IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. # 1407023965

V.

DALE K. McNEILL,

\/\/\,/\_/\/\./\/

Defendant.

Submitted: July 18, 2016
Decided: October 1 1, 2016

Upon Defendant’s Motion for Post-Conviction Relief: DENIED

This 11th day of October, 2016, upon consideration of Defendant’s Motion
for Post-Conviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”) and the record in this case, it appears to the Court that:
FACTUAL AND PROCEDURAL BACKGROUND
1. On July 29, 2014, Dale K. McNeill Was arrested following a search of
his motel room. At the time of the search, McNeill Was on LeVel II probation as a
result of 2010 convictions for forgery and conspiracy.1 The search Was conducted
after Probation Officer William DuPont learned that McNeill Was staying in the
Dutch Inn Motel, contrary to the address he had provided to probation. According
to the motel’s records, McNeill had been registered there since July 22, 2014.2 A

“Safe Streets” team entered McNeill’s motel room on July 29, 2014. They found

 

1 See I.D. Nos. 1001004788 and 1001020304.
2 See State v. McNel'll, 2015 WL 1880968 (Del. Super. Apr. 23, 2015).

him in the room and, during a protective sweep for weapons, found heroin. After
obtaining permission from a probation supervisor, DuPont conducted an
administrative search of the room and a rental vehicle parked outside the room.
Drug paraphernalia and drugs were found during that search.3

2. In addition to being indicted on new charges, McNeill also was
charged with violating the probation he then was serving for his 2010 convictions.
On October 22, 2014, the Court held a contested violation of probation hearing and
received testimony from the State regarding the evidence found in the motel room.4
At the conclusion of the hearing, the Court adjudged McNeill guilty of violating
his probation and sentenced him, effective July 29, 2014, to a total of four years of
unsuspended Level V time, followed by periods of partial incarceration and
probation.5 McNeill filed a motion to modify his violation of probation sentence
under Superior Court Criminal Rule 35. That motion was denied by the sentencing
judge.6

3. In the meantime, pretrial proceedings continued for the new charges
filed against McNeill. On January 23, 2015 , McNeill’s counsel, Joseph M. Leager,
Jr. (“Trial Counsel”), filed a motion to suppress the drugs and other evidence found

in McNeill’s motel room on the basis that the probation officers lacked reasonable

 

3 Id.
4 see D.I. 11.
5 State v. McNeill, I.D. Nos. 1001004788 & 1001020304 (Del. Super. Oct. 22, 2014)
gSEN"I`ENCING ORDER).
Sfr:!e v. .McNe."Zl, I.D. Nos. 1001004788 & 1001020304 (Del. Super. Dec. 10, 2014) (ORDER).

2

suspicion to conduct an administrative search of the motel room (the “Motion to
Suppress”). This Court took the Motion to Suppress under advisement after the
hearing and issued its opinion denying the motion on April 23, 2015.7

4. In August 2015, McNeill began making requests to be permitted to
represent himself without Trial Counsel’s assistance After conducting a colloquy
with McNeill, this Court granted his motion to proceed pro se. On the morning of
trial, the Court engaged in a discussion with McNeill regarding trial procedures,
the evidence the State intended to present, and the fact that, if convicted of drug
dealing, McNeill would qualify as a habitual offender and would face a mandatory
life sentence under subsection (b) of the habitual offender statute then in effect.8
McNeill initially confirmed he wanted to proceed to trial and continue to represent
himself, but shortly thereafter changed his mind and, after being granted an
opportunity to speak with his wife, accepted a plea offer extended by the State.9

5. Before accepting McNeill’s plea, the presiding judge reviewed the
plea paperwork and engaged in a detailed colloquy with McNeill regarding his
decision to plead guilty. During the colloquy, the Court first reviewed the charges
to which McNeill was pleading guilty. The Court read each relevant charge in the

indictment, and McNeill admitted on the record that he had committed each such

 

7 State v. McNeill, 2015 WL 1880968 (Del. Super. Apr. 23, 2015).

8 State v. McNeill, I.D. No. 1407023965 (Del. Super. Sept. 17, 2015) (PLEA TRANSCRIPT)
(he.l'eir\after “Tr.”) at 4-10.

9 1¢:.3110-11,22,27.

