      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                      IN AND FOR NEW CASTLE COUNTY

                                          )
STATE OF DELAWARE                         )
                                          )      I.D. No. 1401002421
         v.                               )
                                          )
THOMAS D. ALSTON,                         )
                                          )
                        Defendant.        )


                            Submitted: September 21, 2015
                             Decided: December 16, 2015

                  On Defendant’s Motion for Postconviction Relief.
                                   DENIED.

                                     ORDER
Karin M. Volker, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Thomas D. Alston, Howard R. Young Correctional Center, Wilmington,
Delaware, pro se.

COOCH, R.J.

     This 16th day of December, 2015, upon consideration of Defendant’s
Motion for Postconviction Relief, it appears to the Court that:

         1.      Thomas D. Alston (“Defendant”) pleaded guilty to Attempted
                 Rape Second Degree on March 3, 2015.1 On May 13
                 Defendant filed a pro se Motion to Withdraw Guilty Plea. In
                 his Motion to Withdraw Guilty Plea, Defendant asserted that he
                 received ineffective assistance of counsel, because his attorney


1
    Plea Agreement at 1, D.I. 40.
              did not file a motion for speedy trial. 2 A hearing was held by
              this Court on June 25 and Defendant’s Motion to Withdraw was
              denied for lack of merit. Immediately Afterwards, Defendant
              was sentenced by this Court to six years at Level V with
              decreasing levels of supervision to follow. 3

       2.     On August 26, 2015, Defendant filed a Motion for
              Postconviction Relief (“Motion”). In his Motion, Defendant
              claimed he is entitled to relief for violations of due process,
              speedy trial, and ineffective assistance of counsel. Defendant
              stated in his first ground for relief, which he titled “Motion for
              violation of due process and speedy trial,” that he has
              “documents of [his] defense which would show beyond a
              reasonable doubt the outcome of the process would have been
              different with compotent [sic] advice.”4

       3.     Defendant contended in his second ground that his counsel was
              ineffective because “[his] lawyer deliberately and recklessly
              with held [sic] information from the Judge and DA (such as on
              three separate times [he] asked for a lie detector test in which
              [counsel] said to [him] that it didn’t matter).” 5

       4.     Next, Defendant asserted, “[his] lawyer stated that it didn’t
              matter whether [he] had a good defense or not, or telling the
              truth. The fact that [the victim] was a juvenile and [he] being a
              felon a jury would find [him] guilty at trial.” 6

       5.     Finally, Defendant stated:

                      [he is] claiming that [his] counsel[‘]s ine[f]fectiveness
                      caused [him] to plead guilty despite [his] documents of
                      defense which would have knowingly lead to an acquittal.
                      [He] was prejudiced by counsel[‘s] deficient performance
                      in advising [him] to take a plea of guilt[y] of a minimum of
                      10 to 25 y[ea]rs when in[]fact the sentence carried 2 y[ea]r



2
  Def’s. Mot. to Withdraw Guilty Plea, D.I. 46.
3
  Sentencing Order, D.I. 49.
4
  Def’s. Mot. for Postconviction Relief, at 3.
5
  Id.
6
  Id.
                                            2
                      minimum with 2 to 5 y[ea]rs TIS [guideline], but sentenced
                      to 6 plus 2. 7

       6.     Defendant’s first assertion that he suffered a violation of due
              process and right to a speedy trial is without merit. Defendant’s
              statement that he is in possession of documents that “would show
              beyond a reasonable doubt the outcome of the process would
              have been different” is conclusory. Defendant does not name or
              attempt to describe these documents. Furthermore, Defendant’s
              Motion to Withdraw Guilty Plea was based on a violation of his
              right to speedy trial. In this Motion, Defendant does not assert
              any new grounds that would justify revisiting that issue.
              Therefore, Defendant’s arguments that his rights to due process
              and a speedy trial were violated are without merit.

