IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,

V. Cr. ID No. 1411008699

KEITH L. CAMPBELL,

Defendant.

Submitted: December 5, 2016
Decided: February 13, 2017

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

BE SUMMARILY DISMISSED AND DEFENDANT’S MOTION FOR
APPOINTMENT OF COUNSEL SHOULD BE DENIED

Matthew Frawley, Deputy Attorney General, Department Of Justice, Wilmington,
Delaware, Attomey for the State.

Keith L. Campbell, Sussex Correctional Institution, Georgetown, Delaware, pro se.

MAYER, Commissioner

This 13th day of February, 2017, upon consideration of Defendant’s Motion
for Postconviction Relief and Motion for Appointment of Counsel, it appears to the
Court that:

BACKGROUND. FACTS AND PROCEDURAL HISTORY

1. On January 20, 2015, Defendant Was indicted on the following charges: two
counts of Attempted Murder First Degree, two counts of Possession of a Firearm
During the Commission of a Felony, two counts of Possession of a Firearm by a
Person Prohibited, and Conspiracy First Degree.

2. Defendant, With the assistance of trial counsel, submitted several motions to
suppress search Warrants and statements made by Defendant. After full briefing,
and oral argument, the Court issued a Memorandum Opinion on October 6, 2015
granting the motion in part and denying it in part. By Way of the motions,
Defendant raised five distinct arguments including that the information in the
Warrant Was insufficient to establish probable cause and Whether there Were any
alleged misstatements by the detective in the search Warrant affidavit Which
required a Franksl hearing. The Court held that the Warrants Were sufficient to
establish probable cause and there Was no proof that the detective’s statements

Were untruthful or that Defendant Was entitled to a Franks hearing.

 

' All references to “Franks” are meant to refer to anks v. Delaware, 438 U.S. 154 (1978).
l

3. On October 6, 2015, Defendant pled guilty to Assault First Degree, Assault
Second Degree, Conspiracy Second Degree, and one count of Possession of a
Firearm by a Person Prohibited (the “PFBPP Charge”). In the Plea Agreement, the
State agreed to cap its chcl 5 recommendation at 15 years or to recommend 25
years of Level 5 incarceration suspended after 15 years, followed by decreasing
levels of probation.2 Prior to accepting this plea, Defendant rejected an offer from
the State that involved Defendant pleading guilty to several felonies and the State’s
recommendation to cap the time to be served at Level 5 at 10 years.3

4. On that same date, Defendant also 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 a trial, to question witnesses, and if convicted, to file an appeal
to the Delaware Supreme Court with the assistance of a lawyer. Further,
Defendant acknowledged that based on the totality of the charges to which he was

pleading guilty, the consecutive maximum sentence could be 50 years.

 

2 Docket No. 45,

3 Docket No. 42.

5. Defendant later filed two Motions to Withdraw Guilty Plea. On April 21,
2016, the Court denied the motion but agreed to reduce the Defendant’s minimum
mandatory time for the PFBPP Charge to 5 years.4

6. In support of the Motion to Withdraw Guilty Plea, trial counsel submitted a
letter indicating Defendant was incorrectly advised by counsel (and the Court)
regarding the minimum penalty for the PFBPP Charge.5 ln fact, Defendant argued
that the prosecutor, defense attorney, and the judge all misunderstood the minimum
penalty for the PFBPP Charge.

7. In the April 21, 2016 decision, the Court (i) acknowledged that Defendant
did not argue that he was unclear as to the terms of the Plea Agreement, that his
mental or physical condition rendered the plea involuntary, or that he was mistaken
with regard to his legal rights; (ii) held that counsel aggressively pursued
Defendant’s legal position in seeking to suppress evidence and urging the Court to
hold a anks hearing; (iii) emphasized that the Plea Agreement substantially
reduced Defendant’s exposure in that if he had been convicted at trial, he would
likely be spending the remainder of his life incarcerated; and (iv) recalled the

extensive colloquy with Defendant regarding the rights he was giving up and the

 

4 Docket NO. 54.

5 Docket NO. 53.

Plea Agreement he was accepting and that Defendant displayed no hesitation or
confusion.

