IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 091002()105
In and for Kent County

STATE OF DELAWARE,
V.

BRUCE A. ROWAN, Rape 4th < 18 (F) (5 counts)

)
)
)
) Cont Sex Abuse (F) (1 count)
)
) Breach Conditions (F) (56 counts)
)

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Amended Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Stephen R. Welch, Jr. , Esquire, Deputy Attorney General, Department of Justice,
for the State of Delaware.

Bruce A. Rowan, Pro se.

FREUD, Commissioner
November 21, 2017

The defendant, Bruce A. Rowan (“Rowan”) was found guilty, following a
jury trial on December 6, 2010, of one count of Continuous Sexual Abuse of a
Child, 11 Del. C. § 778; five counts of Rape in the Fourth Degree, 11 Del. C. §
770; and fifty-six counts of Breach of Conditions, 11 Del. C. § 2109. He Was

State v. Rowan
ID No. 0910020105
November 21, 2017

found not guilty of eleven additional counts of Rape in the Fourth Degree and eight
counts of Tampering with a Witness. Prior to trial the State dismissed one count
of Sex Offender Unlawful Sexual Contact Against a Child, one count of
Endangering the Welfare of a Child and three counts of Tampering with a Witness.
Nolle prosequis were entered on the remaining eleven counts of Tampering with a
Witness and thirteen counts of Breach of Conditions of Release. On January 19,
2011 the State filed a motion to declare Rowan an habitual offender. The Court
granted the motion on January 27, 2011 and sentenced Rowan to a total of 395
years incarceration suspended after serving 120 years, for probation.

A timely Notice of Appeal was filed with the Delaware Supreme Court by
Rowan’s initial Appellate Counsel, Bernard J. O’Donnell, Esquire along with a
Motion to Withdraw as Counsel pursuant to Supreme Court Rule 26(c). In an
Order dated October 19, 2011, the Supreme Court granted Mr. O’Donnell’s motion
to withdraw but simultaneously appointed Alexander W. Funk, Esquire to represent
Rowan in his direct appeal.1 In the appeal the following claims were raised that the
Superior Court erred in: (1) denying Rowan’s motion to dismiss; (2) admitting in
to evidence tape recordings of his telephone calls from prison to the victim and (3)
admitting into evidence bond paperwork from the Justice of the Peace Court. The
Delaware Supreme Court found no merit in any of the claims and affirmed Rowan’s

conviction and sentence on May 18, 2012.2

 

1 Rowan v. State, Del. Supr., No. 95, 2011, Ridgely, J (Oct. 19, 2011)(ORDER).
2 Rowan v. State, 2012 WL 1795829 (Del. Supr.).

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After attempting to file several nonconforming motions for postconviction
relief and motions for appointment of counsel, Rowan finally filed a conforming
motion for postconviction relief pursuant to Superior Court Criminal Rule 61 along
with a memorandum of law on May 15, 2013, pro se. He raised nine grounds for
relief including ineffective assistance of counsel. On May 28, 2013 Rowan filed
a conforming motion for appointment of counsel which was granted by the Court.
Natalie S. Woloshin, Esquire (“Appointed Counsel”) was appointed to represent
Rowan on July 29, 2015. After an extremely thorough and conscientious review
of the facts, the record and the law in the case, Appointed Counsel filed a motion
to withdraw as counsel having concluded that the motion was wholly without merit
and that no meritorious grounds for relief existed. Rowan was sent a copy of the
motion to withdraw and given 30 days to file a response. Appointed Counsel’s
motion to withdraw was granted by the Court on October 27, 2015.

Next Rowan moved to have a substitute counsel appointed which was denied
by the Court on November 19, 2015. Next Rowan moved to amend his pro se
motion for postconviction relief on August 11, 2016. After several revised brief

schedules the matter finally completed briefing and was sent for decision.

