       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                      )
                                        )
       v.                               )
                                        )
VINCENT E. HICKS,                       )
                                        )     ID. No. 0812020875
            Defendant.                  )
                                        )
                                        )

                             Decided: May 4, 2015

            Defendant’s Motion for Postconviction Relief is DENIED.
                   Counsel’s Motion to Withdraw is MOOT.


                                      ORDER

Joseph Grubb, Esquire, Deputy Attorney General, Department of Justice, Attorney
for the State.

Vincent E. Hicks, pro se Defendant.

Donald R. Roberts, Esq., 900 Kirkwood Highway, Elsmere, Delaware, 19805.
Attorney for the Defendant.




Scott, J.
             FACTUAL AND PROCEDURAL BACKGROUND

      Defendant Vincent E. Hicks (“Defendant”) was arrested on February 12,

2009. He was indicted by a grand jury on March 16, 2009, for Possession of a

Firearm During the Commission of a Felony, Kidnapping First Degree, Assault

Second Degree, Aggravated Menacing, Possession of a Firearm by a Person

Prohibited, and Conspiracy Second Degree. Defendant was originally represented

by Brian J. Chapman, Esq., and trial was scheduled for September 22, 2009.

However, due to a conflict, Mr. Chapman moved for a continuance. The Trial

Court granted the motion, and appointed new counsel, Peter N. Letang, Esq., to

represent Defendant at trial. The new trial date was scheduled for November 3,

2009, but was continued because the assigned prosecutor was involved in an

unrelated murder trial. Trial ultimately commenced on February 23, 2010.

      On March 3, 2010, the jury returned guilty verdicts on the charges of Assault

Second Degree, Conspiracy Second Degree (2 counts), Aggravated Menacing,

Possession of a Firearm During the Commission of a Felony, and Possession of a

Firearm by a Person Prohibited.      Prior to trial and later before sentencing,

Defendant attempted to appeal the matter to the Delaware Supreme Court, both of

which were dismissed due to lack of jurisdiction. On March 9, 2010, Mr. Letang

filed a Motion to Withdraw as Counsel on the basis of Defendant’s hostility to Mr.




                                        2
Letang during the trial process. The motion was granted and Gregory M. Johnson,

Esq. was appointed to represent Defendant at sentencing.

      Defendant was sentenced on November 15, 2010, and received 11 years at

Level V, followed by probation at Level III.

      Defendant filed a timely appeal to the Delaware Supreme Court, asserting

(1) his right to a speedy trial was violated, (2) the indictment was improperly

amended during trial, (3) his constitutional rights under the Fourth and Fifth

Amendment were violated, and (4) his trial counsel provided ineffective assistance.

On July 21, 2011, the Supreme Court denied Defendant’s claims and affirmed the

conviction.

      On October 10, 2013, Defendant filed this pro se Motion for Postconviction

Relief. Defendant was subsequently assigned counsel, Donald R. Roberts, Esq.

(“Counsel”). Counsel then filed a Motion to Withdraw as Postconviction Counsel

pursuant to Superior Court Criminal Rule 61(e)(1) and (2) on October 31, 2013. In

response to Counsel’s motion to withdraw, Defendant filed supplemental grounds

for his motion for postconviction relief on January 12, 2015.




                      DEFENDANT’S RULE 61 MOTION


                                         3
         Defendant’s motion, and supplemental claims, assert the following grounds

for postconviction relief: (1) Defendant’s constitutional rights under the Fourth and

Fifth Amendment were violated because of his unlawful arrest on December 18,

2008; (2) Defendant’s right to a speedy trial was violated; (3) Defendant’s

indictment was improperly amended during trial; (4) Defendant’s substantive and

procedural due process rights were violated because of the State’s Brady violation

during trial; (5) Defendant was entitled to a Bland jury instruction; (6) Defendant’s

Fifth Amendment right against self-incrimination was violated by the stipulation of

fact signed by the State and trial counsel that Defendant was a person prohibited at

that time of the charged offenses; and (7) several bases for ineffective assistance of

trial counsel. 1

                                STANDARD OF REVIEW

         Rule 61 of the Superior Court Rules of Criminal Procedure (“Rule 61”)

governs motions for postconviction relief. In reviewing motions for postconviction

relief, Delaware law requires the Court to first look at Rule 61’s procedural

requirements before examining the motion on its merits.2 Rule 61(i) sets forth the

possible procedural bars to post-conviction relief: (1) a motion for postconviction

relief cannot be filed more than one year after the judgment of conviction is final;

(2) any ground for relief not asserted in a prior postconviction motion is barred; (3)