8. The Court then analyzed Defendant’s two previous convictions, to which he
plead guilty and was sentenced on the same day, and held that while Defendant
committed two separate crimes on different days, they were to be treated as a
singular conviction subjecting Defendant to the five-year minimum mandatory
sentence, rather than a ten year minimum mandatory term originally thought to
apply.6 The Court denied the motion to withdraw the guilty plea on the basis that
Defendant entered into the plea knowingly, intelligently and voluntarily, and the
reduction only benefited Defendant, and thus “Defendant would not have foregone
his decision to plead guilty as a result of this change in the minimum mandatory
sentence. . .”

9. Defendant was sentenced on June 7, 2016 to a total of twelve (12) years at
Level 5, followed by decreasing levels of probation. Included within the sentence,

Defendant received five (5) years at Level 5 for the PFBPP Charge.7

 

6 At the time that Defendant plead guilty, it was believed that he was subject to the enhancement
found in 11 D_el. Q. §1448(€)(2)(0) and a minimum mandatory time to be served of 10 years for
the PFBPP Charge. The Court amended the sentence in this case to reflect a minimum
mandatory sentence of 5 years which is consistent with ll Dil. g §1448(e)(1)(b).

7 Docket No. 55. Defendant also filed a pro se Motion for Reduction/Modification of Sentence
(Docket No. 57) that was denied on October 20, 2016 (Docket No. 58).

10. On December 5, 2016, Defendant filed a thirty-one page single spaced
Motion for Postconviction Relief including numerous case citations and exhibits.
In support of his postconviction motion, Defendant argues (i) trial counsel was
ineffective for failing to file an effective motion to suppress; and (ii) prosecutorial
misconduct as well as ineffective assistance of counsel requires relief as a result of
counsel overstating the applicable statutory time when the plea was offered and
accepted.

DEFENDANT’S RULE 61 MOTION

1 l. The Court must first determine whether there are any procedural bars to the
motion before considering the merits.8 Having reviewed the Motion it is evident
that although timely, the Defendant’s Motion is procedurally barred and may be
summarily dismissed

12. Defendant’s motion is barred by Superior Court Criminal Rule 61(i)(4)
which prohibits a defendant from raising claims that have already been adjudicated
in the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding or in a federal habeas corpus proceeding. Defendant’s
postconviction motion raises essentially two issues, counsel’s inability to secure a
anks hearing and prevail on the motion to suppress, and a collective

misunderstanding of the minimum sentence applicable to Defendant’s PFBPP

 

8 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5

Charge. These issues were directly addressed by the Court’s decisions on the
Motion to Suppress and Motion to Withdraw Guilty Plea. Defendant did not seek
an appeal or other reconsideration of either decision and both decisions were
finally adjudicated Defendant is now precluded from raising these claims again.

13. 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 61.9 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
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.

14. Defendant plead 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

 

9 Superior Court Criminal Rule 61(i)(5).

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 bar.

l5. Even if considered on the merits, Defendant’s arguments are not supported
by the record and Defendant has failed to establish that trial counsel was
ineffective. When reviewing a claim of ineffective assistance of counsel, the Court
must analyze counsel’s conduct based upon all of the facts of the case and avoid
peering through the lens of hindsight.lo 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.ll “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.”12 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.13 Even assuming trial

counsel erred, in order for Defendant’s motion to succeed, he must prove that (i)

 

‘O State v. Wrigh¢, 653 A.2d 288, 295 (Del. super., 1994).
" State v. an, 2012 wL 1980566, at *4 (Del. super., May 23, 2012).

12 Ia' (holding defense counsel provided active and capable advocacy when evidence against
Defendant was overwhelming) (citing Harrington v. Richter, 131 S.Ct. 770, 787-792 (2011)).

