IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

I.D. No. 1410004172

)

)

v. )
) Cr.A.Nos. IN14-10-0750, etc.
)
)

HOWARD A. WALSH,
Defendant.

Submitted: June 7, 2018
Decided: September 26, 2018

ORI)ER DENYING MQTION FOR POST CONVICT{ON RELIEF

This 26th day of September, 2018, upon consideration of the Defendant
Howard A. Walsh’s Amended Motion for Postconviction Relief (D.I. 78),l his trial
counsel’s affidavit (D.I. 82), his former postconviction counsel’s affidavit (D.l. 81),
the State’s response to those submissions (D.I 84), Mr. Walsh’s reply (D.I. 88), and
the record in this matter, it appears to the Court that:

(l) Howard A. Walsh Was indicted in January 2015, on three counts of
Possession of a Firearm by a Person Prohibited, one count of Possession of
Ammunition by a Person Prohibited, one count of Carrying a Concealed Dangerous

Instrument, and one count of Criminal Impersonation.2 Following a jury trial, Mr.

 

l This amended motion appears to fully integrate Mr. Walsh’s arguments made in prior pro
se postconviction filings and is therefore viewed by the Court as Mr. Walsh’s final statement of
the issues he asks the Court to consider under Superior Court Criminal Rule 6l. See, e.g., D.I. 22
(Walsh’s first attempt to file a postconviction motion pre-direct appeal); D.I. 45 (Walsh’s first
timely postconviction motion); D.I. 73 (Walsh’s amended postconviction motion following his
discharge of appointed postconviction counsel).

2 See Indictment, Slate v. Howard A. Walsh, ID No. 1410004172 (Del. Super. Ct. Jan. 5,
2015). See also DEL. CODE ANN. tit. ll, § 1448 (2015) (possession of a firearm and ammunition

_1_

Walsh was convicted of all counts. After a pre-sentence investigation was prepared,
the Court sentenced Mr. Walsh to serve a cumulative 30-year term of imprisonment
followed by and probationary supervision3

(2) He filed a direct appeal. Mr. Walsh was represented by Ralph D.
Wilkinson, Esquire (“Trial Counsel”), through his trial proceedings and the
docketing of his direct appeal. He was permitted to proceed pro se during direct
appeal.4 And in that appeal, his convictions and sentence were affirmed by the
Delaware Supreme Court.5

(3) Mr. Walsh filed his first timely postconviction motion pro se. (D.I. 45).
In it he raised various claims of ineffective assistance of counsel (“IAC”). And so,
he was appointed counsel, R. Joseph Hrubiec, Esquire (“PCR Counsel”), to represent
him (D.I. 50).

(4) PCR Counsel filed an amended motion and supporting materials (D.I.
65). Unhappy with those efforts, Mr. Walsh moved to discharge PCR Counsel (D.I.

69) and revive his pro se arguments.

 

by a person prohibited); id. at § 1443 (carrying a concealed dangerous instrument); id. at § 907
(criminal impersonation).

3 Sentencing Order, State v. HowardA. Walsh, ID No. 1410004172 (Del. Super. Ct. Nov. 6,
2015).

4 See D.I. 36.

5 Walsh v. State, 2016 WL 3751911 (Del. June 29, 2016).

_2_

(5) The Court heard the motion to discharge and subsequently ordered that:

(a)

(b)

(C)

PCR Counsel was relieved as postconviction counsel and Mr.
Walsh could proceed pro se in subsequent postconviction
proceedings;

all prior pro se postconviction motions, and that which PCR
Counsel filed, were deemed Moot;

Mr. Walsh was permitted to file a pro se amended fully-
integrated postconviction motion under Superior Court Criminal
Rule 61. That motion was to include any and all postconviction
claims that Mr. Walsh wished the Court to consider.6

(6) The Court now has before it Mr. Walsh’s final amended petition7 that

raises five claims:

(a)

(b)

(C)

(d)