1
    Referenced as “Ground(s) __” throughout opinion.
2
    Ayers v. State, 802 A.2d 278, 281 (Del. 2002).
                                                4
any ground for relief not asserted in the proceedings leading to the judgment of

conviction is barred; and (4) any ground for relief that was formerly adjudicated is

barred.3

       A motion exceeds time limitations under Rule 61(i)(1) if it is filed more than

one year after the conviction is finalized or the defendant asserts a newly

recognized, retroactively applied right more than one year after it is first

recognized.4 “A judgment of conviction is final…[i]f the defendant files a direct

appeal or there is an automatic statutory review of a death penalty, when the

Supreme Court issues a mandate or order finally determining the case on direct

review.” 5

       A motion is considered repetitive under Rule 61(i)(2), and therefore barred,

if it asserts any ground for relief “not asserted in a prior postconviction

proceeding.” 6 Repetitive motions are only considered if it is “warranted in the

interest of justice.”7 Under Rule 61(i)(3), grounds for relief “not asserted in the

proceedings leading to the judgment of conviction” are barred as procedural

default unless movant can show “cause for relief” and “prejudice from [the]

violation.”8


3
  Super. Ct. Crim. R. 61(i)(1)-(4).
4
  Super. Ct. Crim. R. 61(i)(1).
5
  Super. Ct. Crim. R. 61(m)(2); Guy v. State, 82 A.3d 710, 715 (Del. 2013).
6
  Super. Ct. Crim. R. 61(i)(2).
7
  Id.
8
  Super. Ct. Crim. R. 61(i)(3).
                                               5
       Despite these requirements, a defendant may avoid the first three procedural

imperatives, pursuant to Rule 61(i)(5), if the claim is jurisdictional or presents “a

colorable claim that there was a miscarriage of justice because of a constitutional

violation that undermined the fundamental legality, reliability, integrity or fairness

of the proceedings leading to the judgment of conviction.” 9                   However, this

fundamental fairness exception “is a narrow one and has been applied only in

limited circumstances, such as when the right relied upon has been recognized for

the first time after the direct appeal.”10 “While [a] ‘colorable claim’ does not

necessarily require a conclusive showing of trial error, mere ‘speculation’ that a

different result might have obtained certainly does not satisfy the requirement.” 11

       Grounds for relief formerly adjudicated in the case, including “proceedings

leading to the judgment of conviction, in an appeal, in a postconviction proceeding,

or in a federal habeas corpus hearing,” are barred under Rule 61(i)(4).12 Former

adjudications are only reconsidered if “warranted in the interest of justice.” 13

                                       DISCUSSION




9
  Super. Ct. Crim. R. 61(i)(5).
10
   Younger v. State, 580 A.2d 552, 555 (Del. 1990).
11
    State v. Getz, 1994 WL 465543, *11 (Del. Super. Jul. 15, 1994) (finding no exception under
Rule 61(i)(5) to the procedural bars of Rule 61).
12
   Super. Ct. Crim. R. 61(i)(4).
13
   Id.
                                               6
         Defendant has failed to overcome the procedural requirements of Superior

Court Criminal Rule 61(i).14 The entire motion is barred for untimeliness under

Rule 61(i)(1) because the judgment of conviction became final on the date of the

Supreme Court’s mandate, July 21, 2011. Defendant had until July 21, 2012 to

timely file this motion; however, Defendant did not file this motion until October

10, 2013. Nor has Defendant asserted a retroactively applicable, newly recognized

right.    Additionally, Defendant’s Grounds 2-3 are barred under Rule 61(i)(4)

because those claims have been formerly adjudicated, and Grounds 4-6 are barred

under Rule 61(i)(3) because they are grounds for relief not asserted in the

proceedings leading to the judgment of conviction. Moreover, Defendant has not

asserted “a colorable claim that there was a miscarriage of justice” to overcome

these two procedural bars. 15           For these reasons, Defendant’s motion for

postconviction relief is procedurally barred under Super. Ct. Crim. Rule 61(i).

However, the Court will now more fully address each ground individually.

     I. Ground One

         Defendant’s first ground for relief on this motion relates to an alleged due

process violation under the Fourth and Fifth Amendment. Defendant argues that

he was subjected to a warrantless arrested by Wilmington Police Department on

14
    Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991) (stating the court must first apply the
procedural bar under Rule 61 before considering the merit of any claim); Younger, 580 A.2d at
554.
15
   See Rule 61(i)(5).
                                               7
December 18, 2008, for a violation of probation. While there is nothing in the

record before the Court to confirm when Defendant was arrested, the Court will

infer the relative accuracy of Defendant’s asserted date from the Delaware

Supreme Court’s decision on Defendant’s appeal in this matter:

          Hicks was arrested on the relevant charges on February 12, 2009, at
          the Howard R. Young Correctional Facility, where he was being held
          on a violation of probation warrant. 16

Regardless of the date, it is clear to the Court based on the record that any arrest

for a violation of probation, and resulting charge(s), were unrelated to Defendant’s

convictions at issue on this motion. Therefore, this claim is not properly brought

on this motion, and any challenge to that December 2008 arrest or subsequent

violation of Defendant’s due process rights should have been timely filed separate

from this matter. Accordingly, Ground 1 of Defendant’s motion for postconviction

relief fails.

