            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                       IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                           )
                                             )
                      Plaintiff,             )
                                             )
                                             )
       v.                                    )       Cr. ID. No. 1003000386
                                             )
                                             )
JAMES MATOS,                                 )
                                             )
                      Defendant.             )
                                             )

                             Submitted: December 10, 2014
                              Decided: February 19, 2015

       COMMISSIONER’S REPORT AND RECOMMENDATION THAT
         DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                       SHOULD BE DENIED
                             AND
       COUNSEL’S MOTION TO WITHDRAW SHOULD BE GRANTED.



Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Patrick J. Collins and Albert J. Roop, V, Esquire, 8 East 13th Street, Wilmington,
Delaware, 19801, Attorney for Defendant James Matos.




PARKER, Commissioner
           This 19th day of February, 2015, upon consideration of Defendant’s Motion for

Postconviction Relief and Defendant’s Rule 61 Counsel’s Motion to Withdraw, it appears

to the Court that:

BACKGROUND AND PROCEDURAL HISTORY

1.         On March 1, 2010, Defendant James Matos was arrested and thereafter indicted

on charges of Arson First Degree, Burglary Second Degree, Reckless Endangering First

Degree, Cruelty to Animals, Harassment, and three counts of Breach of Bond Conditions.

2.         The Superior Court jury trial commenced on November 3, 2010.             At the

November 5, 2010 prayer conference, the trial judge reduced the arson charge from first-

degree arson to second–degree arson, because the parties (and the judge) agreed that

Defendant could not be charged with first-degree arson based on the statutory definition

of the term “building.” 1

3.         Following the trial, on November 9, 2010, the jury found Defendant guilty of the

following offenses: second-degree arson, first-degree reckless endangering, first degree

criminal trespass (a lesser-included offense of second degree burglary), cruelty to

animals, three counts of breach of bond conditions and harassment.

4.         Defendant Matos was declared a habitual offender, pursuant to 11 Del. C. §

4214(a), for each of his felony convictions.

5.          On January 28, 2011, Defendant was sentenced as follows:

           *        15 years at Level V for arson second degree;

           *        5 years at Level V for reckless endangering first degree;

           *        2 years at Level V for each of the three convictions of breach of bond

                    conditions;
1
    November 5, 2010 Trial Transcript, pg. 2.


                                                 1
           *      1 year at Level V, suspended for 1 year at Level III probation, for criminal

                  trespass;

           *      1 year at Level V, suspended for 1 year at Level III probation for

                  harassment; and

           *      1 year at Level V, suspended after 6 months, for 6 months at Level III

                  probation for animal cruelty.

6.         Defendant filed a direct appeal to the Delaware Supreme Court. On July 13, 2011,

the Delaware Supreme Court affirmed the conviction and sentence of the Superior

Court. 2

FACTS

7.         The charges at issue stem from the following facts as set forth by the Delaware

Supreme Court in its opinion on Defendant’s direct appeal. 3

8.         In September 2009, Defendant Matos began living with Joy Breen, her two

children, and the family dog at Breen’s apartment, located at 47 Norway Avenue in

Wilmington, Delaware. At the time, the 47 Norway Avenue building was approximately

100 years old. Over the years, it had been converted into an apartment building that

contained three apartment units, one on each floor. Breen’s apartment was located on the

first floor. 4

9.         About a year and a half after Matos moved in with Breen, they had a falling out,

and Breen asked Matos to move elsewhere. Matos moved to his sister’s house for the




2
  Matos v. State, 2011 WL 2732575 (Del.).
3
  Matos v. State, 2011 WL 2732575, at * 1 (Del.).
4
  Id.


                                                    2
next few days, but then returned to Breen’s apartment the following weekend, where he

spent Sunday night, February 28, 2010. 5

10.     The next day, March 1, 2010, Matos left Breen’s apartment in the early morning

without explanation. Immediately thereafter, Breen asked her landlord to have the locks

on her apartment changed. After asking her landlord to do that, Breen then left her

apartment to go to work. Her two children left to go to school, in accordance with their

daily routine. The family dog remained in the apartment in a dog crate. 6

11.     At about 9:00 a.m. that same day, Matos returned and let himself into Breen’s

apartment. Aware of the dog’s presence in the crate, Matos went into Breen’s bedroom

and, using his lighter, set Breen’s bedding on fire. He then stood there watching the

flames grow before leaving the building.          The fire and smoke destroyed Breen’s

apartment and killed the family dog. 7

12.     Shortly after 9:00 a.m., Harold Howell, who lived on the third floor, noticed

smoke coming into his apartment. Howell went downstairs to investigate, and saw

smoke coming out of the rear of Breen’s apartment. Howell immediately called the fire

department and the building’s owner and reported that the building was on fire.

