IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1502008739

DERRICK CARROLL,

<

Defendant.

Submitted: February 15, 2018
Decided: March 6, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION

RELIEF SHOULD BE DENIED AND THE MOTION
FOR APPOINTMENT OF COUNSEL SHOULD BE DENIED

Barzilai K. AXelrod, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Derrick Carroll, J ames T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

MAYER, Cornmissioner

Defendant, Derrick Carroll, Was convicted of Possession of a Firearm by a
Person Prohibited (“PFBPP”) and Possession of Ammunition by a Person Prohibited
(“PABPP”). The charges stem from searches of Defendant’s hotel room at the
Rodeway Inn on February 12, 2015 and February 13, 2015.l During the second
search, officers located a revolver in a suitcase (that Was later identified as belonging
to Defendant), and a black bag containing ammunition (that Was on the bed Which
Was confirmed by Defendant to be the bed he had been using). Defendant vigorously
contested the charges at trial and on appeal. The trial court denied a Motion for
Judgment of Acquittal,2 the jury entered a verdict of guilty on these charges,3 and
the Supreme Court affirmed the conviction.4 Defendant has now presented a pro se
l\/Iotion for Postconviction Relief and a Motion for Appointment of Counsel. After
reviewing the record before the Court and in consideration of the arguments

presented by Defendant, l believe that no further briefing is necessary.

 

' The facts set forth herein Were taken from the decision of the Supreme Court of
Delaware, Case No. 198, 2016, Filing ID 60390302, dated March 27, 2017, and
also found at D.l. # 43 in this case.

2 D.I. # 20.
3 Id.

4 D.I. # 43. This Court also denied Defendant’s Petition for a Writ of Habeas
Corpus. See D.l. # 28.

Defendant’s Motion for Postconviction Relief

Before considering the merits of the claims, the Court must first determine
Whether there are any procedural bars to the motion,5 Defendant’s first motion,
having been filed Within one year of the Supreme Court’s Mandate on direct appeal,
is timely.6 However, pursuant to Super. Ct. Crim. R. 61(i)(3) and (4), any ground
for relief that Was not previously raised is deemed Waived, and any claims that Were
formerly adjudicated, Whether in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or in a federal habeas
corpus proceeding, are thereafter barred. Ineffective assistance of counsel claims
cannot be raised at any earlier stage in the proceedings and are properly presented
by Way of a motion for postconviction relief.7

Defendant has asserted four bases for relief including: (1) Police officers
violated his Fourth Amendment rights When they requested hotel registries Without
a Warrant or subpoena; (2) trial counsel failed to move for a suppression hearing; (3)

video surveillance of the hotel “RodeWay lnn” Was not produced; and (4) violation

 

5 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
6 Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(i)(1).

7 Whl`ttle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-
Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).

of a speedy trial. Each of the claims presented are Wholly Without merit and/or are
procedurally barred.

Defendant’s claim regarding the video surveillance can be easily dismissed.
The record clearly demonstrates that on June 30, 2015, as part of an ongoing
discovery production, the State produced 1 CD containing the “Rodeway Inn
Surveillance Video.”8 Therefore, the video surveillance Was in fact produced to the
defense, and if not, Defendant’s argument Was Waived When not raised in the trial
proceedings

With respect to Defendant’s claim that his right to a speedy trial Was violated,
this claim Was already adjudicated and/or Was Waived. First, the record reflects that
the case Was accepted by the Superior Court on March 18, 2015 after Defendant Was
arrested on March 10, 2015.9 Defendant filed a Motion to Dismiss on May 12,
2015.‘0 That motion Was passed as the case Was to be presented to the Grand Jury
around that time. On June 22, 2015, the Indictment Was issued.ll The Motion to

Dismiss Was then ruled “moot” in light of the lndictment.12 Defendant did not

 

8 See D.I. # 7.
9 D.l. # l.
10 D.l. # 3.
ll D.l. # 6.

'2 D.I. # 4.

challenge the ruling either through the trial court process or on appeal. As a result,
this claim was not only already adjudicated and is therefore barred by Super. Ct.
Crim. R. 61(i)(4) but this claim was also waived for having not been presented on
appeal

Defendant’s remaining two arguments appear intertwined Although
Defendant provides no explanation for his claim that trial counsel should have
pursued a suppression hearing, presumably this claim is tied to his first argument
that his rights were violated when the hotel registry was offered into evidence
without a warrant or subpoena.

ln order to prevail on an ineffective assistance of counsel claim, a defendant
must show that his counsel’s representation fell below an objective standard of
reasonableness and the deficiencies in counsel’s representation caused the defendant
actual prejudice.'3 When reviewing such a claim, the Court must analyze counsel’s
conduct based upon all of the facts of the case and avoid peering through the lens of
hindsight14 Defendant must show that any alleged errors were so serious that his

counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth

 

'3 Stricklana' v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

'4 State v. Wrigh¢, 653 A.2d 288, 295 (Del. super., 1994).