      II. Grounds Two and Three

          Defendant’s second and third grounds for this motion are procedurally

barred under Rule 61(i)(4), as claims formerly adjudicated.17 Ground 2 asserts that

Defendant’s right to a speedy trial was violated. This claim was adjudicated by the

Delaware Supreme Court on Defendant’s appeal of his convictions in this case.

On this claim, the Supreme Court held that

16
     Hicks v. State, No. 741, 2010, ¶ 8 (Del. Jul. 21, 2011).
17
     See Id.
                                                    8
          [b]oth continuances were requested and granted for good cause. We
          do not find a delay of one year under the circumstances presented here
          to be presumptively prejudicial. As for the speedy trial factors, the
          record does not reflect that Hicks, either pro se or through counsel,
          ever asserted his right to a speedy trial in the Superior Court. Nor
          does Hicks identify any prejudice suffered by him as the result of any
          alleged violation of his right to a speedy trial. Weighing all of the
          above, we find Hicks’s claim of a speedy trial violation to be without
          merit. 18

Therefore, the Court finds that Ground 2 on this motion has already been

adjudicated by the Supreme Court on Defendant’s appeal of these convictions.

          Ground 3 asserts that Defendant’s rights were violated because the

indictment against him was improperly amended during trial. This claim was also

adjudicated by the Supreme Court on Defendant’s appeal of his convictions in this

case. On this claim, the Supreme Court held that

          Hicks’s claims of an improperly amended indictment and violations of
          his Fourth and Fifth Amendment rights are asserted without any
          record support. Nor does our review of the record in this case reveal a
          factual basis for any such claims. As such, we conclude that they, too,
          are without merit. 19

Defendant has offered no additional record support for this claim than was before

the Supreme Court. Thus, the Court finds Ground 3 on this motion has already

been adjudicated by the Supreme Court on Defendant’s appeal of these

convictions.



18
     Id. at ¶¶ 8-9.
19
     Id. at ¶ 10.
                                            9
         The “colorable claim” exception to Rule 61(i)’s procedural bars applies only

to the first three procedural bars; it is not applicable to claims barred under Rule

61(i)(4) as formerly adjudicated. Therefore, Grounds 2 and 3 on this motion are

necessarily procedurally barred under Rule 61(i)(4). Furthermore, the Court finds

that, for the reasons stated by the Supreme Court, these two grounds are also

without merit. 20       Accordingly, Grounds 2 and 3 on Defendant’s motion for

postconviction relief fail.




      III. Grounds Four, Five and Six

         In Ground 4 on this motion, Defendant asserts that his substantive and

procedural due process rights were violated because of the State’s Brady violation

during trial.       Ground 5 asserts that Defendant was entitled to a Bland jury

instruction. Finally, in Ground 6 Defendant asserts that his Fifth Amendment right

against self-incrimination was violated by the stipulation of fact signed by the State

and trial counsel that Defendant was a person prohibited at that time of the charged

offenses. However, each of these claims should have been objected to at trial and

raised on Defendant’s appeal of his convictions to the Supreme Court. In other

words, these grounds are not properly raised for the first time in this motion.


20
     See Hicks, No. 741, 2010.
                                          10
Therefore, the Court finds that these grounds are procedurally barred under Rule

61(i)(3). Accordingly, these grounds for Defendant’s motion for postconviction

relief fail.

       Assuming arguendo that these claims are not procedurally barred, they are

nonetheless meritless. However, it appears that Defendant asserts Grounds 4-6

individually and as bases for his ineffective assistance of counsel claim. For that

reason, the Court will reserve any discussion on the merits of these claims for its

analysis of Defendant’s ineffective assistance of counsel claim.



     IV. Ground Seven

       Defendant’s ineffective assistance of counsel claim is his one asserted

ground for postconviction relief that is barred only for timeliness. 21 An ineffective

assistance of counsel claim that alleges a constitutional basis for postconviction

relief may overcome the procedural bars of Rule 61(i)(1)-(3) if the defendant

asserts a colorable claim. 22 However, Defendant has not asserted a colorable claim

of ineffective assistance of trial counsel and is therefore procedurally barred. Even


21
   Though Defendant’s ineffective assistance claim was previously raised on his appeal to the
Supreme Court, Rule 61(i)(4) is satisfied because the Supreme Court declined to decide this
claim. Thus, Defendant’s claim has not been previously adjudicated.
22
   See Rule 61(i)(5); State v. MacDonald, 2007 WL 1378332, *4, n.17 (Del. Super. May 9,
2007). See also State v. St. Louis, 2004 WL 2153645, *3 (Del. Super. Sept. 22, 2004) (“Since
the Supreme Court generally will not hear a claim for ineffective assistance of counsel on direct
appeal, the procedural default rules do not bar those assertions of errors premised on ineffective
assistance of counsel.”).
                                                11
assuming arguendo that Defendant’s motion is not procedurally barred, it

nonetheless fails on the merits.