offense.10 At the hearing, as well as on the Truth-in-Sentencing Guilty Plea form,
McNeill denied that anyone had forced him to enter into the plea.ll McNeill
acknowledged that he voluntarily was waiving his constitutional rights, including
the right to trial and the right to appeal, by pleading guilty.12 McNeill
acknowledged that the State intended to file a motion to declare him a habitual
offender under subsection (a) of the habitual offender statute then in effect. The
Court confirmed McNeill was aware that, as a result of his status as a habitual
offender, he would face a potential life sentence for the drug dealing charge, but
would not face any mandatory term of imprisonment because the State also agreed
not to file a motion to declare him a habitual offender under subsection (b) of the
statute.13 Finally, McNeill acknowledged that he accepted the plea because he
recognized the likelihood he would be convicted at trial and then would face a
mandatory life sentence, without the possibility of probation or parole, under
subsection (b) of the habitual offender statute.14

6. At the conclusion of that colloquy, the judge accepted McNeill’s plea
and found it was knowing, intelligent, and voluntary.15 That judge requested a pre-

sentence investigation In the plea agreement offered by the State, the State agreed

 

10 Id. at 27-28.

11 rd. at 28-29, D.I. 48.

12 Tr. at 29-30.

13 rd. ar 30-32.

14 1d.at33-35; 11 Del. C. § 4214(b) (2015).
15 Tr. at 12.

to cap its recommendation for unsuspended Level V time at five years.16 At
sentencing on January 8, 2016, the Court granted the State’s motion to declare
McNeill a habitual offender under 11 Del. C. § 4214(a). McNeill was sentenced to
four years at Level V for the drug dealing charge, and to six months at Level V,
suspended for 1 year at Level III, for the drug paraphernalia charge.17

7. McNeill filed this Motion for post-conviction relief on March 3, 2016.
In it, he alleged he was entitled to relief because (i) the search of his motel room
was illegal; (ii) he received ineffective assistance from Trial Counsel; and (iii) the
judge who sentenced McNeill for violating his probation and for the charges in this
case abused her discretion.18 The Court ordered Trial Counsel to respond to the
Motion by affidavit and further ordered the State to respond after Trial Counsel’s
affidavit was filed. Finally, the Court granted McNeill time to respond to the
submissions by Trial Counsel and the State. McNeill responded to each such
submission19
ANALYSIS

A. Procedural bars to McNeill’s claims
8. Before addressing the merits of any claim for post-conviction relief,

this Court first must determine whether the motion procedurally is barred under

 

16 D.I. 48.
11 D.I. 61.
18 D.I. 64.
19 D.I. 73, 76.

Rule 61.20 A motion for post-conviction relief may be barred for timeliness and
repetition, among other things. A motion filed under Rule 61 is untimely if it is
filed more than one year after a final judgment of conviction.21 A defendant also is
barred from filing successive motions for post-conviction relief.22 The rule further
prohibits motions based on any ground for relief that was not asserted in the
proceedings leading up to the judgment of conviction, unless the movant
demonstrates “cause for relief from the procedural default” and “prejudice from

”23 Finally, the Rule bars consideration of any

violation of the movant’s rights.
ground for relief that previously was adjudicated in the case.24

9. Notwithstanding the aforementioned procedural bars, this Court may
consider a motion that otherwise is barred if the motion is based on claims that the
Court lacked jurisdiction or the motion satisfies the pleading requirements set forth
in Rule 61(d)(2).25 Rule 61(d)(2) requires that the movant plead with particularity
that (i) new evidence exists that creates a strong inference that the movant actually

is innocent in fact of the acts underlying the charges of which he was convicted, or

(ii) a new rule of constitutional law, made retroactive to cases on collateral review

 

20 Bailey v. S¢a¢e, 588 A.zd 1121, 1127 (Del. 1991); YOunger v. s¢a¢e, 580 A.zd 552, 554 (Dei.
1990).

21 super. Ct. Crim. R. 61(i)(1).

22 Id. 61(i)(2); see id. 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive
motions).

13 Id. 61(i)(8).

24 Id. 61(i)(4).

25 Id. 61(i)(5).

by the United States Supreme Court or the Delaware Supreme Court, applies to the
movant’s case and renders the conviction or death sentence invalid.

10. McNeill’s Motion was filed less than a year after his sentence became
final, and it therefore is timely. The Motion alleges ineffective assistance of
counsel, which could not be raised at any earlier stage in the proceedings26
McNeill’s other claims for relief have been waived or otherwise procedurally are
improper, as explained below.