IAC by Trial Counsel for allegedly failing to_(i) properly pursue
discovery of certain police patrol car dashcam video footage Mr.
Walsh believes exists and make related suppression arguments,
(ii) object to certain trial arguments by the prosecutor,
(iii) prevent presentation of his prior felony conviction to prove
the person prohibited element of his charged crimes, and
(iv) make a mistake of law argument on his behalf;

A due process violation based on his belief in the existence of
certain police patrol car dashcam video footage;

A due process violation based on his belief that there was juror
intimidation;

Prosecutorial misconduct due to alleged discovery violations and
arguments before the jury; and

 

6 D.I. 72.

See n.1, supra

(e) IAC by PCR Counsel counsel for failing to pursue the arguments
that Mr. Walsh now makes due to an alleged “interest to defend
trial counsel and the state police.”8

(7) When considering applications for postconviction relief under its
criminal rules, this Court addresses any applicable procedural bars before turning to
the merits.9 This policy protects the integrity of the Court’s rules and the finality of
its judgments. Addressing the merits of a case that does not meet procedural
requirements effectively renders our procedural rules meaningless '0

(8) Rule 61 sets forth procedural bars to postconviction claims, including
that “[a]ny ground for relief that was not asserted in the proceedings leading to the
judgment of conviction, as required by the rules of this court, 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.”" Walsh’s failure to raise his

second and fourth claims--i.e., his due process argument regarding the alleged

 

8 See Def.’s Amended Mot. for Postconviction Relief, State v. Howard A. Walsh, ID No.
1410004172 (Del. Super. Ct. Dec. 22, 2017) (D.I. 78) (“Def.’s Amended PRC Mot.”).

9 See, e.g., Ayers v. State, 802 A.2d 278, 281 (Del. 2002). See also Bailey v. State, 588 A.2d
1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed,
489 U.S. 255 (1989)).

'° See State v. Chao, 2006 WL 2788180, at *5 (Del. Super. Ct. Sept. 25, 2006) (“To protect
the integrity of the procedural rules, the Court should not consider the merits of a postconviction
claim where a procedural bar exists.”); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct.
Sept. 10, 2002) (citing State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Ct. Dec. 28, 1995))
(same).

" SUPER. CT. CRIM. R. 61(i)(3) (2017).

withheld police dashcam video and his prosecutorial misconduct complaint_either
during trial or on direct appeal prevents the Court from addressing it now unless
Walsh shows cause for relief and prejudice from a violation of his rights Walsh has
demonstrated neither the requisite cause for relief nor prejudice. And so, these
claims are barred Rule 61(i)(3).

(9) Mr. Walsh represented himself during appeal and while he raised a
related suppression claim that he believes would have been supported by the alleged
missing video footage, he made no due process claim. He demonstrates no cause
for this failure. But more important, there is nothing that could have been turned
over. During these postconviction proceedings Mr. Walsh’s suspicions regarding
the imagined helpful police dashcam footage were investigated by the State. There
never was any such footage,12 and Mr. Walsh could therefore not be prejudiced by
the withholding of that which never existed.

(10) Similar failures doom his prosecutorial misconduct complaints In his
fourth claim, Walsh surmises that the State “fail[ed] to turn over all the Rule 16
discovery material to assign[ed] counsel . . ., with[held] material that there is

confidential informant whose name is Lisa Smith,” and suggests the prosecutor

 

12 See EX. A to State’s Resp. to Amended Mot. for Postconviction Relief, State v. Howard A.
Walsh, ID No. 1410004172 (Del. Super. Ct. Apr. 26, 2018) (D.I. 84) (“State’s Resp.”).

_5_

“misled the jury in his opening statement . . . [and] during closing argument.”13 He
never raised either such allegation on direct appeal. And there is no mention, from
any credible source, of an informant “Lisa Smith,” who allegedly tipped off police
and would be helpful to Mr. Walsh’s defense. Again, Mr. Walsh can hardly be
prejudiced by failure to turn over non-existent material. Nor does the trial record
reveal that Mr. Walsh’s quibbles with the wording of the prosecutor’s trial
arguments demonstrate prejudice. A prosecutor in his or her opening statement or
closing argument is “allowed and expected to explain all the legitimate inferences
of [a defendant’s] guilt that flow from th[e] evidence” adduced at trial or to be
adduced at trial.14 That is what the prosecutor did during Mr. Walsh’s trial.