Although the fire department responded quickly, Breen’s apartment had already been

destroyed by the excessive heat and smoke damage.           The second and third floor

apartments also suffered fire-related damage. 8




5
  Id.
6
  Id.
7
  Id.
8
  Id.


                                             3
13.     The evidence in this case was overwhelming against Defendant.                       A witness

observed him enter the residence shortly before the fire and exit shortly afterwards. 9

Defendant told his sister, Anita, that he tossed a lighter on the bed. 10 Defendant’s lighter

was found at the point of origin in the open position. 11 Defendant sent a letter to the

victim from prison which laid out in detail exactly how he committed the crimes. The

“confession” letter was admitted into evidence. 12

RULE 61 MOTION AND COUNSEL’S MOTION TO WITHDRAW

14.     On March 5, 2012, Defendant filed a pro se motion for postconviction relief along

with a supporting memorandum of law alleging ineffective assistance of counsel against

trial and appellate counsel. 13 Defendant’s motion for the appointment of counsel was

denied. 14 Before making a recommendation, the record was enlarged and Defendant’s

trial counsel and appellate counsel were each directed to submit an Affidavit responding

to Defendant’s ineffective assistance of counsel claims. Trial counsel filed his Affidavit

on April 25, 2012 15, and appellate counsel filed her Affidavit on April 26, 2012 16.

15.     Defendant Matos then filed a motion to amend his Rule 61 claims. 17 The court

granted Defendant’s motion to amend. 18                Appellate counsel filed a supplemental

Affidavit responding to Defendant’s amended motion on June 8, 2012. 19 In turn, the




9
  November 3, 2010 Trial Transcript, at pgs. 35-40.
10
   November 4, 2010 Trial Transcript, at pgs. 147-148.
11
   November 4, 2010 Trial Transcript, at pgs. 26-29, 61-63.
12
   See, Superior Court Docket No. 48, Exhibit A to Affidavit of Defense Counsel in Response to Rule 61
Motion
13
   Superior Court Docket Nos. 37 and 38.
14
   See, Superior Court Docket Nos. 41, 45, & 46.
15
   Superior Court Docket No. 48.
16
   Superior Court Docket No. 51.
17
   Superior Court Docket No. 54.
18
   Superior Court Docket No. 55.
19
   Superior Court Docket Nos. 57, 58.


                                                   4
State was also directed to, and did, file a response to Defendant’s motion as

supplemented. 20 Defendant filed his final response on September 4, 2012. 21

16.     On January 23, 2013, the Commissioner issued a Report and Recommendation

recommending denial of Defendant’s Rule 61 Motion (the “Commissioner’s Report”).22

In recommending denial, the Commissioner took into consideration all of the arguments

raised in Defendant’s Rule 61 motion, the Affidavits of trial and appellate counsel, the

State’s response and Defendant’s reply thereto. The Commissioner’s Recommendation

fully, thoroughly and exhaustively addressed each of Defendant’s claims and ultimately

concluded that all of Defendant’s claims lacked merit, and the motion should be denied. 23

17.     Defendant Matos appealed the Commissioner’s Report. 24

18.     On July 26, 2013, upon consideration of the Rule 61 Motion, the Commissioner’s

Report, Defendant’s appeal, and a review of the record, the Superior Court entered an

order adopting the Commissioner’s Report and denying Defendant’s Rule 61 Motion (the

“Denial Order”). 25

19.     Defendant Matos appealed the Superior Court’s Denial Order to the Delaware

Supreme Court. 26 By Order dated December 5, 2013, the Delaware Supreme Court

remanded this matter to the Superior Court for the appointment of counsel. 27

20.     On March 25, 2014, counsel was appointed.

21.     On August 24, 2014, assigned counsel filed a Motion to Withdraw as

Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(2).

20
   Superior Court Docket No. 63.
21
   Superior Court Docket No. 64.
22
   Superior Court Docket No. 68.
23
   Superior Court Docket No. 68.
24
   Superior Court Docket No. 73.
25
   Superior Court Docket No. 75.
26
   Superior Court Docket No. 76.
27
   Matos v. State, 2013 WL 6459056 (Del.).