B. McNeill’s challenge to the search of the motel room

11. McNeill first argues that the July 29, 2014 search of the motel room
was illegal and conducted in violation of guidelines issued by Probation and
Parole. McNeill disputes the factual findings made by this Court when it denied
his Motion to Suppress; he contends the drugs were not found during a protective
search for weapons, but instead were found during a full search of the room that
was conducted without probable cause.27

12. This Court resolved McNeill’s Motion to Suppress in its April 23,
2015 opinion. Even if the Court erred in its decision denying the Motion to
Suppress (though there is nothing before me to support a finding of error),

McNeill’s guilty plea waived any claims based on errors or defects that occurred

 

26 Whittle v. State, 138 A.3d 1149 (Del 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2
(Del. Super. Aug. 25, 2016).
21 D.I. 64, I).l. 76.

before entry of the plea.28 McNeill’s Motion for post-conviction relief therefore is
denied as to this claim.
C. McNeill’s allegations of judicial abuse of discretion

13. McNeill’s claim of judicial abuse of discretion relates to the Court’s
finding that he violated probation and the associated October 22, 2014 sentence, as
well as the sentence issued after his plea to drug dealing and possession of drug
paraphernalia McNeill argues the judge who presided over his contested violation
of probation hearing erred by (i) failing to postpone the hearing until after the
underlying charges were resolved, (ii) failing to give McNeill notice of the hearing
date so his witnesses could be present, (iii) relying on testimony that he contends
was not sufficient to support a finding that he violated the terms of his probation,
and (iv) giving him an unfairly harsh violation of probation sentence.29 McNeill
further argues that, when that same judge sentenced him in this case, she was
closed-minded, did not consider the presentence investigation, and was not the
judge who accepted McNeill’s plea.

14. None of McNeill’s claims of judicial abuse of discretion properly is

raised by a Rule 61 motion filed in this case. As to McNeill’s challenge to his

 

28 see Cooper v. S¢a¢e, 2008 WL 2410404, ar *1 (Del. Jun. 16, 2008); Miller v. sm¢e, 840 A.2d
1229, 1232 (Del. 2003).
29 D.I. 76 at xI-xIII.

sentences, such claims do not fall under Rule 61, but rather under Rule 35.30 If
McNeill intends to seek reduction or modification of his sentence on those
grounds, he may file Rule 35 motions in those cases, provided he can overcome the
procedural bars to such motions. As to McNeill’s challenge to the Court’s finding
that he violated probation for his 2010 convictions, such a challenge may not be
made in this case, but instead must be made in those cases. Even if the challenge
to that judgment of guilt properly was before the Court in this Motion, it would be
barred for timeliness under Rule 61(1)(1).
D. McNeill’s claims of ineffective assistance of counsel

15. McNeill raises the following contentions in support of his claim that
Trial Counsel was ineffective: (1) Trial Counsel was prejudiced against McNeill
because he refused to accept an early plea offer from the State; (2) Trial Counsel
failed to file any motions on McNeill’s behalf and failed to prepare a defense; (3)
Trial Counsel failed to meet with McNeill to discuss the case; and (4) Trial
Counsel “did everything in his power to help the State convict me.”31

16. To prevail on a post-conviction claim for ineffective assistance of

counsel in the context of a guilty plea, a defendant must establish that (i) counsel’s

representation fell below an objective standard of reasonableness, and (ii) but for

 

30 Compare Super. Ct. Crim. R. 35 (“Correction or Reduction of Sentence”), with Super. Ct.
Crim. R. 61(a) (“This rule governs the procedure on an application . . . seeking to set aside the
judgment of conviction or a sentence of death . . . .”).

31 D.I. 64; see also I).l. 73.

counsel’s unprofessional errors, there is a reasonable possibility the defendant
would not have pleaded guilty and instead would have insisted on going to trial.32
There is a strong presumption that counsel’s representation was reasonable33
Accordingly, a defendant must make specific allegations of actual prejudice and
substantiate them; vague allegations or conclusory statements will not suffice.34

17. McNeill’s first contention is that Trial Counsel was “prejudice[d]”
against McNeill from their first meeting and exhibited that prejudice by failing to
prepare the case, file motions, or communicate with McNeill, Most of those
allegations are subsumed within later contentions and will be addressed below.
McNeill’s vague reference to Trial Counsel’s “prejudice,” without specific
allegations in support, does not meet the standard necessary to establish ineffective
assistance of counsel.35 The only specific allegation McNeill makes on this point
is that Trial Counsel told McNeill that “[counsel] don’t care because at the end of

the day, he still get[]s to go home to play his ‘play-station games.”"?’6 Assuming

for the sake of argument that Trial Counsel made this statement,37 McNeill fails to

 

321110.¢113/ v. S¢a:e, 551 A.2d 53, 59 (Del. 1988).

33 Wrzghr v_ .5'1¢1:¢,0'71 A.2d 1353, 1356 (1)@|. 1996).

34 [d.; Monroe v. Sfa.te, 2015 WL 140'}'856, at *5 (Del. Mar. 25, 2015).

35 See; e.g. Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (holding that conclusory and
unsupported assertions of ineffective assistance fail to establish that counsel acted unreasonably
or that the defendant was prejudiced).