(11) Rule 61 has another procedural bar that is applicable to Mr. Walsh’s
claim alleging juror intimidation: “[a]ny ground for relief that was formerly
adjudicated, whether in the proceedings leading to the judgment of conviction, in an
appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is
thereafter barred.”'5 On direct appeal, Mr. Walsh argued “that he was deprived of

his right to a fair and impartial trial because [the State’s chief investigating officer]

 

13 Def.’s Amended PRC Mot. at 15-17.

14 Johnson v. State, 711 A.2d 18, 31 (Del. 1998) (quoting Hooks v. State, 416 A.2d 189, 204
(1980)) (closing arguments); Booze v. State, 919 A.2d 561 (Del. 2007) (same for opening
statement).

'5 SUPER. CT. CRIM. R. 61(i)(4)(2017).

engaged in conduct designed to intimidate the jurors into returning a favorable
verdict for the State.”'6 And on direct appeal, the Delaware Supreme Court found
“[n]othing in the record supports [Mr.] Walsh’s claim that [the State’s chief
investigating officer] tried to intimidate the jurors” and ruled that this Court
committed “no plain error” in its handling of the issue at trial.

(12) Now, neither the procedural default nor relitigation bars “apply either
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 this rule.”17 But
Mr. Walsh does not claim that this Court lacked jurisdiction,18 that “new evidence
exists that creates a strong inference” of actual innocence,'9 or 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 [his] case and

renders [his] conviction . . . invalid.”20 Instead, Mr. Walsh either alleges anew or

 

'6 Walsh v. Szare, 2016 WL 3751911, ar *2 (Del. June 29, 2016).
17 super Ct. R. Crim. P. 61(i)(5) (2017).

'3 Del. Super. Ct. Crim. R. 61(i)(5) (“The bars to relief in paragraphs (1), (2), (3), and (4) of
this subdivision [i] shall not apply either 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 this
rule.”).

19 Del. Super. Ct. Crim. R. 61(d)(2)(i) (2017). See also id. at (i)(5).

20 Id. at(d)(z)(ii). see also id. at(i)(s).

realleges constitutional violations supposedly committed by the police or prosecutor.
That is simply not enough to overcome the Rule 61(i)(3) or (i)(4) bars to relief.

(13) Rule 6l(i)(3)’s bar is inapplicable to “claims [of] ineffective assistance
of counsel, which could not have been raised in any direct appeal.”21 ln turn, Mr.
Walsh’s IAC claims against Trial Counsel and PCR Counsel are his only remaining
claims that are not procedurally barred by Rule 61. So the Court could consider
those claims on their merits

(14) An inmate who claims ineffective assistance of counsel must
demonstrate that: (a) his defense counsel’s representation fell below an objective
standard of reasonableness, and (b) there is a reasonable probability that but for
counsel’s errors, the result of the proceeding would have been different.22 A
reasonable probability exists when there “is a probability sufficient to undermine
9,23

confidence in the outcome.

(15) There is a strong presumption that counsel’s conduct fell within a wide

range of reasonable professional assistance.24 And there is a strong presumption that

 

2' stare v. Smi¢h, 2017 wL 2930930, at *1 (Del. super. Ct. July 7, 2017).

22 Stricklana’ v. Washington, 466 U.S. 668, 694 (1984); see also Alston v. State, 2015 WL
5297709, at *3 (Del. Sept. 4, 2015).