Amendment.15 “A defense attorney may not be faulted for a reasonable
miscalculation or lack of foresight or for failing to prepare for what appear to be
remote possibilities.”'6 Great weight and deference are given to tactical decisions
by the trial attorney and counsel cannot be deemed ineffective for failing to pursue
motions that lack merit.17 Further, in order to prevail on an ineffective assistance of
counsel claim, a defendant must show that but for the errors, there is a reasonable
probability that the outcome of the proceedings would have been different.18
Defendant must overcome a strong presumption that counsel’s conduct was
reasonably professional under the circumstances19

A defendant may only assert a violation of his Fourth Amendment rights if he
has standing to protest the evidence presented and only if he can claim a possessory

or proprietary interest in the area searched.20 “A person who is aggrieved by an

 

15 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).

'6 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012) (holding
defense counsel provided active and capable advocacy when evidence against
Defendant was overwhelming) (citing Harrl'ngton v. Richter, 131 S.Ct. 770, 787-
792 (2011)).

17 State v. Ml`ller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).

'8 Strickland, 466 U.S. at 687-88, 694; Hl'tchens v. State, 757 A.2d 1278 (Del. 2000).
19 State v. Wright, 653 A.2d 288, 293-94 (citations omitted).

20 Thomas v. State, 467 A.2d 954, 957-958 (Del. 1983).

[alleged] illegal search and seizure only through the introduction of damaging
evidence secured by a search of a third person’s premises or property has not had his
Fourth Amendment rights infringed.”21 ln the present case, Defendant is claiming
the police needed a warrant or subpoena to obtain the hotel registry. However, the
hotel registry was property of the Rodeway lnn, not the Defendant. The State
produced the General Manager of the Rodeway Inn who testified at the trial and
appears to have cooperated with the prosecution. ln addition, on July 6, 2016, the
State provided the defense with a “Business Records Certification for the Rodeway
lnn”.22 The records were offered into evidence without objection from the defense
and the General Manager testified that the document presented was the hotel’s “in-
house folio” kept as part of the registry duties.23 He also testified to the arrival and
departure dates of Defendant and that he interacted with Defendant several times in
person as he came to pay for the room.24 ln light of this, l cannot ascertain any legal

basis for Defendant to either object to the State’s obtaining of the registry or to the

introduction of the registry.

 

21 Thomas v. State, 467 A.2d at 958, quoting Raskas v. Illz`nois, 439 U.S. 128,
133-34 (1978).

22 D.l. # 8.
23 See October 27, 2015 Trial Transcript at pgs. 90- 102.

24 ]a’. at pgs. 92-93.

Mere allegations of ineffectiveness or conclusory statements will not suffice;
instead, a defendant must make and substantiate concrete allegations of actual
prejudice.25 Furthermore, Trial Counsel will not be faulted for failing to file a
suppression motion if there is no legal or factual basis to do so.26 ln this case, the
General Manager testified to knowing Defendant, having interacted with him several
times and his arrival and departure. During the first search, Defendant answered the
door and gave consent to the search. Therefore, l see no prejudice to Defendant in
the presentation of the registry and Defendant has not established ineffective
assistance of counsel as to these issues.

ln light of the analysis of Defendant’s claims, it is my conclusion that all of
the above claims are either barred or are unsupported by the record. Finally,
Defendant has not argued that any of the exceptions to the bars to relief apply to his

case to render the conviction invalid.27

 

25 S¢rickland, 466 U.s. 61687-88, 694; Monme v. s¢a¢e, 2015 wL 1407856,61 *5
(Del. Mar. 25, 2015) (Citing Daws@n v. sze, 673 A.2d 1186, 1196 (Del. 1996)).

26 See State v. Mz'ller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).

27 See Super. Ct. Crim. R. 61(i)(5) and (d)(2)(i)-(ii).

Motion for Appointment of Counsel

Defendant’s Motion for Appointment of Counsel cites Super. Ct. Crim. R.
61 (e)(2) as the basis for the relief requested However, Defendant’s reference to this
subsection of the Rule is incorrect. Subpart (e)(2) provides that the court shall
appoint counsel for a first timely postconviction motion if the judgment of
conviction relates to a crime designated as a Class A, B, or C felony under 11 D_el.
Q. §4205(b). Despite citing this language, Defendant ignores the fact that he was
convicted of two Felony D charges and therefore does not fall within the purview of
this subpart.

Rather, pursuant to Superior Court Criminal Rule 61(e)(4), counsel may be
appointed in the present case if the motion sets forth a substantial claim that the
movant received ineffective assistance of counsel, as well as a substantial claim that
the movant is in custody in violation of his constitutional rights, and there are
specific exceptional circumstances warranting the appointment of counsel. As set
forth above, Defendant’s arguments are wholly without merit and a thorough review
of the record in this matter, both before the trial court and the Supreme Court,
demonstrates Defendant’s claim of ineffective assistance of counsel is without
support nor is he held in violation of his rights. l have not identified any “exceptional
circumstances” warranting the appointment of counsel, and as such, Defendant’s

Motion for Appointment of Counsel should be denied.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED and the Motion for Appointment of Counsel should be DENIED.

IT IS SO RECOMMENDED.

      

' a arine L. Mayer
oc: Prothonotary
cc: Barzilai K. Axelrod, Esquire

Derrick Carroll

