           IN THE SUPREME COURT OF THE STATE OF DELAWARE

FELIPE GOMEZ,                         §
                                      §      No. 6, 2015
      Defendant Below,                §
      Appellant,                      §      Court Below: Superior Court
                                      §      of the State of Delaware,
      v.                              §      in and for Sussex County
                                      §
STATE OF DELAWARE,                    §      Cr. ID. No. 1107002911
                                      §
      Plaintiff Below,                §
      Appellee.                       §

                         Submitted: December 2, 2015
                         Decided:   December 3, 2015


Before HOLLAND, VALIHURA, and SEITZ, Justices.

                                     ORDER

      This 3rd day of December, 2015, it appears to the Court that:

      (1)    In 2011, while high on crack cocaine, Felipe Gomez kidnapped and

held at knifepoint his ex-girlfriend’s roommate. He placed duct tape over her

mouth, eyes, hands, and feet, and placed the victim in her car. He then drove her

car to a muddy area and raped her repeatedly over the course of the night. The

next morning, he released the victim and turned himself in to police.

      (2)    Gomez pled guilty to the crimes so that he would not be sentenced as

a habitual offender. A pre-sentence report detailed the hardships he endured

throughout his life, including abuse and neglect as a child, mental illness, drug

addiction, and a previous suicide attempt. Gomez, his mother, and his sister all
testified at sentencing and recounted many of the same hardships. Despite these

mitigating factors, the court sentenced Gomez to life plus fifty years incarceration

due to the gruesome nature of the crime and Gomez’s extensive criminal history.

This is Gomez’s appeal from the Superior Court’s denial of his motion for

postconviction relief.      In that motion, Gomez argued his trial counsel was

ineffective for failing to present additional evidence about his difficult life.

Because trial counsel’s representation did not fall below an objective standard of

reasonableness and the minimal new mitigating evidence Gomez wished to present

would not have affected the sentencing judge’s decision, the Superior Court

correctly denied Gomez’s motion for postconviction relief.                Accordingly, we

affirm.

       (3)    Gomez argues that the Superior Court abused its discretion 1 by

finding trial counsel was not ineffective for failing to investigate and present

readily available mitigation evidence at the sentencing hearing beyond the pre-

sentence report. This “new” mitigation evidence includes: (1) physical, emotional,

verbal, and sexual abuse by Gomez’s father; (2) impoverished conditions

throughout Gomez’s life; (3) additional suicide attempts; (4) an unstable

childhood; (5) his father’s extreme favoritism of Gomez’s other siblings; and (6) a

low or below average intelligence (an IQ of 82). The State responds by asserting

1
  We review the Superior Court’s decision on a motion for postconviction relief based upon
claims of ineffective assistance of counsel for abuse of discretion. Gattis v. State, 697 A.2d
1174, 1178 (Del. 1997). We review constitutional questions and questions of law de novo.
Hoskins v. State, 102 A.3d 724, 728 (Del. 2014).
                                              2
that the new mitigation evidence would not have persuaded the sentencing court to

impose a lesser sentence given the gravity of the crime and the extent of Gomez’s

criminal record.

       (4)     To prevail on a claim of ineffective assistance of counsel “[i]n the

context of a guilty plea challenge, Strickland2 requires a defendant to show that:

(1) counsel’s representation fell below an objective standard of reasonableness;

and (2) counsel’s actions were so prejudicial that there is a reasonable probability

that, but for counsel’s errors, the defendant would not have pleaded guilty and

would have insisted on going to trial.” 3 A defendant must make “a concrete

showing of actual prejudice.” 4 Furthermore, the defendant must overcome a strong

presumption that trial counsel’s conduct was professionally reasonable. 5

       (5)     Here, only some of the information Gomez desires to present is new. 6

“While defense counsel has a general duty to investigate any mitigating or

exculpatory evidence, counsel is not required to pursue all lines of investigation

about potentially mitigating evidence.” 7 The pre-sentence report documented

Gomez’s abuse as a child, mental health issues, cocaine addiction, and his first

suicide attempt. Gomez’s mother and sister both spoke on his behalf describing

2
  Strickland v. Washington, 466 U.S. 668 (1984).
3
  Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
4
  Id.
5
  Brooks v. State, 40 A.3d 346, 354 (Del. 2012).
6
  State v. Gomez, 2014 WL 8042732, at *9 (Del. Super. Dec. 4, 2014) (“[The Superior Court]
was aware of all of the general factors set forth above, except for defendant’s IQ of 82. That fact
is of no significance now, nor would it have been at the time of sentencing.”).
7
  Alston v. State, 2015 WL 5297709, at *2 (Del. Sept. 4, 2015).
                                                3
him as a good person when sober. Gomez himself spoke and apologized. Other

than Gomez’s reduced IQ, most of the items Gomez wishes to present now were

merely elaborations of Gomez’s difficult life experiences that counsel already

investigated and presented to the court. Though counsel has the duty to investigate

whether mitigating evidence exists, at some point Gomez has an obligation to relay

information knowable only to him. 8 At any point Gomez could have relayed the

information he now wishes to present on appeal.                    Given counsel’s thorough

investigation and presentation of evidence to mitigate Gomez’s offenses, counsel’s

representation did not fall below an objective standard of reasonableness.

       (6)     The Superior Court “has broad discretion to consider information

pertaining to a defendant’s personal history and behavior which is not confined

exclusively to conduct for which that defendant was convicted.” 9 The Superior

Court, with the benefit of an extensive pre-sentence report and several character

witnesses, found that four aggravating factors—Gomez’s attitude towards the

offense, prior violent criminal conduct, repetitive criminal history, and lack of

amenability to lesser sanctions—took precedence over any of the mitigating

8
  See Sykes v. State, 2015 WL 417514, at *6 (Del. Jan. 30, 2015) (“The movant must establish a
reasonable probability that a competent attorney, aware of the available mitigating evidence,
would have introduced it at sentencing, and that had the [sentencer] been confronted with this . . .
mitigating evidence, there is a reasonable probability that it would have returned with a different
sentence.”) (emphasis added); Flamer v. State, 585 A.2d 736, 756-57 (Del. 1990) (“Indeed, there
is no duty for defense counsel to pursue all lines of investigation about potentially mitigating
evidence.”).
9
  Mayes v. State, 604 A.2d 839, 843 (Del. 1992) (holding that a court may consider factors such
as a defendant’s personal history in sentencing and the Supreme Court will find a sentencing
judge to have abused his discretion only if the sentence was imposed on the basis of
“demonstrably false information” or if the information lacks “a minimal indicia of reliability”).
                                                 4
factors. 10 The sentencing judge’s reasoning was sound, and the court did not abuse

its discretion when it found that counsel was not ineffective.

          NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                                      BY THE COURT:

                                                      /s/ Collins J. Seitz, Jr.
                                                              Justice




10
     Gomez, 2014 WL 8042732, at *9:
        It was clear to the [c]ourt at sentencing that defendant had a hard life and abused
        crack cocaine. The [c]ourt was aware, also, that defendant regretted what he did
        after he sobered up. However, the numerous crimes defendant inflicted on this
        victim were violent and extreme. As this [c]ourt stated at the sentencing, the
        aggravating factors are paramount and persuasive and no mitigating factors
        outweigh them or call for a lesser sentence.
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