FACTS
Following are the facts as set forth by the Delaware Supreme Court:

2) In January 2009, when Rowan was 41 years old, he
began a sexual relationship with Jane Carson,FNI who told
Rowan she was 23, but actually was 16 years old. In
April 2009 Carson became pregnant with Rowan’s child

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ID No. 0910020105
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and Rowan moved in with her. Shortly after becoming
pregnant, Carson told Rowan her real age. Rowan
moved out and began a relationship with another woman.
Carson then contacted the police. After the baby was
born, a DNA test confirmed that Rowan is the father.

3) On October 30, 2009, Rowan was arrested an
arraigned at the police station via video phone connection
with the Justice of the Peace Court. The court faxed
Rowan a bond form, which he signed, that included an
order prohibiting contact between Rowan and Carson.
Rowan was incarcerated in default of $201,000 cash bail.
He was indicted on December 7, 2009, and the Superior
Court issued a summons ordering Rowan to be present at
his arraignment on December 17, 2009, Rowan’s counsel
was not available on that date, and the arraignment was
passed to the initial case review on December 28, 2009,

4) On December 22, 2009, Rowan was released from
prison based on a disposition form submitted by the Court
of Common Pleas - apparently in error. At the December
28 arraignment and case review, bond was set at
$270,000 cash. Rowan was unable to post bond and
again was incarcerated. Neither the court nor the State
address the no-contact order.

5) Rowan was re-indicted on September 7, 2010, The 56
counts of breach of condition of release related to
Rowan’s telephone contact with Carson from prison after
his arraignment on December 28“‘. He went to trial in
December 2010 and was convicted on all of the breach of

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ID No. 0910020105
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condition charges.3

FNl This Court sua sponte has assigned a pseudonym pursuant to
Supr. Ct. R. 7(d).

ROWAN’S CONTENTIONS
In his amended motion, Rowan raises the following grounds for relief:

Ground one: Defense attorney’s failures to act
within a reasonable scope of his
professional duties violated
Defendant’s right to effective
assistance of counsel. U.S.C.A 6 and
14.

Groundtwo: Defense Counsel failed to secure a
copy of plea offer in writing or
properly discuss same in regards to
submission possible alternatives in
conjunction with plea. U.S. Const.
Amend 6 and 14.

Ground three: Trial Court error; Prosecutorial Mis-
conduct; Ineffective Assistance of
Counsel occurred when juvenile
statements was never ‘evaluated’ and
improperly admitted. U.S. Const.
Amend. 6 and 14.

 

3 Rowan, 2012 WL 1795829, at *1.

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ID No. 0910020105
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Ground four:

Ground five:

Ground six:

Ground seven:

Ground eight:

Ground nine:

In-court identification of Defendant by State’ s
witness violated Defendant’s right to a fair
trial, when there was no ‘independent origin’
for this ‘In-court’ identification U.S. Const.
Amend. 6 and 14.

Trial Court error; Ineffective Assistance of
Counsel for failure to object to introduction of
prior bad acts, or request a hearing (404)
under DeShielcls v. State, Del. Supr. 706 A.2d
502.

Trial Court abused its discretion when it
denied Defendant’ s Motion to Dismiss Breach
of Conditions charges. U.S. Const. Amend.
14.

Trial Court abused its discretion when it
denied Defendant’s De Minimis Defense
based on model penal code § 2.12. U.S.
Const. Amend. 6 and 14.

Trial Court abused its discretion when it
failed to conduct a proper sentencing colloquy
and also sentence Defendant with a closed
mind. U.S. Const. Amend. 6 and 14.

The State never proved the 15 counts of Rape
4“‘. Ineffective Assistance of counsel occurred
when he never requested for an acquittal and
or lesser included offense instruction U.S.
Const. Amend. 6 and 14.

