IN THE SUPREl\/[E COURT OF THE STATE OF DELAWARE

NATHAN MCNE[L, §
§
Defendant Below, § No. 696, 2015
Appellant, §
§ Court Below_Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. [D No. 1302010193
§
Plaintiff Below, §
Appellee. §

Submitted: July 15, 2016
Decided: September 20, 2016

Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
0 R D E R

This 20th day of September 2016, upon consideration of the parties’ briefs and
the record beloW, it appears to the Court that:

(l) The appellant, Nathan McNeil, pled guilty to Murder in the Second
Degree, as a lesser included offense of Murder in the First Degree, and Possession
of a Firearm During the Commission of a Felony (“PFDCF”). McNeil appeals the
Superior Court’s denial of his first motion for postconviction relief under Superior
Court Criminal Rule 61 (“Rule 61”). We flnd no merit to McNeil’s appeal and
affirm the Superior Court’s judgment

(2) The record reflects that, in April 2013, McNeil Was charged by

indictment With Murder in the First Degree, Possession of a Firearm or Firearm

Ammunition by a Person Prohibited, Assault in the Second Degree, five counts of
Reckless Endangering in the First Degree, and seven counts ofPFDCF. The charges
arose from a drive-by shooting on February l, 2013.

(3) On March 18, 2014, after five days of trial, McNeil pled guilty to
Murder in the Second Degree, as a lesser included offense of Murder in the First
Degree, and PFDCF. As part of the plea agreement, the State agreed to enter a nolle
prosequi on the other charges in the indictment, to recommend non-suspended Level
V time of twenty-five years, and to enter a nolle prosequi on a pending charge
against McNeil’s wife for Hindering Prosecution. McNeil was sentenced as follows:
(i) for Murder in the Second Degree, thirty years of Level V incarceration, suspended
after twenty years for decreasing levels of supervision; and (ii) for PFDCF, five years
of Level V incarceration. McNeil did not appeal the Superior Court’s judgment.

(4) On October 8, 2014, McNeil filed his first motion for postconviction
relief under Superior Court Criminal Rule 6l. In this motion, McNeil argued: (i) his
attorneys were ineffective because they failed to file a motion to suppress the
ballistic evidence; (ii) his attorneys were ineffective because they allowed McNeil
to plead guilty to Murder in the Second Degree instead of Manslaughter; (iii) his
attorneys were ineffective because they allowed him to plead guilty to Murder in the
Second Degree and PFDCF; (iv) his attorneys were ineffective because the plea

agreement was greater than the parties’ verbal agreement; and (v) the Superior Court

abused its discretion in sentencing him to more than twenty years of Level V
incarceration as he was promised. McNeil also submitted an affidavit describing his
discussions with his attorneys about the State’s offer to dismiss a Hindering
Prosecution charge against his wife.

(5) After the postconviction motion was assigned to a Superior Court
commissioner, McNeil sought appointment of counsel, which the Commissioner
denied, and added a claim that his guilty plea was involuntary due to prosecutorial
misconduct and ineffective assistance of counsel. McNeil’s trial counsel submitted
affidavits in response to McNeil’s allegations. The State responded to the motion.
McNeil responded to the affidavits and the State’s opposition to his motion,

(6) ln a report and recommendation dated August 24, 2015, the
Commissioner recommended denial of McNeil’s motion for postconviction relief.
McNeil filed objections to the report. McNeil also filed a motion to amend his
postconviction motion, which the Superior Court denied. In an order dated
November 23, 2015, the Superior Court adopted the report and recommendation of
the Commissioner and denied McNeil’s motion for postconviction relief. This
appeal followed. On appeal, the Superior Court denied McNeil’s motion for
transcripts at State expense.

(7) On appeal, McNeil argues that the Superior Court erred in denying his

motion for postconviction relief because he was coerced into pleading guilty by the

arrest of his wife for Hindering Prosecution without probable cause and his
attorneys’ ineffective assistance in failing to investigate his wife’s arrest. McNeil
also argues that the Superior Court erred in denying his motion for transcripts at
State expense. McNeil does not raise any of the other arguments he made in the
Superior Court proceedings and has therefore waived consideration of those claims.1

(8) This Court reviews the Superior Court’s denial of postconviction relief
for abuse of discretion and questions of law de novo.2 The Court must consider the
procedural requirements of Rule 61 before addressing any substantive issues.3
Because McNeil did not file a motion to withdraw his guilty plea or a direct appeal,
his claim that he was coerced into pleading guilty by the State’s arrest of his wife
without probable cause is subject to Rule 6l(i)(3). Rule 6l(i)(3) provides that “[a]ny
ground for relief that was not asserted in the proceedings leading to the judgment of
conviction. . .is thereafter barred, unless the movant shows. ..[c]ause for relief from

the procedural default and. . . [p]rejudice from violation of the movant’s rights.”4 To

 

1 Supr. Ct. R. 14(b)(vi)(A)(3) (“The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal.”);
Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (holding failure to raise a legal issue in the text
of the opening brief generally constitutes a waiver of that claim on appeal).