23 Stricklana’, 466 U.S. at 694.

24 See id. at 689; Gam's v. stare, 697 A.2d 1174, 1184(De1. 1997).

_8_

defense counsel’s conduct constituted sound trial strategy.25 When evaluating an
attorney’s performance, a reviewing court must “eliminate the distorting effects of
hindsight,” “reconstruct the circumstances of counsel’s challenged conduct,” and
“evaluate the conduct from counsel’s perspective at the time.”26 “lt is not this
Court’s function to second-guess reasonable trial tactics.”27 For “[e]ven the best
criminal defense attorneys would not defend a particular client the same way.”28
And there is, quite simply, a wide range of legitimate decision making that might be
made by a competent attorney.29 Lastly, an inmate may not rely on conclusory
statements that he suffered ineffective assistance; he must instead plead all
allegations of prejudice with particularity.30

(16) Walsh first complains that Trial Counsel failed to pursue the non-

31

existent dashcam video and to file a related suppression motion. The decision

 

25 See Srrickland, 466 U.s. at 689; Flamer v. Sm¢e, 585 A.zd 736, 753-54 (De1. 1990).

26 Stricklana', 466 U.S. at 689.

27 State v. Drummona', 2002 WL 524283, at *l (Del. Super. Ct. Apr. 1, 2002).

28 Stricklana’, 466 U.S. at 690.

29 Ia’. at 688-89; Moore v. Deputy Commissioner(s) of SCI-Huntinga'on, 946 F.2d 236, 246
(3d Cir. 1991) (even if reviewing court would advise another course); State v. Carter, 782 N.W.2d
695, 704 (Wis. 2010) (“Indeed, counsel’s performance need not be perfect, nor even very good, to

be constitutionally adequate.”).

30 See Monroe v. State, 2015 WL 1407856, at *5 (Del. Mar. 25, 2015) (citing Dawson v.
Slale, 673 A.2d 1186, 1196 (Del. 1996)).

31 Def.’s Amended PRC Mot. at 1-4.

whether or not to file a motion to suppress is a strategic decision and a matter of
professional judgment. Such a decision will be upheld if it is reasonable.32 Trial
counsel fully investigated with Mr. Walsh “the conversations he had with any officer
who had a role in the matter. . . . After reviewing the discovery, and hearing Mr.
Walsh’s version of events regarding his interaction with officer(s) regarding his
consent to search his residence, [Trial] Counsel came to the conclusion there was no
merit to a suppression motion.”33 There is simply no evidence of substandard
representation here. And so, on this basis alone Mr. Walsh’s claim of ineffective
assistance must fail.34 But Mr. Walsh also fails to demonstrate prejudice. When
addressing this very same involuntariness claim on direct appeal, our supreme court
observed: “There is nothing in the record to support [Mr.] Walsh’s claim that his
consent to the search of his apartment was involuntary.”35 That’s still true. A
defendant cannot demonstrate prejudice by defense counsel’s failure to file a motion

to suppress if that motion were likely to fail even if it were filed.36

 

33 See Pennewell v. szare, 2005 wL 578444,31*1 (Del. Jan. 26, 2005).
33 Id.

34 See, e.g., stare v. McGlonen, 2011 wL 987534, at *4 (Del. super. Ct. Mar. 21, 2011) (“If
a defendant cannot establish both prongs, then the ineffective assistance of counsel claim fails.”).

35 Walsh v. State, 2016 WL 3751911, at *2.

36 See Poteat v. State, 2007 WL 2309983, at *1 (Del. Aug. 14, 2007); Bratcher v. Stale, 2008
WL 2475741, at *1 (Del. June 20, 2008).

_1()_

(17) Mr. Walsh’s claim that Trial Counsel should have objected to certain
of the prosecutor’s arguments is meritless37 As noted above there were no improper
statements to object to. ln turn, there could be neither deficient attorney performance
nor probable result-changing prejudice Failure to prove the existence of either
renders an IAC claim unsuccessful.38