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ID No. 0910020105
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DISCUSSION
Under Delaware law, the Court must first determine whether Rowan has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of the postconviction relief claims.4 Under Rule 61,
postconviction claims for relief must be brought within one year of the conviction
becoming final.5 Rowan’s motion was filed in a timely fashion, thus the bar of Rule
61(i)(1) does not apply to the motion. As this is Rowan’s initial motion for
postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any
claim not previously asserted in a postconviction motion, does not apply either.
Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for relief
from the procedural default; and (2) prejudice from a violation of the movant's ri ghts.6
The bars to relief are inapplicable to a jurisdictional challenge or “to a colorable claim
that there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.”7

Rowan’s first, second, third, fourth, fifth and ninth grounds for relief are

 

4 Bail€y v. Slafe, 588 A.2d 1121, 1127 (Del. 1991).
5 Super. Ct. Crim. R. 61(i)(1).
6 Super. Ct. Crim. R. 61(i)(3).

7 Super. Ct. Crim. R. 61(i)(5).

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premised on allegations of ineffective assistance of counsel. Therefore Rowan has
alleged sufficient cause for not having asserted these grounds for relief at trial and on
direct appeal.

Rowan’s sixth ground for relief is simply a restatement of the argument he
previously raised in his direct appeal. Superior Court Criminal Rule 61 (i)(4) bars any
ground for relief that was formerly adjudicated unless reconsideration of the claim is
warranted in the interest of justice.8 Rowan raised this claim before and the Delaware
Supreme Court found it meritless. Rowan has made no attempt to argue why
reconsideration of this claim is warranted in the interest of justice. The interest of
justice exception of Rule 61(i)(4) has been narrowly defined to require that the
movant show that “subsequent legal developments have revealed that the trial court
lacked the authority to convict or punish” him.9 Rowan has made no attempt to
demonstrate why this claim should be revisited. This Court is not required to
reconsider Rowan’s claim simply because it is “refined or restated.”10 For this reason,
this ground for relief should be dismissed as previously adjudicated under Rule
61(i)(4).

Rowan’ s seventh and eighth claims were not previously raised and he has given

no reason for the failure to have raised them earlier. They are therefore clearly barred

 

8 Super. Ct. Crim. R. 61(i)(4).

9 Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
726, 746 (Del. 1990)).

10 Riley v. State, 585 A.2d 719, 721 (Del. 1990).

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by Superior Court Criminal Rule 61(i)(3) for failure to demonstrate cause and
prejudice for his failure to have raised them earlier.

Rowan’s ineffective assistance of counsel claims are not subject to the
procedural default rule, in part because the Delaware Supreme Court will not
generally hear such claims for the first time on direct appeal. For this reason, many
defendants, including Rowan, allege ineffective assistance of counsel in order to
overcome the procedural default. “However, this path creates confusion if the
defendant does not understand that the test for ineffective assistance of counsel and
the test for cause and prejudice are distinct, albeit similar, standards.”ll The United
States Supreme Court has held that:

[i]f the procedural default is the result of` ineffective
assistance of counsel, the Sixth Amendment itself requires
that the responsibility for the default be imputed to the
State, which may not ‘conduc[t] trials at which persons
who face incarceration must defend themselves without
adequate legal assistance;’ [i]neffective assistance of
counsel then is cause for a procedural default.12

A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the

mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant

 

n State v. Gattis, 1995 WL 790961 (Del. Super.).
12 Murray v. Carrier, 477 U.S. 478, 488 (1986).

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ID No. 0910020105
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must engage in the two part analysis enunciated in Strickland v. Washington'3 and
adopted by the Delaware Supreme Court in Albury v. State.14

The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness15
Second, under Strickland the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.16 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.17

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established18 However, the showing of prejudice is so central
to this claim that the Strickland court stated "[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect

 

,_.

3 466 U.S. 668 (1984).

14 551 A.2d 53, 58 (Del. 1988).

,_.

5 Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
16 Id.