2 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

3 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

4 Super. Ct. Crim. R. 6l(i)(3). A movant may also overcome the Rule 61(i)(3) procedural bar by
pleading a claim that the Superior Court lacked jurisdiction, there is new evidence creating a strong
inference that the movant is actually innocent, or a new rule of retroactive, constitutional law
renders the conviction invalid. Superior Ct. Crim. R. 6l(i)(5); Super. Ct. Crim. R. 6l(d)(2).
McNeil does not attempt to invoke these exceptions to Rule 6l(i)(3).

establish cause, the movant must demonstrate that an external impediment prevented
him from raising the claim earlier.5 To establish prejudice, the movant must show
actual prejudice resulting from the alleged error.6

(9) We construe McNeil’s contention that his counsel was ineffective for
failing to investigate his wife’s arrest as an attempt to establish cause and prejudice
under Rule 6l(i)(3). To support a claim of ineffective assistance of counsel, McNeil
must demonstrate that: (a) his counsel’s conduct fell below an objective standard of
reasonableness; and (b) there is a reasonable probability that, but for his counsel’s
errors, he Would not have pled guilty but would have insisted on going to trial.7 A
defendant asserting a claim of ineffective assistance must make concrete allegations
of cause and actual prejudice to substantiate a claim of ineffective assistance of
counsel.8 Although not insurrnountable, there is a strong presumption that counsel’s
representation was professionally reasonable.9

(10) There is no indication in the record that McNeil’s attorneys represented
his Wife. As counsel to McNeil, counsel owed their duties to McNeil, not his wife.

Even assuming McNeil’s counsel had a duty to investigate the arrest of McNeil’s

wife to advise McNeil on the State’s plea offer, McNeil has not shown that his

 

5 Younger, 580 A.2d at 556.

6 Id.

7 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (Del. 1988).
8 Younger, 580 A.2d at 556.

9 Albury, 551 A.2d ar 59.

counsel’s conduct was unreasonable or that he would have insisted on proceeding to
trial.

(l l) McNeil’s wife was arrested for Hindering Prosecution. A person is
guilty of Hindering Prosecution when “with intent to prevent, hinder or delay the
discovery or apprehension of, or the lodging of a criminal charge against, a person
whom the person accused of hindering prosecution knows has committed acts
constituting a crime, or is being sought by law-enforcement officers for the
commission of a crime, the person accused of hindering prosecution” prevents
anyone from performing an act which might aid in the discovery or apprehension of
the person or in the lodging of a criminal charge against the person by means of
force, intimidation, or deception.10

(12) The police reports that McNeil relies upon reflect that McNeil’s wife
first told the police on February 14, 2013 that McNeil’s car, which was the suspected
vehicle used in the drive-by shooting on February l, 2013, was sold to a dealership
and then said the car was sold to an unknown friend of McNeil’s three weeks earlier.
The person who had the car told the police that McNeil and his wife had dropped the
car off with him on February 2, 2013. There is no indication that the police lacked

probable cause to arrest McNeil’s wife for Hindering Prosecution. McNeil has not

 

1°111)€1. C. § 1244(3)(4).

shown that his counsel’s conduct with respect to wife’s arrest was professionally
unreasonable

(13) McNeil also fails to show that he would have insisted on proceeding to
trial if his counsel had investigated his wife’s arrest. McNeil’s attorneys indicated
in their affidavits that the arrest of McNeil’s Wife was not the basis for the defense
seeking a plea or the basis for the State’s plea offer. The affidavits of counsel are
consistent with the fact McNeil avoided the risk of a mandatory life imprisonment
sentence by pleading guilty.

(14) McNeil’s Truth-in-Sentencing Guilty Plea Form and guilty plea
colloquy also contradict his contention that he was coerced into pleading guilty by
his wife’s arrest. ln the Truth-in-Sentencing Guilty Plea Form, McNeil indicated
that he freely and voluntarily decided to plead guilty, no one, including his counsel
and the State, forced him to plead guilty, and he understood he was waiving certain
constitutional rights. During the guilty plea colloquy, McNeil affirmed that no one
forced him to enter into the plea agreement, he understood that the Superior Court
was not bound by the State’s sentencing recommendation, he was guilty of Murder
in the Second Degree and PFDCF, and he was satisfied with his counsel’s
representation Absent clear and convincing evidence to the contrary, which he has
not identified, McNeil is bound by his representations during the guilty plea colloquy

and in the Truth-in-Sentencing Guilty Plea Form.

(15) As set forth above, McNeil has failed to show that his counsel was
ineffective and failed to overcome the procedural bar of Rule 6 l (i)(3) as to his claim
that he was coerced into pleading guilty by the arrest of his wife. The Superior Court
did not err in denying McNeil’s motion for postconviction relief.

(16) We also conclude that the Superior Court did not err in denying
McNeil’s request for transcripts at State expense. Absent a showing of good cause,
it was within the Superior Court’s discretion to deny McNeil’s request for transcripts

at State expense.11

The Superior Court did not err in concluding that McNeil was
not entitled to transcripts at State expense based on his claim that he needed the
transcripts to prove the facts in his opening brief on appeal and to show he was not
lying.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.

BY THE COURT:

/io~lz; fr…

Justice

 

 

11 Miller v. State, 2008 WL 623236, at *2 (Del. Mar. 7, 2008) (citing United States v. MacCollom,
426 U.S. 317, 325-26 (1976)).

