      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE,                  )
                                    )
      V.                            )       Cr. ID No. 1007011756
                                    )
DAMICHAEL L. ALLEN,                 )
                                    )
            Defendant.              )
                                    )

                         Submitted: October 3, 2016
                         Decided: December 22, 2016

   COMMISSIONER’S REPORT AND RECOMMENDATION THAT
 DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD
               BE SUMMARILY DISMISSED



Martin O’Connor, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.

Damichael L. Allen, James T. Vaughn Correctional Center, Wilmington,
Delaware, pro se.




MAYER, Commissioner




                                        1
         This 22nd day of December, 2016, upon consideration of Defendant’s

Motion for Postconviction Relief, it appears to the Court that:

BACKGROUND, FACTS AND PROCEDURAL HISTORY

1.       Damichael Allen was indicted on January 18, 2011 on the charges of

Burglary First Degree, Robbery First Degree, Rape First Degree, and Possession of

a Firearm During the Commission of a Felony. Defendant later entered into a Plea

Agreement and pled guilty to Rape First Degree and Burglary First Degree and the

remaining charges were dismissed.

2.       On September 20, 2011,1 Defendant signed a Truth-in-Sentencing Form

acknowledging that he was freely and voluntarily pleading guilty to the charges

listed in the plea agreement, that he had not been promised anything that was not

stated in the written plea agreement, and that no one threatened or forced him to

enter the plea. Defendant also acknowledged that by pleading guilty he was

waiving the right to file an appeal to the Delaware Supreme Court with the

assistance of a lawyer. Further, Defendant acknowledged that the sentence for the

Burglary charge could be 4-20 years at Level 5, with 4 years mandatory, and for

the Rape charge the sentence could be 15 years to life with 15 years as the

mandatory minimum. No sentencing recommendation was made by the State of

Delaware in the agreement.


1
    Although signed on September 20, 2011, it was filed on September 27, 2011.
                                                2
3.       On December 15, 2011, Defendant was sentenced on the Burglary charge to

6 years, suspended after 4 years for 2 years at Level 4, suspended after 6 months

for 18 months at Level 3. With respect to the Rape charge, Defendant received 30

years at Level 5, suspended after 20 years for 5 years at level 4, suspended after 6

months for 1 year at level 3.

4.       Defendant filed this Motion for Postconviction Relief on October 3, 2016.

Defendant argues that (i) his counsel advised him that by accepting the plea, the

charges would be dropped to a lesser charge; and (ii) counsel was ineffective for

failing to file a motion to challenge his sentence and appeal.

DEFENDANT’S RULE 61 MOTION

5.       The Court must first determine whether there are any procedural bars to the

motion before considering the merits.2 Having reviewed the Motion it is evident

that the Defendant’s Motion is procedurally barred and may be summarily

dismissed as untimely.

6.       Superior Court Criminal Rule 61(i)(1) imposes the condition that a motion

for postconviction relief may not be filed more than one year after the judgment of

conviction is final.        Defendant pled guilty on September 27, 2011, and was

sentenced on December 15, 2011. Defendant did not file a direct appeal and




2
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                                 3
therefore his judgment of conviction became final on January 14, 2012.3 The

present motion was filed more than four (4) years after the Defendant’s judgment

became final. Therefore, the motion was filed outside the applicable time limit and

Defendant’s claims, at this late date, are time-barred.4

7.       The procedural bar set forth above will not apply to a claim that the court

lacked jurisdiction or to a claim that satisfies the pleading requirements of

subparagraphs (2)(i) or (2)(ii) of subdivision (d) of Rule 61.5 Defendant has not

raised the issue of lack of jurisdiction and the Motion does not satisfy the

necessary pleading requirements.             Pursuant to Rule 61(d)(2), a postconviction

motion shall be summarily dismissed, unless the movant was convicted after a trial

and the motion either (i) pleads with particularity that new evidence exists that

creates a strong inference that the movant is actually innocent in fact of the acts

underlying the charges of which he was convicted; or (ii) pleads with particularity

a claim that a new rule of constitutional law, made retroactive to cases on collateral




3
 Pursuant to Superior Court Criminal Rule 61(m)(1), a judgment of conviction is final for the
purpose of this rule within 30 days after the Superior Court imposes sentence if the defendant has
not filed a direct appeal.
4
  See State v. Lum, 2007 WL 104145, at *3 (Del. Super. Mar. 22, 2007) (holding claims of
ineffective assistance of counsel filed more than 16 years after conviction became final were
procedurally barred); State v. Marine, 2015 WL 3429920 (Del. Super. May 13, 2015) (finding
motion filed more than 9 years after sentencing was procedurally barred as untimely).
5
    Superior Court Criminal Rule 61(i)(5).
                                                4
review by the United States Supreme Court or the Delaware Supreme Court,

applies to the movant’s case and render the conviction or death sentence invalid.

8.       Defendant pled guilty to the charges and has not asserted any new evidence

or facts demonstrating any inference that he is innocent of the acts giving rise to

the conviction. Rather, Defendant appears to be challenging the sentence that was

imposed, not the conviction. Further, Defendant has not claimed that a new rule of

constitutional law affects his conviction. As such, Defendant has failed to meet the

pleading requirements of Rule 61(d)(2)(i)-(ii) and has not presented any argument

to justify relief from the procedural bars.

9.       Finally, even if considered on the merits, Defendant’s claims fail. When

reviewing a claim of ineffective assistance of counsel, in order for Defendant’s

motion to succeed, he must prove that (i) counsel’s representation fell below an

objective standard of reasonableness; and (ii) the error was so prejudicial that

Defendant would not have pled guilty and would have insisted on going to trial.6

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

Amendment.7         Defendant must overcome a strong presumption that counsel’s




6
 State v. Kashner, 2016 WL 354999, at *1 (Del. Super., Jan. 27, 2016); Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984).
7
    State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).
                                                 5
conduct was reasonably professional under the circumstances.8 Mere allegations

of ineffectiveness will not suffice, rather, a defendant must make and substantiate

concrete allegations of actual prejudice.9 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.10

10.       Defendant has failed to point to any agreement with the State for a lesser

charge or sentence and nothing appears in the record to support this claim.

According to the Truth-in-Sentencing Form, Plea Agreement and plea colloquy at

the hearing, no promises were made to the Defendant with respect to sentencing.

By accepting the State’s plea offer, Defendant avoided a trial that involved four

felony charges and the possibility of a mandatory minimum incarceration of 23

years and a possibility of 70 years or life. If Defendant had gone to trial, the

convictions and sentence could have been significantly more severe than what he

received at sentencing.           Based on the facts and circumstances in this case,

Defendant received a substantial benefit from the plea agreement and the record

reflects that Defendant entered into it knowingly, voluntarily and intelligently. As

such, the Motion does not meet the requirements for post-conviction relief.



8
    State v. Wright, 653 A.2d 288, 293-94 (Del. Super. 1994) (citations omitted).
9
    Younger v. State, 580 A.2d 552, 556 (Del. 1990).
10
     State v. Miller, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).
                                                  6
      For all of the foregoing reasons, Defendant’s Motion for Postconviction

Relief should be summarily dismissed.


      IT IS SO RECOMMENDED.

                                       /s/ Katharine L. Mayer_ ___
                                    Commissioner Katharine L. Mayer


oc:   Prothonotary
cc:   Martin O’Connor, Esquire
      Damichael L. Allen




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