      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE                       )
                                        )
            v.                          )        I.D. No. 1102017217
                                        )
LUIS RIVERA,                            )
                                        )
            Defendant.                  )

                                  OPINION

                         Date Submitted: March 30, 2015
                          Date Decided: June 26, 2015

         Upon Defendant’s Motion for Postconviction Relief: DENIED.

Robert J. O’Neill, Jr., Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French Street, Wilmington, DE 19801, Attorney for the State.

Richard J. Zemble, Esquire, 1220 N. Market Street, Suite 813, Wilmington, DE
19801, Attorney for Defendant.


JURDEN, P.J.
                                   I. INTRODUCTION

       Luis Rivera filed the instant Motion for Postconviction Relief pursuant to

Superior Court Criminal Rule 61 (“Rule 61”) alleging ineffective assistance of

counsel. For the following reasons, the Motion is DENIED.

                                   II. BACKGROUND

       On October 18, 2011, a jury convicted Luis Rivera (“Rivera”) of Trafficking

in Heroin 2.5–10 grams, Possession With Intent to Deliver Heroin, Maintaining a

Dwelling for Drug Purposes, Tampering With Physical Evidence, Possession of

Drug Paraphernalia, and Unlawful Dealing With a Child. 1 On February 3, 2012,

Rivera was sentenced to a total of 30 years at Level V, suspended after 9 years for

various levels of probation. 2

       Rivera appealed the jury verdict arguing that the trial court erred in

admitting into evidence his video recorded statement to the police because he was

too intoxicated to knowingly and voluntarily waive his Miranda rights. 3        On

August 21, 2012, the Delaware Supreme Court affirmed the conviction finding that

Rivera’s claim had no merit and was waived because Rivera’s counsel was given




1
  Rivera v. State, 2012 WL 3597225 (Del. 2012).
2
  Sentencing Order, State v. Rivera, No. 1102017217 (Feb. 3, 2012) (D.I. 22).
3
  Rivera, 2012 WL 3597225, ¶ 1.
                                               2
the opportunity to present a motion to suppress before trial began, but counsel

declined. 4

       On August 7, 2013, Rule 61 Counsel assisted Rivera in filing this motion for

postconviction relief pursuant to Rule 61 (“Rule 61 Motion”).5 Rivera asserts that

Trial Counsel’s failure to file a motion to suppress Rivera’s confession violated his

implied right to effective counsel.6 On March 21, 2014, Trial Counsel filed an

affidavit in response to allegations of ineffective assistance of counsel. 7

                                    III. DISCUSSION

       Rivera’s Rule 61 Motion was stayed from May 2, 2014, until January 26,

2015, because of an intervening motion for postconviction relief filed regarding

misconduct within the Office of the Medical Examiner. That intervening motion

was withdrawn by stipulation on January 26, 2015, and therefore, the Court is now

considering Rivera’s Rule 61 Motion filed on August 7, 2013. 8

       Before addressing the merits of any claim for postconviction relief, the

Court must first determine whether any of the procedural bars under Rule 61 are



4
  Id. ¶¶ 1, 6.
5
  Motion for Post Conviction Relief Pursuant to Superior Court Rule 61, State v. Rivera, No.
1102017217 (Aug. 7, 2013) (D.I. 29) (“Def.’s Br.”).
6
  Id. at 4–7.
7
  Affidavit of John S. Edinger, Jr., Esquire, State v. Rivera, No. 1102017217 (Mar. 21, 2014)
(D.I. 36).
8
   See Stipulation, State v. Rivera, No. 1102017217 (Jan. 26, 2015) (D.I. 42). The Court is
deciding this motion pursuant to the version of Rule 61 that was in effect on August 7, 2013, the
date the motion was filed.
                                               3
applicable. 9 Rule 61(i)(1) provides that a motion for postconviction relief must be

filed within one year of a final judgment of conviction. 10 Under Rule 61(i)(2), any

ground not asserted in a prior postconviction proceeding is barred “unless

consideration of the claim is warranted in the interest of justice.” 11 Rule 61(i)(3)

bars consideration of any claim not asserted in the proceedings leading up to the

judgment of conviction unless the movant can show “cause for relief from the

procedural default” and “prejudice from violation of the movant’s rights.”12 Rule