                                             5
22.     Superior Court Criminal Rule 61(e)(2) provides that:

            If counsel considers the movant’s claim to be so lacking in
            merit that counsel cannot ethically advocate it, and counsel is
            not aware of any other substantial ground for relief available to
            the movant, counsel may move to withdraw. The motion shall
            explain the factual and legal basis for counsel’s opinion and
            shall give notice that the movant may file a response to the
            motion within 30 days of service of the motion upon the
            movant.

23.     In the motion to withdraw, Defendant’s Rule 61 counsel represented that, after

undertaking a thorough analysis of the Defendant’s claims, counsel has determined that

the claims are so lacking in merit that counsel cannot ethically advocate any of them. 28

Counsel further represented that, following a thorough review of the record, counsel was

not aware of any other substantial claim for relief available to Defendant Matos.29

Defendant’s Rule 61 counsel represented to the court that there are no potential

meritorious grounds on which to base a Rule 61 motion and has therefore sought to

withdraw as counsel. 30

24.     Defendant’s Rule 61 counsel advised Defendant of their motion to withdraw and

advised Defendant that he had the right to file a response thereto within 30 days, if

Defendant desired to do so. 31         Defendant filed a response to counsel’s motion to

withdraw on September 5, 2014, raising one claim in opposition thereto. 32

25.      In order to evaluate Defendant’s Rule 61 motion, and to determine whether

Defendant’s Rule 61 counsel’s motion to withdraw should be granted, the court should be

satisfied that Rule 61 counsel made a conscientious examination of the record and the law

28
   See, Superior Court Docket No. 90- Defendant’s Rule 61 counsel’s Motion to Withdraw with Supporting
Memorandum of Law.
29
   Id.
30
   Id.
31
   See, Superior Court Docket No. 89.
32
   Superior Court Docket No. 93- Defendant’s Response to Counsel’s Motion to Withdraw.


                                                  6
for claims that could arguably support Defendant’s Rule 61 motion. In addition, the court

should conduct its own review of the record in order to determine whether Defendant’s

Rule 61 motion is devoid of any, at least, arguable postconviction claims. 33

DEFENDANT’S RULE 61 MOTION IS WITHOUT MERIT

26.      The court finds that Defendant’s claims lack merit for all of the reasons set forth

in the Commissioner’s Report and Denial Order. 34 The Commissioner did a thorough job

in assessing the Rule 61 Motion, the arguments made in the Rule 61 Motion, and the

record of the case. On July 26, 2013, the Superior Court entered an order adopting the

Commissioner’s Report and denying Defendant’s Rule 61 motion after consideration of

the Rule 61 Motion, the Commissioner’s Report, Defendant’s appeal, and a review of the

record. 35

27.      The court continues to hold that Defendant’s Rule 61 Motion is denied for the

reasons set forth in the Commissioner’s Report of January 23, 2013 and the Superior

Court’s Denial Order of July 26, 2013.              The court adopts by reference the factual

determinations and legal conclusions set forth in the Commissioner’s Report and Denial

Order.

28.      Defendant, in response to counsel’s motion to withdraw, raises one claim in

opposition thereto. 36 Defendant continues to contend that as a result of his trial counsel’s

ineffective assistance the charge from Arson First Degree was permitted to be reduced to

Arson Second Degree in violation of his constitutional rights. 37



33
   See, for example, Roth v. State of Delaware, 2013 WL 5918509, at *1 (Del. 2013)(discussing standard
to be employed when deciding counsel’s motion to withdraw on a defendant’s direct appeal).
34
   Superior Court Docket No. 68.
35
   Superior Court Docket No. 75.
36
   See, Superior Court Docket No. 93.
37
   Id.


                                                   7
29.     This claim, like all the others, has previously been raised, fully considered, and

found to be without merit in the Commissioner’s Report and, thereafter, the Denial Order.

This claim, like all the others, is without merit for the reasons set forth in the

Commissioner’s Report and Denial Order, which are incorporated herein by reference.

30.     Briefly, at the prayer conference, Defendant’s trial counsel requested that the

charge of Arson First Degree should be reduced to the lesser included offense of Arson

Second Degree. Defendant’s trial counsel was successful in convincing the State and the

trial court that he was, in fact, correct in his position that the charge should be reduced.