(18) As to the disclosure of the Mr. Walsh’s prior burglary conviction at
trial,39 this occurred when the State entered evidence that Mr. Walsh was a person
prohibited from possessing a firearm in Delaware. Trial Counsel had negotiated
with the State to enter a stipulation to that status_thereby avoiding presentation of
evidence of Mr. Walsh’s prior felony conviction. Trial Counsel fully discussed that
course with Mr. Walsh and, pre-trial, the Court also addressed this specific issue.
Mr. Walsh rejected the stipulation, choosing instead to put the State to its proof.40
He can hardly complain now that his attorney needed to override his express
instruction to eschew the stipulation or be deemed to have provided constitutionally
deficient representation simply because the informed and agreed-to tactic chosen

failed. Because Mr. Walsh fails to show that trial counsel’s ability to keep the State

 

37 Def.’s Amended PRC Mot. at 4-5.
38 State v. Hamby, 2005 WL 914462, at *2 (Del. Super. Ct. Mar. 14, 2005).
39 Def.’s Amended PRC Mot. at 5-8.

40 May 12th Trial Tr. at 4-8.
_ 11 _

from presenting undoubtedly admissible evidence of an undoubtedly necessary
element was objectively unreasonable, and because trial counsel acted in accordance
with Mr. Walsh’s wishes when rejecting the favorable stipulation, this Court must
uphold counsel’s decision to not object to entry of the redacted documentation of
Mr. Walsh’s prior conviction.41

(19) Mr. Walsh’s final complaint against Trial Counsel is bare bones:
“Counsel was also ineffective when he never presented a mistake of law defense on
behalf of the defendant.”42 That’s it. With no specifics offered as to how the mistake
of law defense now suggested would have changed the outcome of his trial, Mr.
Walsh cannot succeed on a claim of ineffective assistance of counsel.43

(20) ln his last claim, Mr. Walsh alleges that his now-discharged PCR
Counsel was ineffective for not pursuing the claims he has raised in the present
amended motion. Assuming for a moment that the Court need address a claim of
ineffectiveness leveled at PCR Counsel here, Mr. Walsh would gain no relief. Each

of the claims he says PCR Counsel should have raised, he now has in the very same

 

41 Hoskz'ns v. State, 102 A.3d 724, 730 (Del. 2014) (“If an attorney makes a strategic choice
‘after thorough investigation of law and facts relevant to plausible options,’ that decision is
‘virtually unchallengeable’ . . .”).

42 Def.’s Amended PRC Mot. at 8.

43 See Als¢on v. sze, 2015 wL 5297709,61 *3 (Del. sept 4, 2015) (citing Wrigh¢ v. Sm¢e,
671 A.2d 1353, 1356 (Del. 1996)) (one claiming ineffective assistance “must make specific
allegations of how defense counsel’s conduct actually prejudiced the proceedings, rather than mere
allegations of ineffectiveness”).

_12_

procedural posture. Each has failed. Perforce, therefore, Mr. Walsh cannot
demonstrate a reasonable probability that PCR Counsel’s conduct caused a negative
outcome that would not otherwise have been reached here.44 And because Mr.
Walsh cannot demonstrate such prejudice, any conj ected infectiveness claim against
PCR Counsel must fail.45

(21) Having reviewed the record carefully, the Court has concluded that Mr.
Walsh’s postconviction claims are without merit. Accordingly, his Motion for

Postconviction Relief is DENIED

SO ORDERED this 26th day of September, 2018.

 

 

Paul R. Wallace, Judge
Original to Prothonotary

cc: Howard A. Walsh
Zachary Rosen, Deputy Attorney General
Ralph D. Wilkinson, Esquire
R. Joseph Hrubiec, Esquire

 

44 See Flamer v. State, 585 A.2d 736, 755-56 (Del. 1990) (there must be a reasonable
probability that counsel’s advice or conduct caused a different outcome than otherwise would have
been reached).

45 Ploofv. State, 75 A.3d 811, 825 (Del. 2013) (“Stricklana’ is a two-pronged test, and there
is no need to examine whether an attorney performed deficiently if the deficiency did not
prejudice the defendant.”); Swan v. State, 28 A.3d 362, 383 (Del. 2011) (observing that Strickland
requires that an inmate make both showings - deficient performance and prejudice - and “‘ [i]f it
is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.”’) (quoting Strickland, 466 U.S. at 697).

_13_