17 See e.g., 0utten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State,
1995 WL 466465 at *1 (Del. Supr.)).

18 srrickland, 466 U.s. at 687.
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ID No. 0910020105
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will often be so, that course should be followed."19 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation were true, the Court may dispose of the claim on this basis
alone.20 Furthermore, Rowan must rebut a "strong presumption" that trial counsel’s
representation fell within the "wide range of reasonable professional assistance," and
this Court must eliminate from its consideration the "distorting effects of hindsight
when viewing that representation."21

Tuming briefly to Rowan’s specific claims he makes a number of allegations
that Trial Counsel acted ineffectively at trial, including claims that he did not
adequately investigate the case and prepare it for trial. However, Rowan fails to
identify how he was prejudiced by any of these alleged deficiencies As Appointed
Counsel noted in her Motion to Withdraw, Trial Counsel “was confronted with an
indefensible case.” Rowan, age 42, had fathered a child with a 16 year old victim.
Patemity was established by DNA. Rowan then repeatedly contacted the victim from
prison, in violation of a no-contact order; these phone calls were recorded. Appointed
Counsel also states that she conducted an extensive review of the record and

concluded that Trial Counsel “zealously advocated for Mr. Rowan’s interests.”

Rowan’ s second claim is that Trial Counsel acted ineffectively when he failed

 

19 Id. at 697.
20 State v. Gattis, 1995 WL 790961 (Del. Super.).
21 Sl‘l'ickldnd, 466 U.S. at 689; Wl'ighl‘ v. State, 671 A.2d 1353, 1356 (D€l. 1996).

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to secure a plea offer for Rowan or “properly discuss same” with him. These claims
are false, as established by paragraph two of Trial Counsel’s affidavit of November
28, 2016.

Rowan’s third claim is that the victim’s statement was improperly admitted at
the trial and that the prosecutor at trial engaged in acts of misconduct However, the
victim in this case testified at trial and her prior statements to police were properly
admitted in evidence pursuant to 1 1 Del. C. § 3507.22 Rowan never clearly identifies
what sort of professional misconduct or Brady violation supposedly occurred.

Rowan’s fourth claim is that the victim’s in-court identification of him was
improper because there was no “independent origin” for the identification This claim
is misplaced, however. The question of whether there is an “independent origin” for
an in-court identification legitimately may arise when a witness has engaged in an
unnecessarily suggestive out-of-court identification procedure and then is asked
during trial to identify the defendant.23 However, there was no such issue presented
in Rowan’s case since he was well-acquainted with the victim, Was involved in a
relationship with her, and had fathered a child by her. There is no question that she
had an adequate basis to identify him in Court.

Rowan’s fifth claim is that Trial Counsel should have attempted to exclude

evidence of “prior bad acts” at his trial. However, it does not appear that any such

 

22 See Appointed Counsel’s Motion to Withdraw, pp. 10 - 13.
23 See, e.g. Jenkins v. State, 281 A.2d 148 (Del. 1971).

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evidence was presented at Rowan’s trial, as noted by Appointed Counsel in her
motion to withdraw. It is true that Count One of the indictment (and re-indictment)
was a charge of “Sex Offender Unlawful Sexual Contact Against a Child.” An
element of this offense as charged was an allegation that Rowan “was previously
convicted for a sex crime.” However, it appears that this charge was dismissed prior
to trial and that “Count One” which was presented to the jury was actually Count Two
in the indictment24

Rowan’s sixth claim is that his Motion to Dismiss of December 7, 2010 should
have been granted. However, a review of the motion clearly establishes that it was
without a legal basis and that it essentially asked the Court to nullify Delaware
statutes which prescribed Rowan’s conduct. This claim is frivolous and is as noted
previously a restatement of his argument on direct appeal.