36 D.I. 73 at v; D.I. 76 at x.

37 Because McNeill did not raise this specific allegation in his initial Motion, Trial Counsel
therefore did not have an opportunity to respond directly to it. The statement, if made, would be

10

allege or demonstrate that, but for Trial Counsel’s unprofessional statement,
McNeill would not have pleaded guilty.

18. McNeill next argues Trial Counsel was ineffective because he failed
to prepare a defense of McNeill’s case and failed to file any motions on his behalf.
Portions of McNeill’s argument in support of this claim relate to Trial Counsel’s
representation of McNeill during the violation of probation hearing. For the
reasons set forth above, those contentions are not properly before the Court in this

8 As to Trial Counsel’s representation of McNeill in this case, McNeill

case.3
argues that Trial Counsel (i) withdrew a motion to dismiss without consulting with
McNeill and lied about his reasons for doing so, (ii) initially refused to file the
Motion to Suppress and later did a poor job pursuing that motion, and (iii) failed to
meet with potential witnesses to prepare McNeill’s defense of the charges.

19. As to McNeill’s first contention regarding the motion to dismiss that
Trial Counsel filed on October 16, 2014, McNeill confusingly argues that Trial
Counsel falsely stated the motion was untimely and falsely stated no indictment
had been obtained. Accepting McNeill’s assertions for the sake of argument,

McNeill does not explain how, but for Trial Counsel’s conduct, McNeill would not

have entered a guilty plea. A review of the record indicates the motion to dismiss

 

an unprofessional one, but it would be unfair to so conclude without first giving Trial Counsel an
ogpportunity to respond.
3 See .s'upm 11 14.

ll

was based on the absence of an indictment, and the State later obtained an
indictment39

20. As to McNeill’s contentions regarding the Motion to Suppress, the
record is clear that Trial Counsel did file a Motion to Suppress the evidence found
in the motel room. McNeill disagrees with the arguments Trial Counsel advanced,
and contends that a witness available to testify at the suppression hearing would
have testified that McNeill “never moved from [his] address, and in[] fact on
Sunday and Monday July 27th, [he] was at the [address registered with probation]
cooking.”40 That Trial Counsel chose not to call this witness does not demonstrate
that his representation of McNeill fell below an objective standard of
reasonableness Whether McNeill continued to maintain a residence at the address
registered with probation would have little, if any, bearing on whether the
probation officers had reasonable grounds to conduct a protective sweep or an
administrative search when presented with motel registration records, McNeill’s
presence alone in the room, and McNeill’s nervous and unusual response to the
officers’ presence.

21. With respect to McNeill’s contention that Trial Counsel failed to
prepare a defense of the case, McNeill’s arguments do not identify with specificity

what Trial Counsel failed to do in this regard. McNeill vaguely refers to witnesses

 

39 See D.I. 5, 8.
40 D.I. 73 at Iv.

12

who would have testified at trial, without identifying those witnesses or indicating
what testimony they would have provided. McNeill’s vague contentions do not
meet either of the elements necessary to sustain a claim of ineffective assistance of
counsel.

22. McNeill’s third argument is that Trial Counsel was ineffective
because he failed to communicate with McNeill regarding important decisions and
failed to keep him informed about the progress of the case. First, McNeill’s
allegations on this point are vague and do not meet the standard necessary to show
that Trial Counsel’s performance fell below an objective standard of
reasonableness or that McNeill was prejudiced as a result. Second, Trial Counsel’s
affidavit indicates that he communicated with McNeill at court appearances, over
video teleconference, and through letters. McNeill’s allegations in support of this
contention fail for lack of specificity and for failure to demonstrate that Trial
Counsel’s representation fell below an objective standard of reasonableness

23. Finally, McNeill contends Trial Counsel “helped” the State, rather
than McNeill, Other that repeating this conclusory statements several times,
McNeill does not explain the basis for this contention. The record demonstrates
that Trial Counsel filed motions on McNeill’s behalf and communicated with him
until he elected to proceed pro se. It ultimately was McNeill who chose to accept

the plea agreement offered by the State. There is nothing in the record from which

13

this Court can conclude Trial Counsel assisted the State in its prosecution of

McNeill,

For all the foregoing reasons, Dale K. McNeill’s Motion for Post-Conviction

Relief is DENIED. IT IS SO ORDERED./) j’)/

V Abi@ail lVI. LeGrow, Judge

Original to Prothonotary

cc: Barzilai K. Axelrod, Deputy Attorney General
Joseph M. Leager, Jr., Esquire
Dale K. McNeill (SBI No. 00139984)

14

