IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ID No. 1708017970
) In and for Kent County
V. )
) RK17-08-0085-01
CHRISTOPHER SUDLER, ) DDeal+ AF (F)
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State
of Delaware.

Christopher Sudler, Pro se.

FREUD, Commissioner
October 18, 2019

The defendant, Christopher Sudler (“Sudler’”), pled guilty on April 27, 2018 on
the day his matter was set for a suppression hearing and trial to one count of Drug
Dealing with an Aggravating Factor, 16 Del. C. § 4753(2). He also faced one count
of Possession of a Firearm During the Commission of a F elony, one count of
Possession of Ammunition by a Person Prohibited, one count of Possession of a
Deadly Weapon and Illegal Drug, one count of Possession of a Firearm by a Person

Prohibited, one count of Gang Participation, one count of Resisting Arrest, one count
State v. Sudler
I.D. No. 1708017970
October 18, 2019

of Possession of Drug Paraphernalia and one count of Possession of Marijuana which
were nolle prossed by the State in exchange for Sudler’s plea. As part of the plea deal
the State agreed to drop all of Sudler’s pending Violation of Probation allegations in
Kent and/or New Castle County. The State and Defense recommended a sentence of
fifteen years incarceration, suspended after serving six years, followed by probation.
The Court agreed with the sentence recommendation and sentenced Sudler
accordingly. Had Sudler gone to trial and been found guilty as charged he faced
substantial time in prison. Sudler did not appeal his conviction or sentence to the
State Supreme Court. Instead, Sudler’s counsel filed a Motion for Correction of
Sentence on May 14, 2018 which this Court granted on June 11, 2018 and reset the
effective date of the sentence.’ Next, Sudler filed a pro se Motion for Reduction of
Sentence on January 31, 2019 which the Court denied as untimely on February 7,
2019.’ Sudler then filed the pending Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61 on March 6, 2019, in which he alleges, in part,
ineffective assistance of counsel.
FACTS

According to the Affidavit of Probable Cause and the transcript of the
Preliminary Hearing, the police suspected Sudler of drug dealing and accordingly set
up surveillance of the Hardees parking lot, 519 S. Bay Road, Dover, Delaware

awaiting Sudler’s arrival. The police then attempted to apprehend Sudler and he

 

' State v. Sudler, Del. Super., 1.D. No. 1708017970, Clark, J. June 11, 2018) )(ORDER).
° State v. Sudler, Del. Super., 1.D. No. 1708017970, Clark, J. (Feb. 7, 2019) (ORDER).

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I.D. No. 1708017970
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resisted arrest forcibly and had to ultimately be pulled from his vehicle. A loaded
hand gun and various amounts of drugs packaged for sale were located in the vehicle.
Sudler was the sole occupant of the car. After his arrest Defense Counsel filed a
Motion to Suppress evidence which was scheduled on the morning of Sudler’s trial.
The motion did not go forward as Sudler chose to plead guilty to one count of Drug
Dealing in exchange for the State dropping the remaining charges and the linked
violation of probation allegations. Sudler was also facing substantial time in prison
had he been found guilty of violating his probation as a result of the new charges.
SUDLER’S CONTENTIONS

Next, Sudler filed the instant Motion for Postconviction Relief pursuant to

Superior Court Rule 61. In his motion, he raises the following grounds for relief:

Ground one: [legal Search and Seizure.
The Dover Police and State police had an
anonymous tip that the Defendants brother
Anthony Sudler was going to respond to
Hardees restaurant to deliver a quantity of
heroin. When police approached the Hardees
parking lot it is alleged that the defendant put
his vehicle in reverse to exit parking lot.
There is no dashboard cam footage to
corroborate any of the officers actions. There
was no probable cause to warrant this illegal
stop, detention, or seizure. The officers
arrested Mr. Sudler without probable cause
nor did they have reasonable suspicion that
the defendant was armed and dangerous. That
the defendant had committed, was
committing, or was about to commit a crime.
State v. Sudler
I.D. No. 1708017970
October 18, 2019

An anonymous tip or information is not a
factual foundation that warrants probable
cause.

Ground two: Suppression of Favorable Evidence.

My lawyer said suppression hearing is good
for us because they were looking for my
brother Anthony Sudler, didn’t have probable
cause to arrest me. I did nothing wrong by
sitting in the Hardees parking lot. I never sold
a drug to anyone. There was never an
exchange or an agreed upon prize (sic). I was
suppose (sic) to meet up with two girls to
have sex with. I was only out past curfew
because I just got off of work and if that’s the
case I did most of my back-up time already.
I been incarcerated for 19 months.

Ground three: Effective assistance of counsel.

My lawyer kept telling me different things,
first told me that 18 months was on the table.
I said I would take it he told me no because
we could get time served or win suppression
hearing. Then he said 3 years but said we
weren’t taking it, he’s going for time served.
My court dates got postponed multiple times
at least 7. He was not communicating with
me and the last court date he said 6 years and
said if I didn’t take it the prosecutor would go
up to 10 years. He never worked for me to
get the best possible Plea. It’s my first time
doing time so I was scared.

The grounds listed above represent all of Sudler’s claims. He did not submit a

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I.D. No. 1708017970
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memorandum in support of the motion.

DISCUSSION

Under Delaware law, the Court must first determine whether Sudler has met the
procedural requirements of Superior Court Criminal Rule 61(I) before it may consider
the merits of the postconviction relief claims.’ Under Rule 61, postconviction claims
for relief must be brought within one year of the conviction becoming final.* Sudler’s
motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to
the motion. As this is Sudler’s initial motion for postconviction relief, the bar of Rule
61(i)(2), which prevents consideration of any claim not previously asserted in a
postconviction motion, does not apply either.

Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for relief
from the procedural default; and (2) prejudice from a violation of the movant's rights.”
The bars to relief are inapplicable to a jurisdictional challenge or “to a claim that
satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d)
of Rule 61.° To meet the requirements of Rule 61(d)(2) a defendant must plead with

particularity that new evidence exists that creates a strong inference that the movant

 

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

fe

Super. Ct. Crim. R. 61(i)(1).

> Super. Ct. Crim. R. 61(i)(3).

ON

Super. Ct. Crim. R. 61(4)(5).
State v. Sudler
I.D. No. 1708017970
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is actually innocent in fact of the acts underlying the charges of which he was
convicted’ or that he pleads with particularity a claim that anew rule of constitutional
law, made retroactive to cases on collateral review by the United State or Delaware
Supreme courts, applies to the defendant’s case rendering the conviction invalid.®
Sudler’s motion pleads neither requirement of Rule 61(d)(2).

None of Sudler’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. Only Sudler’s third claim is based on ineffective assistance of
counsel; therefore, he has alleged cause for his failure to have raised it earlier.
Sudler’s first and second claims which are essentially the same allegation regard
suppression of evidence were not raised on appeal. Furthermore, Sudler specifically
acknowledged during his plea that he was waiving his rights to contest the evidence
against him.” Finally as the State noted in its response, Sudler was on probation at
the time of his arrest and was found out after his curfew and identified by his
probation officer, For these reasons alone there was a legitimate reason to have
attempted to arrest Sudler. Clearly, Sudler’s first and second grounds for relief are
procedurally barred by Rule 61(i)(3) and are meritless.

At this point, Rule 61(i)(3) does not bar relief as to Sudler’s third ground for

relief provided he demonstrates that his counsel was ineffective and that he was

 

” Super. Ct. Crim. R. 61(d)(2)(i).
* Super. Ct. Crim. R. 61(d)(2)(ii).
’ State v. Sudler, Del. Super., LD. No. 1708017970, (April 27, 2018), Tr. at 3, 5-7.

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prejudiced by counsel’s actions. To prevail on his claim of ineffective assistance of
counsel, Sudler must meet the two-prong test of Strickland v. Washington.'° In the
context of a guilty plea challenge, Strickland requires a defendant show: (1) 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 acquittal.'' 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.'* In 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.'’ 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.'* This standard

 

© 466 U.S. 668 (1984).
"Id. at 687.

" Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. 1988))(citations omitted).

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

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

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I.D. No. 1708017970
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is highly demanding.'’ Strickland mandates that, when viewing counsel's
representation, this Court must endeavor to “eliminate the distorting effects of
hindsight.” '®

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

Sudler was facing the possibility of substantial time in prison had he been
convicted on the charges and subsequently convicted for violating his probation as
well. The sentence and plea were very reasonable under all the circumstances,
especially in light of the overwhelming evidence against him. Prior to the entry of
the plea, Sudler and his attorney discussed the case. The plea bargain was clearly
advantageous to Sudler. Counsel’s representation was certainly well within the range
required by Strickland. Additionally, when Sudler entered his guilty plea, he stated
he was satisfied with defense counsel’s performance. He also admitted his guilt

twice.'’He is bound by his statement unless he presents clear and convincing evidence

 

'° Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S.
365, 383 (1986)).

‘© Strickland, 466 U.S. at 689.
'7 State v. Sudler, Del. Super., 1.D. No. 1708017970, (April 27, 2018), Tr. at 6, 8.

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I.D. No. 1708017970
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* Consequently, Sudler has failed to establish that his counsel’s

to the contrary.’
representation was ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Sudler was
somehow deficient, Sudler must satisfy the second prong of the Strickland test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.'” In an attempt to show prejudice, Sudler simply asserts that his counsel
was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, I find Sudler’s third ground for relief
meritless.

To the extent that Sudler 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.” At the
guilty-plea hearing, the Court asked Sudler whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Sudler if he understood he would waive his

constitutional rights if he pled guilty including the right to suppress evidence; if he

 

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

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

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

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I.D. No. 1708017970
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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 Sudler ifhe had discussed the guilty plea and
its consequences fully with his attorney. The Court asked Sudler if he was entering
into the plea because he was guilty of the charge. The Court also asked Sudler if he
was satisfied with this counsel’s representation. Sudler answered each of these
questions affirmatively.”!

Furthermore, prior to entering his guilty plea, Sudler signed a Guilty Plea Form
and Plea Agreement in his own handwriting. Sudler’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. Sudler is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.” I
confidently find that Sudler entered his guilty plea knowingly and voluntarily and that
Sudler’s grounds for relief are completely meritless.

CONCLUSION

I find that Sudler’s counsel represented him in a competent and effective
manner and that Sudler has failed to demonstrate any prejudice stemming from the:
representation. I also find that Sudler’s guilty plea was entered knowingly and

voluntarily. I recommend that the Court deny Sudler’s motion for postconviction

 

*! State v. Sudler, Del. Super., ID No. 1708017970 (April 27, 2019) Tr. at 4-11.
2 Sommerville 703 A.2d at 632.

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relief as procedurally barred and completely meritless pursuant to Superior Court

Criminal Rule 61(i)(3) and (4).
Andrea M. Freud

Commissioner

AMEF/dsc

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