Rowan’s seventh claim is that the Court abused its direction by rejecting his
“de minimis” defense. However this claim is without merit, since it is based on the
Model Penal Code rather than on a Delaware statute. For this reason, it has no legal
basis. Rowan’s allegations that his conduct was “consistent with rural-American
cultural practices” or that he and the victim were supposedly “already married under
an America cultural practice” simply did not provide a valid defense at trial. With
good reason, therefore, the Trial Court repeatedly rejected the “de minimis” defense.

Rowan and the victim were not married, and rural American cultural practices do not

 

24 See pp. A001, A275 of Appointed Counsel’s Appendix to motion to withdraw.
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ID No. 0910020105
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override or invalidate Delaware statutes.

Rowan’s eighth claim is that Superior Court sentenced him with a “closed
mind.” This is a conclusory allegation without any apparent basis in fact. Rowan
does not provide a basis for this assertion

Rowan’s ninth claim in his original motion is that the State did not prove all
fifteen counts of Rape in the Fourth Degree and that Trial Counsel was ineffective
because he (1) did not make a motion for judgment of acquittal, and (2) did not seek
to have the jury charged on lesser-included offenses. It is true that the jury only
convicted Rowan of five counts of Rape in the Fourth Degree. The evidence
supporting these convictions consisted of statements made by the juvenile victim to
the police, her testimony at trial, and the fact that she had been impregnated by
Rowan Clearly, there was sufficient evidence to support the convictions. Trial
Counsel did in fact make a motion for judgment of acquittal, which was denied.
There was no basis for the Court to charge the jury at trial with lesser-included
offenses of the Rape in the Fourth Degree charges. Rowan either had sex with the
victim or he did not. There was no rational basis for the jury to acquit him of Rape
in the Fourth Degree but convict him of Unlawful Sexual contact.25

In addition to the foregoing, on August 9, 2016 Rowan filed a “Motion to
Amend Motion of Postconviction Relief” which argues that two of the statutes under

which he was convicted are unconstitutional because the “[lack] the [requisite]

 

25 See 11 Del. C. § 206(c).
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doctrine of mens rea.” His point seems to be that the statutes are unconstitutional
because they do not make an offender’s knowledge of` a victim’s age an element of
either offense and do not allow lack of knowledge of a victim’s age to be asserted as
a defense at trial. However, Rowan provides no legal authority or argument in
support of his claim that the Delaware statutes are unconstitutional. His argument
does not have a legal basis.

Rowan has also filed a lengthy “Memorandum of Law,” dated July 29, 2015,
in support of his Rule 61 motion The arguments advanced in the memorandum are
specious. The fact is that the victim in this case was sixteen years old when Rowan,
who was in his forties, engaged in sexual intercourse with her. Any mistake which
he supposedly made with regard to her age could not provide a defense at trial.26
Additionally, as much as Rowan may want to argue the point, the fact is that he and
the victim were not legally married when the crimes were committed.

’ Following a complete review of the record in this matter, it is abundantly clear
that Rowan has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective I find Trial Counsel’s affidavit and Appointed Counsel’s
motion to withdraw, in conjunction with the record, more credible than Rowan’ s self-
serving claims that his trial counsel’s representation was ineffective. Rowan’s Trial
Counsel clearly denies the allegations. Furthermore, Appointed Counsel thoroughly

reviewed the record in this case and concluded that none of Rowan’s claims were

 

26 11Del. C. § 762(a).

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meritorious and that no other meritorious claims could be found.
CONCLUSION

After reviewing the record in this case, it is clear that Rowan has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). A review of his
Trial Counsel’s affidavit, Appointed Counsel’s motion to withdraw and the record
clearly shows that counsel represented Rowan in a competent fashion and was not
ineffective. Additionally, Rowan has failed to demonstrate any concrete prejudice.
Consequently, I recommend that Rowan’s motion be denied as procedurally barred
by Rule 61(i)(3) for failure to prove cause and prejudice and previously adjudicated

under Superior Court Criminal Rule 61(i)(4).

/Q/ Andrea M Freml
Commissioner

AMF/dsc

16

