IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)

v. ) I.D. Nos. 1602017642

) 1603014983
JERMAINE FERGUSON, )
)
Defendant. )

Submitted: August 18, 2017
Decided October 3, 2017

Upon Defendant’s Motion for Postconviction Relief,

DENIED.

M

Timothy Maguire, Esquire, Deputy Attorney General, Department of Justice, 820
North French Street, Wilmington, DE 19801, Attorney for the State.

Jermaine Ferguson, HoWard R. Young Correctional Institution, P.O. BoX 9561,
Wilmington, DE 19809

WHARTON, J.

This 3rd day of October, 2017, upon consideration of Defendant Jermaine
Ferguson’s (“Ferguson”) timely pro se Motion for Postconviction Relief
(“Motion”),1 Affldavit of John S. Malik, Esquire,2 the State’s Response3 and the
record in this matter, it appears to the Court that:

1. Ferguson Was indicted by the Grand Jury in two indictments on various
drug and other charges. On October 13, 2016, Ferguson pled guilty to two separate
counts of Drug Dealing and a single count of Conspiracy Second Degree.4 All other
charges against him in both indictments Were dropped. On December 16, 2016, the
Court sentenced him to flve years of incarceration as a habitual offender under ll
Del. C. § 4214(a) on one count of Drug Dealing, and a total of ll years of
incarceration, suspended for decreasing levels of supervision on the other charges.5
Ferguson did not appeal his convictions or sentences to the Delavvare Supreme
Court. This Motion pursuant to Superior Court Criminal Rule 6l, his first, Was filed
timely on January 18, 2017.6 Ferguson did not request appointment of counsel. A
subsequent Motion for Reduction of sentence Was denied on March 20, 2017. At

the Court’s direction, trial/plea counsel John S. Malik, Esquire submitted his

 

1D.I. 27 (1602017642), D.I. 21 (1603014983). For simplicity, the Court Will
hereafter reference docket items in I.D. No. 1602017642 unless otherwise
indicated

2D.I. 34.

3 D.I. 36.

4 D.I. 22.

5D.I. 20 (1603014983).

6D.I. 27.

affidavit in response to the Motion.7 On May 24, 2017, the State submitted its
response.8 The Court ordered a transcript of Ferguson’s plea colloquy Which Was
filed on August 18, 2017.

2. In his PCR Motion, Ferguson raises three claims of ineffective
assistance of counsel: l) counsel failed to move to suppress unspecified “key”
evidence Which Would have “brought to light” violations of his Fourth and
Fourteenth Amendment rights; 2) counsel failed to provide him With discovery and
Brady material thereby denying him an opportunity to prepare for trial and denying
him his SiXth Amendment rights; and 3) counsel manipulated him into pleading
guilty to a charge for Which he Was not indicted by telling him that he Was going to
retain a “sentence mediator” to “mediate the process” and move for “the judge to
read the contents of the case since the part [Ferguson] played Was mediocre.”9

3. Before addressing the merits of a defendant’s motion for postconviction
relief, the Court must first apply the procedural bars of Superior Court Criminal
Rule 6l(i).10 If a procedural bar exists, then the Court Will not consider the merits of
the postconviction claim.11

4. Under DelaWare Superior Court Rules of Criminal Procedure, a motion

for post-conviction relief can be barred for time limitations, successive motions,

 

7D.I. 34.

8 D.I. 36.

9 D.I. 27. As an aside, the charge for Which Ferguson claims to have not been
indicted Was a lesser included offense of an indicted charge.

1° Younger v. State, 580 A.2d 552, 554 (Del. 1990).

11 Id.

procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a
newly recognized, retroactively applied right more than one year after it was first
recognized12 A second or subsequent motion is considered successive and therefore
barred and subject to summary dismissal unless the movant was convicted after a
trial and “pleads with particularity that new evidence exists that the movant is
actually innocent” or “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 renders the conviction invalid.”13 Grounds for relief “not asserted in the
proceedings leading to the judgment of conviction” are barred as procedurally
defaulted unless the movant can show “cause for relief’ and “prejudice from [the]
violation.”14 Grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.15 These
bars to relief may be overcome, however, if the claim is jurisdictional or if it pleads

with particularity a claim of a strong inference of actual innocence based on new

 

12 Super. Ct. Crim. R. 6 l(i)( l ).
13 Super. Ct. Crim. R. 6 l (i)(2); Super. Ct. Crim. R. 61(d)(2).
14 Super. Ct. Crim. R. 6 l (i)(3).
15 Super. Ct. Crim. R. 6 l (i)(4).

evidence or a new retroactive rule of constitutional law applying to the movant’s
case that renders the conviction invalid.16

5. This Motion is a timely first motion for postconviction relief, alleging
ineffective assistance of counsel. Accordingly, the Court will consider the motion
on its merits.

