IN THE SUPREME COURT OF THE STATE OF DELAWARE

BRANDON ALSTON, §
§ No. 16, 2015
Defendant Below— §
Appellant, § Court Below: Superior Court
§ of the State of Delaware in and
v. § for Sussex County
§
STATE OF DELAWARE, § No. 120901415
§
Plaintiff Below- §
Appellee. §

Submitted: August 19, 2015
Decided: September 4, 2015

Before HOLLAND, VALIHURA, and VAUGHN, Justices.

0 R D E R
On this 4* day of September 2015, it appears to the Court that:

(1) Defendant-Below/Appellant Brandon Alston (“Alston”) appeals ﬁ-om 21
Superior Court order denying his Rule 61 Motion for Postconviction Relief. Alston
raises one claim on appeal related to the performance of his trial counsel. He argues
that his trial counsel did not conduct a sufﬁcient investigation before advising him
to plead guilty to ﬁve of the crimes for which he was indicted. Alston further argues
that had a sufﬁcient investigation been conducted, evidence that proved his innocence
would have arisen and he would not have pleaded guilty. We ﬁnd no merit to

Alston’s appeal and afﬁrm.

(2) On September 14, 2012, police responded to a call reporting a shooting in
progress at 332 North Street, Seaford, Delaware. Witnesses stated that Alston had
twice driven by Victor Hammond’s house in a silver Dodge Magnum while ﬁring
shots at the residence. Hammond was dating Alston’s ex-girlfriend, Dashon Wright,
at the time of the shooting. After being informed that Alston was ﬂeeing the area in
the Dodge Magnum, ofﬁcers proceeded to Alston’s residence at 527 Third Street.

(3) While outside Alston’s residence, ofﬁcers observed Alston leave his house
with what was believed to be a ﬁrearm. Alston ran behind his residence and towards
the house next door. While in the gap between the two houses, one of the ofﬁcers
stated that he saw Alston pointing a gun at him. The ofﬁcer ﬁred three shots at
Alston, but missed all three times. Alston was apprehended, but no ﬁrearm was
found on his person. Soon thereafter, Alston’s mother approached the police on
scene and informed them that she had spoken with Alston. During her conversation
with Alston, Alston told her that he discarded the gun in a bush near his neighbor’s
house. After speaking with Alston’s mother, police recovered the gun from a bush
near 525 Third Street, close to the path Alston took while running from the police.

(4) Ofﬁcers also arrested a man named Jamil Brown, who was in the Dodge
Magnum with Alston when the shooting at 332 North Street occurred. Brown

informed ofﬁcers that Alston was the shooter and driver of the Dodge Magnum at the

IQ

332 North Street shooting.

(5) On November 19, 2012, Alston was indicted on thirty-four counts of
criminal activity: seven counts of Aggravated Menacing; ﬁfteen counts of Possession
of a Firearm During the Commission of a Felony; seven counts of Reckless
Endangering in the First Degree; two counts of Possession of 3 Deadly Weapon by
a Person Prohibited; one count of Discharging a Firearm; one count of Resisting
Arrest with Force; and one count of Driving While Suspended or Revoked. On
March 14, 2013, trial counsel was appointed for Alston.

(6) In preparation for the trial, Alston provided his appointed trial counsel with

the name of an alleged exculpatory witness, Jun Aiken.'

According to Aiken’s
afﬁdavit, she witnessed Alston’s ﬂight from 527 Third Street, and claims she did not
see him with a ﬁrearm. Alston’s trial counsel did not contact Aiken in preparation
for his trial or plea colloquy.

(7) On May 6, 2013, Alston pleaded guilty, under oath, to five of the thirty-four
counts for which he was indicted.2 Alston stated that he understood what rights he

was giving up, that he had no complaints about the representation provided by his

defense counsel, and that he had discussed the consequences of pleading guilty with

' The name specified in Alston’s letter was June Atkins. However, “Jun Aiken” is the correct
spelling according to Ms. Aiken’s afﬁdavit.

'T-The plea agreement resolved the indictments from both the shooting incident on September 14,
2012, and a separate drug-related incident on October 7. 20] l.

a
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his defense counsel.

(8) On August 19, 2013, Alston submitted a pro .56 motion for postconviction
relief alleging ineffective assistance of counsel. On March 24, 2014, Rule 61 counsel
submitted an amended motion for postconviction relief on Alston’s behalf. On May
27, 2014, Rule 61 counsel submitted a supplemental motion for postconviction relief.
On December 16, 2014, the Superior Court denied Alston’s motion for postconviction
relief. This appeal followed.3

(9) Alston asks that we reverse the Superior Court’s denial of postconviction
relief on the grounds that his trial counsel was ineffective when he failed to review
evidence that would have shown his innocence. “We review a Superior Courtjudge’s
denial of a Rule 61 motion for postconviction relief for abuse of discretion.”4

(10) The rule governing ineffective assistance of counsel in Strickland v.
Wtwhingt‘on.S In Strickland, the United States Supreme Court ruled that in order to
prove ineffective assistance of counsel, the defendant must show (1) deﬁcient

performance and (2) that the deficient performance prejudiced the defense."