       Claims of ineffective assistance of counsel at trial and on direct appeal are

appropriate in motions for postconviction relief. 23 Ineffective assistance of counsel

claims are evaluated under the two-pronged test set forth in Strickland v.

Washington. 24 To succeed on a claim under Strickland, the petitioner must show:

(1) that “counsel’s representation fell below an objective standard of

reasonableness;” and (2) that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.”25

       The test articulated in Strickland creates a strong presumption that counsel’s

representation was professionally reasonable. 26 The “benchmark for judging any

claim of ineffectiveness [is to] be whether counsel’s conduct so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.” 27 Therefore, a motion for postconviction relief




23
   Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
24
   466 U.S. 668 (1984). See also Ayers, 802 A.2d at 281 (“A petitioner’s claim that he received
ineffective assistance of counsel is measured under the test articulated by the United States
Supreme Court in Strickland v. Washington.”).
25
   Strickland, 466 U.S. at 688, 694. See also Flamer, 585 A.2d at 753.
26
   Flamer, 585 A.2d at 753.
27
   Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 688).
                                               12
“must make concrete allegations of actual prejudice, and substantiate them,” or risk

being dismissed.28

         Turning to the merits of Defendant’s claim, Defendant makes the conclusory

argument that his trial counsel was ineffective during the entire proceeding, but is

unable to articulate how trial counsel’s performance was deficient.               In his

supplemental grounds for this motion, Defendant seems to raise Grounds 4-6 in

conjunction with this claim, as well as individually.                Even considered in

conjunction with his ineffective assistance of counsel claim, the Court finds that

Grounds 4-6 on this motion also fail as bases for this claim.

         Defendant asserts Grounds 4-6, whether individually and in conjunction

with this claim, without any record support.               Instead, Defendant makes only

conclusory allegations of prosecutorial misconduct, evidence tampering, and

collusion between the State and trial counsel. However, Defendant offers no

concrete evidence in support of this claim. He also makes the conclusory assertion

that he was entitled to a Bland jury instruction because of the co-defendants that

testified at his trial, yet Defendant offers no way in which he was prejudiced by the

absence of the instruction. Finally, Defendant’s assertion that the submission to

the jury of the stipulation that Defendant was a person prohibited at the time of the

offenses was a violation of his Fifth Amendment right against self-incrimination is


28
     Couch v. State, 2008 WL 390754, *1 (Del. Feb. 14, 2008).
                                                13
misplaced. Such a stipulation of fact is not uncommon, in order to “sanitize” the

indictment by removing reference to the reasons for which the defendant is a

person prohibited from possessing a deadly weapon.29 In other words, stipulating

that the defendant is a person prohibited is a tactical decision by trial counsel for

the purpose of removing from the indictment the details of the defendant’s prior

conviction(s).30

        The Court’s review of the record in this case does not reveal a factual basis

for any of these claims. Nor has Defendant articulated any way in which he was

prejudiced by these claims, beyond a mere conclusory assertion of prejudice.

Moreover, the Court finds that Defendant is unable to establish a claim for

ineffective assistance of counsel under Strickland. Defendant has failed to show

that:    (1) trial counsel’s representation fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for trial counsel’s

unprofessional errors, the result of the proceeding would have been different. For




29
   See Johnson v. State, 983 A.2d 904, 923 (Del. 2009) (Court holding that defense counsel made
a tactical decision to stipulate that the defendant was prohibited from possessing a firearm. The
defendant was a person prohibited as result of his 2003 conviction for Rape in the Fourth
Degree. By stipulation, the defendant avoided the jury learning about the nature of his prior
conviction. The stipulation did not provide the reason for Johnson's prohibited status; instead, the
stipulation simply stated that the parties agreed Johnson “was prohibited from owning or
possession a firearm.”); Smith v. State, 882 A.2d 762 (Del. 2005) (“Here, the State redacted the
indictment to eliminate any prejudice to Smith, in exchange for Smith's stipulation that he was a
person prohibited by virtue of his September 2003 conviction.”).
30
   Id.
                                                14
these reasons, the Court finds that Defendant has failed to establish any colorable

claim for relief under his ineffective assistance of counsel argument.

                                  CONCLUSION

      Accordingly, Defendant’s Motion for Postconviction Relief is DENIED.

The motion to withdraw is moot.

      IT IS SO ORDERED.


                                                    /s/Calvin L. Scott
                                                  The Honorable Calvin L. Scott Jr.




                                         15
