want a new counsel.
Judge stated you keep Capone are (sic)
rep myself. l don’t know the law so l
was forced to stay with Capone.
The grounds listed above constitute Purnell’s entire argument. He did not file
a memorandum in support of his claims. A briefing order was issued requesting a
response from Purnell’s Trial Counsel and the State and giving Purnell until August
13, 2018 to file a Reply to Trial Counsel and the State. Purnell did not file a response
by August 13, 2018. However on September 27, 2018, Purnell filed a self-titled

“Separate Memoranda Motion ln Support of 61 " in which he rehashes his arguments

from his postconviction motion filed on April 3, 2018. He attempts to add an

State v. Purnell
ID No.1607019111
October 31, 2018

argument concerning the State forensic firearms expert and the voluntariness of his
guilty plea. As an initial matter l note that this filing is out-of-time. I have however
reviewed Purnell’s out-of-time arguments and have decided that they are frivolous for

the reasons outlined below and l will not seek input from Trial Counsel and the State.

DISCUSSION

Under Delaware law, this Court must first determine whether Purnell has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of his postconviction relief claim.2 This is Purnell’s first motion
for postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 61(i)(l) - requiring filing within one year
and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Purnell’s claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause
for the default and prejudice. Purnell’s first claim and to some extent his claim
concerning his guilty plea are based on ineffective assistance of counsel; therefore,
he has alleged cause for his failure to have raised them earlier. His second ground for
relief and his claim concerning the firearms expert are however clearly barred by
Superior Court Criminal Rule 61(i)(3) for failure to show cause or prejudice.

At this point, Rule 61 (i)(3) does not bar relief as to Purnell’s grounds for relief
alleging ineffective assistance of counsel, provided he demonstrates that his counsel

was in fact ineffective and that he was prejudiced by counsel’s actions. To prevail

 

2 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

5

State v. Purnell
ID No.1607019111
October 31 , 2018

on his claim of ineffective assistance of counsel, Purnell must meet the two-prong test
of Strickland v. Washington.3 In the context of a guilty plea challenge, Strickland
requires a defendant show: (l) that counsel's representation fell below an objective
standard of reasonableness; and (2) that counsel's actions were prejudicial to him in
that there is a reasonable probability that, but for counsel's error, he would not have
pled guilty and would have insisted on going to trial and that the result of a trial
would have been his acquittal4 The failure to establish that a defendant would not
have pled guilty and would have proceeded to trial is sufficient cause for denial of
relief.5 ln addition, Delaware courts have consistently held that in setting forth a
claim of ineffective assistance of counsel, a defendant must make concrete allegations
of actual prejudice and substantiate them or risk summary dismissal.6 When
examining the representation of counsel pursuant to the first prong of the Strickland
test, there is a strong presumption that counsel's conduct was professionally

reasonable.7 This standard is highly demanding.8 Strickland mandates that, when

 

3 466 U.S. 668 (1984).
4 Id. at 687.

5 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. l988))(citations omitted).

6 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *1 (Del. Supr.)).

7 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

8 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
(continued. . .)

State v. Purnell
ID No.1607019111
October 31, 2018

viewing counsel's representation, this Court must endeavor to “eliminate the
distorting effects of hindsight.”9

Following a complete review of the record in this matter, it is abundantly clear
that Purnell has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective. l find Trial Counsel’s affidavit, in conjunction with the
record, more credible that Purnell’s self-serving claims that his counsel’s
representation was ineffective. Purnell’s counsel clearly denies the allegations.

As noted, Purnell was facing the possibility of life in prison plus 122 years had
he been convicted, and the sentence and plea were reasonable under all the
circumstances, especially in light of the exceptionally strong evidence against him.
Prior to the entry of the plea, Purnell and his attorney discussed the case. The plea
bargain was clearly advantageous to Purnell. Counsel’s representation was certainly
well within the range required by Strickland. Additionally, when Purnell entered his
guilty plea, he stated he was satisfied with defense counsel’s performance. He is
bound by his statement unless he presents clear and convincing evidence to the
contrary.10 Consequently, Purnell has failed to establish that his counsel’s
representation was ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Purnell was

 

8( . . .continued)
U.S. 365, 383 (1986)).

9 Strickland, 466 U.S. at 689.

10 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (D€l. 1994)).

State v. Purnell
ID No.1607019111
October 31, 2018

somehow deficient, Purnell must satisfy the second prong of the Strickland test,
prejudice. ln setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.ll ln an attempt to show prejudice, Purnell simply asserts that his counsel
was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, l find Purnell’s grounds for relief are
meritless.

To the extent that Purnell alleges his plea was involuntary, the record
contradicts such an allegation. When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.12 At the
guilty-plea hearing, the Court asked Purnell whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Purnell if he understood he would waive his
constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and
whether he gave truthful answers to all the questions on the form. The Court asked
Purnell if he had discussed the guilty plea and its consequences fully with his

attorney. The Court asked Purnell if he was entering into the plea as he was guilty

 

11 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
556 (Del. 1990)).

12 Godinez v. Moran, 509 U.S. 389, 400 (1993).

8

State v. Purnell
ID No.1607019111
October 31, 2018

of the charges. The Court also asked Purnell if he was satisfied with this counsel’s
representation Purnell answered each of these questions affirmatively.13 l find
counsel’s representations far more credible than Purnell’s self-serving, vague
allegations.

Furthermore, prior to entering his guilty plea, Purnell signed a Guilty Plea
Form and Plea Agreement in his own handwriting. Purnell’s signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed
in the Plea Agreement. Purnell is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.14 I
confidently find that Purnell entered his guilty plea knowingly and voluntarily and

that Purnell’s grounds for relief are completely meritless.

 

13 State v. Pumell, Del. Super., ID No. 1607019111, (June 19, 2017), Tr. at 3 to 10.

14 Sommerville, 703 A.2d at 632.

State v. Purnell
ID No.1607019111
October 31, 2018

CONCLUSION
l find that Purnell’s counsel represented him in a competent and effective
manner and that Purnell has failed to demonstrate any prejudice stemming from the
representation I also find that Purnell’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Purnell’s motion for postconviction

relief as procedurally barred and completely meritless.

/s/ Andrea M. Freud
Commissioner

AMF/dsc
oc: Prothonotary

10