5 Puzzlingly, Rule 61 appointed counsel ﬁled a motion to withdraw from the motion for
postconviction relief the day after the Superior Court judge’s order denying the motion for
postconviction relief was ﬁled, stating: “After careful consideration of this matter. as an ofﬁcer of
this court, 1 have no good faith basis to pursue the amended motion for postconviction relief.
Therefore, 1 am respectfully withdrawing it.“

‘ Hoskinx v. State. 102 A.3d 724, 728 (Del. 2014) (quoting Neal 1*. Stale, 80 A.3d 935, 941 (Del.
2013)); Mama v.“ Sm, 585 A.2d 736, 754 (Del. 1990).

5 Strickland v. “*"ris'liinglon, 466 US. 668, 68188 (1984).

6 1d. at 687.

(l 1) Counsel’s performance is deﬁcient when “counsel’s representation fell
below an objective standard of reasonableness . . . ."7 There is a strong presumption
that trial counsel’s representation of his or her client was professionally reasonable.8
While defense counsel has a general duty to investigate any mitigating or exculpatory
evidence, counsel is not required to “pursue all lines of investigation about potentially
mitigating evidence.”9

(12) In F Iamer v. State, defense counsel presented a list of seven mitigating
factors to be considered at the penalty stage of the defendant’s trial.l0 However,
defense counsel chose not to present evidence and witness testimony relating to other
potentially mitigating factors.” The Superior Court denied the defendant’s motion
for postconviction relief, and the defendant appealed to this Court.12 Upon examining
the reasonableness of the defense counsel’s conduct, this Court determined that
defense counsel has no absolute responsibility to present all potentially mitigating or
exculpatory evidence.'3

(13) Similarly, in Wilkinson v. State, this Court determined that defense counsel

was not ineffective when he chose not to investigate certain alibi witnesses.” In
Wilkinson, the defendant alleged, inter alia, that his defense counsel failed to
interview potentially exculpatory witnesses.” This Court found that this fact alone
was not sufﬁcient to show ineffective assistance of counsel. '6

(14) We have held that in a situation where a defendant claims his counsel was
deﬁcient because he failed to provide the defendant with enough information to make
an informed guilty plea, the defendant must show that counsel was deﬁcient by clear
and convincing evidence.”

(15) Here, Alston argues that his defense counsel’s performance was deﬁcient
because his innocence could have been brought to light if his counsel had interviewed
Aiken. This argument is without merit. As stated in F lamer, defense counsel does
not have a duty to investigate all evidence that might be helpful to the defendant’s
case. Alston’s defense counsel conducted an adequate investigation based on a police
report and eyewitness testimony. Alston was not required to interview all potential
defense witnesses before advising Alston to plead guilty. If Alston believed himself
to be innocent, and believed there was an exculpatory witness available to testify, he

should not have taken the guilty plea and proceeded to trial. The record shows that

'4 H ilkinson v. State, 2012 WL 6597844, at *1 (Del. Dec. 17, 2012).

'5 Id. The defendant also alleged that defense counsel had a drinking problem. Id.
[61(1.

'E Knife/tick v. State, 2014 WL 4264926, at *2 (Del. Aug. 28, 2014).

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he entered the guilty plea of his own free will after having fully discussed the matter
with his counsel. Alston does not argue on appeal that his plea was not knowing and
voluntary,18 and he is bound by those concessions on appeal.

(16) In claiming ineffective assistance of counsel, the defendant must show that
counsel’s deﬁciency prejudiced the outcome of his case. '9 “The defendant must show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different?” The defendant must make
speciﬁc allegations of how defense counsel’s conduct actually prejudiced the
proceedings, rather than mere allegations of ineffectiveness.2| “[The] failure to state
with particularity the nature of the prejudice experienced is fatal to a claim of
ineffective assistance of counsel.”22 “Where the alleged error of counsel is a failure
to investigate, a determination of ‘prejudice’ to the defendant by causing him to plead

guilty depends upon the likelihood that the additional effort by counsel would have

“‘ See Scum-ville v. State, 703 A.2d 629, 631-32 (Del. 1997) (citations omitted):
The judge must determine that the defendant understands the nature of the
charges and the penalties provided for each of the offenses. The record must
reﬂect that the defendant understands that the guilty plea constitutes a waiver
of a trial on the charges and a waiver of the constitutional rights to which he
or she would have been entitled to exercise at a trial. The trial judge must
also determine that a guilty plea is not the result of force, threats, or promises
apart from the plea agreement. i.e., is voluntary.

‘9 Strickland v. Washington, 466 US. 668, 687 (1984).

3" Id. at 694.

3‘ l‘l’right v. Slate, 671 A.2d 1353, 1356 (Del. 1996).

33 Dawson v, Slate, 673 A.2d i l86, 1 196 (Del. 1996).

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led to a change in counsel’s recommendation as to that plea.

(17) Alston has failed to offer any substantiated evidence showing that his trial
counsel’s failure to further investigate affected his recommendation that Alston plead
guilty. Alston offers only hypothetical arguments on appeal, claiming that had his
defense counsel conducted a sufﬁcient investigation, his innocence would have been
revealed, and he would not have entered a plea. But in light of the other evidence
against him, these allegations are simply insufficient to substantiate his claim.
Alston’s mother informed police of where the gun was located based on information
she received from Alston. The passenger in the car with Alston at the time of the
shooting on North Street stated that Alston fired the gun. The bush in which the gun
was found was very close to the path Alston ran along in an attempt to avoid capture.
Based on the strength of the State’s case, and the fact that Alston knowingly and
voluntarily pleaded guilty, his allegations regarding his defense counsel’s conduct fail
under the second prong of the Strickland test.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

 

33 Albany v. State, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lackharl, 474 US. 52, 58-59 (1985)).

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