‘3 Smre v. Milzer, 2013 wL 871320, at*4(De1. super., Feb. 26, 2013).

counsel’s representation fell below an objective standard of reasonableness; and
(ii) the error was so prejudicial that Defendant would not have plead guilty and
would have insisted on going to trial.14
16. Importantly, Defendant does not argue that he would not have pled guilty.
Rather, he argues that he would have preferred a better deal. If Defendant had
gone to trial, the convictions and sentencing could have been significantly more
severe than the Plea Agreement that resulted in twelve years at Level 5. Defendant
ignores the fact that by accepting the State’s plea offer, he avoided a trial that
involved (i) two counts of Attempted Murder First Degree in addition to other
felony charges; (ii) a possible penalty of a life sentence at Level 5; and (iii) strong
evidence by the State in support of the charges. Defendant’s sentence is dwarfed
by the possible sentence that could have been imposed, Defendant argues that he
would have accepted the rejected plea that included a recommendation of a cap at

10 years at Level 5 with a mandatory minimum of 7 years.15 However, the Court is

not bound by the State’s recommendation, and there is no right to enter into a plea

 

"‘ State v. Kashner, 2016 wL 354999, at *1 (Del. super., Jan. 27, 2016); Srrzckland v.
Washl`ngton, 466 U.S. 668, 687-88, 694 (1984).

15 The original plea offer included a charge of Possession of a Firearm During the Commission
of a Felony, not the PFBPP Charge.

agreement for a specific sentence or range of sentence.16 Moreover, there was no
prejudice to the Defendant because the Court corrected the mandatory minimum
applicable to the PFBPP Charge.

17. Furthermore, to the extent Defendant argues that counsel’s performance was
deficient with respect to the suppression of evidence, this argument is directly
contradicted by the record. Defendant’s motion to suppress was successful in part
and Defendant agreed to the plea in light of the Court’s ruling. ln addition, in the
Court’s April 21, 2016 decision, the Court held that “[d]espite Defendant’s
allegations to the contrary, counsel in this case has aggressively pursued
Defendant’s legal position, both in terms of seeking to suppress certain evidence

”17 Therefore, there is no evidence

and urging the Court to hold a Franks hearing.
that trial counsel’s performance was deficient with respect to this matter.

18. In light of the facts and circumstances in this case, to the extent there was an
error on the part of trial counsel, such error did not affect the outcome of this
matter. As the Court noted in its April 21, 2016 decision, “[a]ny suggestion that
the Court’s decision today, reducing the minimum mandatory sentence faced by

Defendant from ten to five years, could have caused Defendant to instead proceed

to trial is utterly without merit.” The evidence against Defendant was strong,

 

16 Somervl`lle v. Sate, 703 A.2d 629, 632-633 (Del. 1997); Superior Court Criminal Rule ll(e),
Notably, the possible sentence for the charges to which the Defendant pled guilty could have
been as much as 50 years, significantly more than the 12 years he received.

17 Docket No. 54 at p. 2.

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.
DEFENDANT’S MOTION FOR APPOINTMENT OF COUNSEL
19. In support of his Motion for Appointment of Counsel, Defendant re-iterates
his arguments set forth in the Motion for Postconviction Relief. Defendant’s post-
conviction arguments were set forth at length in the motion and supported by
citations to legal authorities as well as exhibits. Defendant pled guilty and did not
take an appeal to the Delaware Supreme Court. In light of the above
recommendation regarding the Motion for Postconviction Relief and the additional
facts set forth herein, Defendant has not articulated a basis for appointment of
counsel pursuant to Superior Court Criminal Rule 6l(e)(2).

For all of the foregoing reasons, Defendant’s Motion for Postconviction
Relief should be summarily dismissed and Defendant’s Motion for Appointment of

Counsel should be denied.

IT IS SO RECOMMENDED.CQ\
Commim L. T\M

oc: Prothonotary
cc: Keith Campbell

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