6. To successfully bring an ineffective assistance of counsel claim, a
claimant must demonstrate: 1) that counsel’s performance was deficient; and 2) that
the deficiencies prejudiced the claimant by depriving him or her of a fair trial with
reliable results.17 To prove counsel’s deficiency, a defendant must show that
counsel’s representation fell below an objective standard of reasonableness18
Moreover, a defendant must make concrete allegations of actual prejudice and
substantiate them or risk summary dismissal.19 “[A] court must indulge in a strong
presumption that counsel’s conduct falls within the wide range of reasonable

”20 A successful Sixth Amendment claim of ineffective

professional assistance
assistance of counsel requires a showing “that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”21 When addressing the prejudice prong of the ineffective assistance of

counsel test in the context of a challenged guilty plea, an inmate must show “that

 

16 Super. Ct. Crim. R. 61(i)(5), citing R. 61(d)(2)(i) and (ii).
17Stricklana’ v. Washington, 466 U.S. 668, 688 (1984).
181d. at 667-68.

19 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

211 Stricklana’, 446 U.S. at 689.

21Ia’. at 694.

there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.”22 An inmate must satisfy
the proof requirements of both prongs to succeed on an ineffective assistance of
counsel claim. Failure to do so on either prong will doom the claim and the Court
need not address the other.23 Ferguson cannot demonstrate that counsel’s
performance was deficient, that he was prejudiced by counsel’s alleged
ineffectiveness, or that he would have insisted on going to trial.

7. Trial/plea counsel responded to each of Ferguson’s claims of ineffective
assistance of counsel. With regard to Ferguson’s claim that counsel failed to seek
suppression of unspecified “key” evidence, counsel addresses Ferguson’s arrest for
the charges in each indictment As to I.D. No. 1603014983 counsel states that
Ferguson was stopped for driving an unsafe motor vehicle due to an item hanging
out of the right side rear window.24 A license check determined that Ferguson’s
driver’s license was suspended.25 Additionally the officer observed in plain view a
large quantity of what appeared to be marijuana in small pieces throughout the

vehicle and on Ferguson’s clothing.26 Ferguson gave the officer permission to

 

22Albwjy v. State, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52,
58 (1985)); Sartz'n v. State, 2014 WL 5392047, at *2 (Del. Oct. 21, 2014); State v.
Hackett, 2005 WL 30609076, at *3 (Del. Super. Ct. Nov. 15, 2005).

21 Stricklana’, 466 U.S. at 697;P100fv. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland 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.”).
24D.I. 34 at 2.

15 Id.

1610,’.

search the vehicle and told the officer that there were 40 Oxycodone pills inside of a
sock on the floorboard on the driver’s side of the vehicle.27 Ferguson gave the
officer additional permission to retrieve the sock which contained Oxycodone and
Methadone pills.28 Further, Ferguson had $700.00 on his person and an additional
$3,201.00 was found in the vehicle.29 Counsel explained that he did not move to
suppress the evidence in this case because there was a valid reason for the initial
stop of Ferguson, his arrest for driving while suspended would have justified an
inventory search of the vehicle, Ferguson admitted to having marijuana in the
vehicle, and Ferguson consented to a search of the vehicle,30 Ferguson’s arrest in
I.D. No. 1602017642 occurred six months after he was audio and video recorded
selling 60 Oxycodone pills to a confidential source.31 The delay between the crime
and Ferguson’s arrest was due to the ongoing investigation of his co-defenc_lants.32
After his arrest, Ferguson waived his Mz`randa rights and confessed to the previously
recorded sale.33 Counsel did not move to suppress Ferguson’s confession because it
was given after having knowingly, intelligently and voluntarily waiving his ]\liranda

rights.34

 

21Ia’. at 2-3.
18 Id. at 3.
29Id.

301a’.

31Id. at 4.
32Ia’. at 5.
33Id.

34Ia’.

8. In response to Ferguson’s claim that he was not provided copies of his
discovery materials, counsel explained that he has discontinued his practice of
providing copies to clients because the State has begun requesting that counsel not
provide copies of certain reports to defendants and because of the risk that
discovery materials might appear on social media.35 Instead, counsel met with
Ferguson on seven occasions between August 15, 2016 and October 12, 2016.36
At those meetings, counsel discussed the strength of the State’s case, the absence of
a basis to file a suppression motion, the evidence the State would present at trial(s),
the difficulty in presenting any meritorious defense at trial, the plea offers extended
to Ferguson, his status as a habitual offender, and the State’s sentencing

recommendations37

While he did not provide copies of the State’s discovery
materials to Ferguson, he did summarize those materials so that Ferguson could
make an informed decision whether or not to accept the State’s plea offer.38

9. Finally, counsel discussed the sentencing implications of Ferguson’s
status a habitual offender with him.39 While he discussed the role of a mitigation

specialist with Ferguson, counsel did not promise to retain one, nor did Ferguson

advise counsel that his acceptance of a plea was contingent on a mitigation specialist

 

35 Id. at 4-5. The Court notes that the State is not obliged to provide police reports
in discovery under Superior Court Rule 16 and could discontinue its routine
practice of providing them if it believes that reports are being misused by
defendants

361d. at 6.