       7.     Similarly, Defendant’s assertions that his counsel performed
              ineffectively also lacks merit. To successfully bring an
              ineffective assistance of counsel claim, a claimant must
              demonstrate: (1) that counsel’s performance was deficient; and
              (2) the deficiencies prejudiced the claimant by depriving him or
              her of a fair trial with reliable results.8 To prove counsel’s
              deficiency, a defendant must show that counsel’s representation
              fell below an objective standard of reasonableness. 9 Moreover, a
              defendant must make concrete allegations of actual prejudice and
              substantiate them or risk summary dismissal. 10 “[A] court must
              indulge a strong presumption that counsel's conduct falls within
              the wide range of reasonable professional assistance.” 11

       8.     A successful Sixth Amendment claim of ineffective 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.” 12 Furthermore, when a
              defendant voluntarily signs a plea agreement, that defendant is
              “bound by those statements in the absence of clear and


7
  Id.
8
  Strickland v. Washington, 466 U.S. 668, 688 (1984).
9
  Id. at 667-68.
10
   Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
11
   Strickland, 466 U.S. at 689.
12
   Id. at 694.
                                           3
               convincing proof to the contrary and he bears the burden of
               presenting such proof.” 13

       9.      Defendant’s contentions that counsel withheld information by
               not having Defendant submit polygraph evidence; informed him
               that the jury would be likely to convict him; and his counsel’s
               ineffectiveness caused him to plead guilty are vague, conclusory,
               and do not satisfy the first prong of Strickland. In addition to the
               strong presumption that counsel’s conduct fell into the wide
               range of acceptable assistance, Defendant voluntarily signed a
               plea agreement. Defendant has not presented any evidence that
               is clear and convincing to this Court that he should not be bound
               to those voluntarily-given statements. Defendant has failed to
               substantiate any concrete showing of actual prejudice.
               Therefore, without more, this Court can find no basis for relief
               on Defendant’s claims.

       10.     Finally, the Court notes that this is Defendant’s first Motion and
               was timely filed. In situations such as this, it is within the
               Court’s discretion to appoint or not appoint counsel. The Rule
               states:

                       First postconviction motions in guilty plea cases. The judge
                       may appoint counsel for an indigent movant's first timely
                       postconviction motion and request for appointment of
                       counsel if the motion seeks to set aside a judgment of
                       conviction that resulted from a plea of guilty or nolo
                       contendere only if the judge determines that: (i) the
                       conviction has been affirmed by final order upon direct
                       appellate review or direct appellate review is unavailable;
                       (ii) the motion sets forth a substantial claim that the
                       movant received ineffective assistance of counsel in
                       relation to the plea of guilty or nolo contendere; (iii)
                       granting the motion would result in vacatur of the judgment
                       of conviction for which the movant is in custody; and (iv)
                       specific exceptional circumstances warrant the appointment
                       of counsel. 14

       11.     This Court declines to appoint counsel for Defendant’s Motion,
               because Defendant did not make any request for representation.
13
   Smith v. State, 1990 WL 1475, at* 1 (Del. Supr. Jan. 4, 1990) (citing State v. Insley,
141 A.2d 619, 622 (Del. 1958)).
14
   Super. Ct. Crim. R. 61(e)(2) (second and third emphasis added).
                                             4
               Furthermore, even if Defendant did request that this Court
               appoint counsel, that request would have been denied.
               Defendant’s Motion fails to set forth a “substantial claim” 15 that
               he received ineffective assistance of counsel in relation to his
               guilty plea. As discussed above, Defendant’s claims are vague
               and conclusory. Also, Defendant has not asserted the existence
               of any exceptional circumstances that warrant the appointment of
               counsel.

Therefore, Defendant’s Motion for Postconviction Relief is DENIED.


       IT IS SO ORDERED.

                                                           ______________________
                                                             Richard R. Cooch, R.J.

cc:    Prothonotary
       Investigative Services




15
  “Substantial” is defined as: “[r]eal and not imaginary; having actual, not fictitious,
existence <a substantial case on the merits>. Black’s Law Dictionary (10th ed. 2014).
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