31.     The court granted Defendant’s trial counsel’s request and agreed to amend the

charge from arson first degree to arson second degree. The court ruled that after carefully

looking at the charge and dissecting its elements, the State, Defendant’s counsel, and the

court, all ultimately agreed that Defendant could not, as a matter of law, be charged with

arson first degree based on the statutory definition of the term “building.” 38

32.     The court’s decision to downgrade the charge from arson first degree to arson

second degree was proper. Superior Court Criminal Rule 7(e) allows a charge to be

amended at any time prior to verdict “if no additional or different offense is charged and

if substantial rights of the defendant are not prejudiced.” Under the circumstances of this

case, the defendant had adequate notice of the underlying facts of the charge, there were

no new elements of the offense added, the amendment was a less serious lesser-included

offense of the original charge, and no additional or different offense was being charged. 39



38
  November 5, 2010 Trial Transcript, pg. 2.
39
  See, State v. Hester, 2012 WL 5364690, at *4 (Del.Super.)(charge reduced from burglary first degree to
the lesser included charge of burglary second degree was proper when amendment was a less serious
lesser-included offense of the original charge.); Rogers v. State, 2003 WL 22957024, at *2
(Del.)(amendment of indictment to charge defendant with a less serious lesser-included offense of the
original charge was properly permitted).


                                                    8
33.        As the Delaware Supreme Court made clear in Gates v. State, 40Delaware law is

quite specific. Pursuant to 11 Del. C. § 206 (c), a lesser included offense should be

charged where there is a rational basis in the evidence for a verdict acquitting the

defendant of the offense charged and convicting him of the included offense. 41

34.        In the subject case, the court determined that Defendant Matos should be

acquitted of the offense charged, as a matter of law, and only charged with the lesser

included offense. The change from Arson First Degree to the lesser-included charge of

Arson Second Degree did not substantially change the material elements of the crime.

The subject case presents the type of scenario which 11 Del. C. § 206 (c) addresses.

35.        A change which increases the penalty and adds material elements, such as an

increase of the charge from Arson Second Degree to Arson First Degree, would not be

permitted by way of amendment. But here, the amendment from Arson First Degree to

the lesser included Arson Second Degree benefitted Defendant.                            This amendment

reduced Defendant’s exposure (as a habitual offender) on the Arson charge from a Class

C felony, with the possibility of mandatory life, to a Class D felony, without the

possibility of mandatory life. The court’s decision to amend the charge from Arson First

Degree to the lesser included charge of Arson Second Degree was not improper, and

Defendant’s counsel request that the court do so was not deficient in any respect.

36.        Defendant still faced the charge of Burglary Second Degree which also carried the

possibility of mandatory life.                Defendant’s trial counsel was also successful in

convincing the jury that Defendant should not be found guilty of Burglary Second

Degree. Instead, the jury convicted Defendant of the lesser included offense of Criminal

40
     Gates v. State, 424 A.2d 18, 21 (Del. 1980).
41
     Gates v. State, 424 A.2d 18, 21 (Del. 1980); 11 Del. C. § 206 (c); Superior Court Criminal Rule 31(c).



                                                       9
Trespass.       Consequently, defense counsel was successful in eliminating Defendant’s

exposure to a mandatory life sentence under Arson First Degree and Burglary Second

Degree.

37.     In order to prevail on an ineffective assistance of counsel claim, Defendant must

meet the two-pronged Strickland test by showing that: (1) counsel performed at a level

“below an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 42         The first prong requires the defendant to show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires him to show that there is a reasonable probability that, but for

defense counsel’s unprofessional errors, the outcome of the proceedings would have been

different. 43

38.     Mere allegations of ineffectiveness will not suffice; instead, a defendant must

make and substantiate concrete allegations of actual prejudice. 44                  There is a strong

presumption that counsel’s conduct fell within a wide range of reasonable professional

assistance. 45

39.     Defendant’s claims that his counsel provided ineffective assistance are

undermined by the record and fail to satisfy Strickland. The downgrade in the arson

charge from first degree to second degree was not improper. The conduct of defense

counsel does not appear to be deficient in any respect nor has Defendant shown any

actual prejudice allegedly as a result thereof.




42
   Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
43
   Id.
44
   Younger v. State, 580 A.2d 552, 556 (Del. 1990).
45
   Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).


                                                   10
40.    The court has reviewed the record carefully and has concluded that Defendant’s

Rule 61 motion is without merit and devoid of any other substantial claims for relief.

The court is also satisfied that Defendant’s Rule 61 counsel made a conscientious effort

to examine the record and the law and has properly determined that Defendant does not

have a meritorious claim to be raised in his Rule 61 motion.

       For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be denied and Defendant’s counsel’s motion to withdraw should be granted.



       IT IS SO RECOMMENDED.



                                                    __________/s/_________________
                                                    Commissioner Lynne M. Parker



oc: Prothonotary
cc: Nicole M. Walker, Esquire
    Dade D. Werb, Esquire
    Mr. James Matos




                                           11