31 Id.

311101. at 6-7.

39Ia’. at 7.

being retained.40 Based on his experience with similarly situated defendants,
counsel did not believe that a mitigation specialist’s input would have resulted in a
lesser sentence.41

10. For its part, the State argues that Ferguson’s complaints that counsel
failed to provide him with discovery materials thereby denying his rights under the
6th Amendment and that counsel coerced him into accepting the plea offer are barred
by Rule 61(i).42 The State also argues that Ferguson’s ineffective counsel claim
based on a failure to file a suppression motion lacks merit because he waived any
suppression claims when he pled guilty, he failed to articulate any particular basis to
suppress any specific evidence, and, in any event, there were no meritorious grounds
to support the filing of a suppression motion.43

11. Ferguson has failed to meet Strickland ’s performance prong. The Court
has read both affidavits of probable cause, the police reports in each case as
contained in the presentence report, Mr. Malik’s affidavit and the State’s response,
and can discern no basis to move to suppress any of the incriminating evidence
against Ferguson. Further, Ferguson does not specify with any particularity what
bases might exist to suppress any evidence. Not filing a suppression motion lacking

in merit simply is not a performance deficiency.

 

411 Id.

41Id. at 7.

42D.I. 36 at 4-5.
431d. at 6-8

12. Ferguson claims that Mr. Malik’s representation was deficient because
Mr. Malik did not provide him with copies of the discovery materials that the State
had provided to Mr. Malik. Ferguson does not specify what information, as opposed
to information, Mr. Malik withheld from him. Mr. Malik, on the other hand,
responded by saying that he met with Ferguson on seven occasions and fully
discussed all aspects of his case with him. Ferguson seems to confuse a right to
information with the right to written copies of that information He has a right to the
former, but not the latter. Mr. Malik’s representation was not deficient in the
manner by which he provided Ferguson with information about his case.

13. Ferguson’s last argument is that Mr. Malik was ineffective in failing
to retain a mitigation specialist for sentencing and failing to “have a motion for the
Judge to read the contents of the case since the role [he] played was mediocre.”44
Apart from the fact that there is no such motion as a “motion for the judge to read
the contents of the case,” such a motion would have been unnecessary in any event.
The Court read the presentence report which contained all of the police reports
generated in both cases as well as an earlier presentence report, a previous psych-
forensic evaluation and multiple violation of probation reports. Again, Ferguson
does not specify what information Mr. Malik should have been brought to the

Court’s attention that he did not. Mr. Malik’s assessment that the input of a

mitigation specialist would not have resulted in a lesser sentence was a reasonable

 

44D.I. 27.
10

exercise of his professional judgment. Further, the decision, in and of itself, not to
retain a sentencing mitigation specialist to submit a report to the Court is not
performance deficiency, since such reports are the exception, and not the rule. Also
worth noting is that in the plea colloquy45 and on the Truth in Sentencing Guilty
Plea Form, Ferguson affirmed that no one had promised him anything not stated in
the plea agreement, that no one, including Mr. Malik, had threatened or forced him
to enter his pleas, and that he was satisfied with Mr. Malik’s representation of him
and that Mr. Malik had fully advised him of his rights.46

14. Ferguson fails to meet the Strickland’s prejudice prong as well, most
obviously because there was no performance deficiency by his attorney. There can
be no prejudice to Ferguson as a result of counsel’s unprofessional errors if there
were no unprofessional errors in the first place. More specifically, apart from
generalized allegations of prejudice as a result of claimed violations of certain of his
constitutional rights, Ferguson does not connect any particular alleged deficiency on
Mr. Malik’s part with any particularized harm to him. Moreover, there is no
question, after a review of the plea colloquy, Plea Agreement and Truth in
Sentencing Guilty Plea Form, but that Ferguson entered his guilty pleas freely,
voluntarily, and intelligently with a full understanding of the consequences
Accordingly, there is no reason to believe that, but for counsel’s claimed errors,

Ferguson would not have pled guilty.

 

45D.I. 22.
46 D.I. 37, at 7, 10.

11

THEREFORE, because Ferguson was not denied the effective assistance of

counsel, the Defendant’s Motion for Postconviction Relief is DENIED.

7¢./'#~'

Ferrisl,/W. Whartbn, Jl'

IT IS SO ORDERED.

oc: Prothonotary
cc: John S. Malik, Esquire
Investigative Services

12