61(i)(4) provides that any ground for relief that was formerly adjudicated is

thereafter barred “unless reconsideration of the claim is warranted in the interest of

judgment.” 13

       Even if a procedural defect exists, the Court may consider the merits of the

claim if the Defendant can show that an exception found in Rule 61(i)(5) applies. 14

Rule 61(i)(5) provides that a defect under Rule 61(i)(1)–(3) will not bar 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.” 15



9
  Younger v. State, 580 A.2d 552, 554 (Del. 1990).
10
   Super. Ct. Crim. R. 61(i)(1).
11
   Super. Ct. Crim. R. 61(i)(2).
12
   Super. Ct. Crim. R. 61(i)(3).
13
   Super. Ct. Crim. R. 61(i)(4).
14
   Super. Ct. Crim. R. 61(i)(5).
15
   Id.
                                               4
       Rivera’s Rule 61 Motion is not procedurally barred. The motion was timely

filed and this is Rivera’s first opportunity to present an ineffective assistance of

counsel claim. 16

       To prevail on a claim for ineffective assistance of counsel under Strickland

v. Washington, 17 a defendant must prove: (1) counsel’s representation fell below an

“objective standard of reasonableness;” and (2) counsel’s actions were prejudicial

to his defense, creating “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” 18

When the Court examines a claim of ineffective assistance of counsel, it may

address either prong first.19 When one prong is not met, the Court may reject the

defendant’s claim without analyzing the other prong. 20

       The Strickland test is “highly demanding.” 21          Under the first prong of

Strickland, there is a “strong presumption that the representation was

professionally reasonable.” 22 In measuring counsel’s reasonableness, every effort




16
   The Delaware Supreme Court affirmed Rivera’s conviction on August 21, 2012, and Rivera
filed the instant motion on August 7, 2013. See Rivera v. State, 2012 WL 3597225.
17
   Strickland v. Washington, 466 U.S. 668 (1984).
18
   Id. at 687–88, 694.
19
   Id. at 697.
20
   Id.
21
   Fletcher v. State, 2006 WL 1237088, at *2 (Del. Super. 2006).
22
   Stone v. State, 690 A.2d 924, 925 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736, 753
(Del. 1990)).
                                             5
must be made to eliminate the distorting effects of hindsight. 23 Instead, the court

must evaluate the conduct from counsel’s perspective at the time. 24

       During his statement to the police, Rivera admitted to using about 13 or

more bags of heroin per day and that he used about 15 bags of heroin that

morning. 25 Prior to trial, Rivera filed his own motion to suppress his confession,

claiming he was incapable of giving a knowing and voluntary waiver of his

Miranda rights because he was under the influence of heroin. 26 Rivera’s motion

was forwarded to Trial Counsel, but Trial Counsel declined to file a motion to

suppress the statement because in his opinion, Rivera knowingly, intelligently, and

voluntarily waived his Miranda rights. 27 Rivera argues that Trial Counsel was

ineffective for failing to file a motion to suppress. 28

       In the context of a motion to suppress, the State has the burden of proving by

a preponderance of the evidence that the defendant’s waiver of his Miranda rights

was knowing, intelligent, and voluntary. 29         Under Delaware law, “[v]oluntary

intoxication does not necessarily render a confession involuntary.” 30             Instead,

“[t]he use of drugs is just one factor the court must consider while looking at the

23
   Strickland, 466 U.S. at 689.
24
   Id.
25
   Def.’s Br. app. at 14.
26
   Def.’s Br. at 4–6.
27
   Id. app. at B–1 to B–3. See also Aff. of Edinger at 3.
28
   Def.’s Br. at 4.
29
   State v. Caldwell, 2007 WL 1748663, ¶ 4 (Del. Super. 2007).
30
   Shockley v. State, 2004 WL 1790198, ¶ 21 (Del. 2004) (ORDER) (citing Howard v. State, 458
A.2d 1180, 1183 (Del. 1983)).
                                             6
totality of the circumstances to decide if a statement is ‘the product of an

essentially free and unconstrained choice.’” 31 The relevant inquiry is whether the

defendant “knew what he or she was doing and had a reasonable appreciation of

the nature and significance of his or her actions.” 32

       Rivera contends that his physical symptoms during the interview indicate he

was too intoxicated to give a knowing and voluntary confession. 33                  At the

beginning of the interview, the interviewing detective and police officer observed

Rivera coughing heavily. 34 When they inquired about the coughing, Rivera replied

that he smoked and had asthma. 35          The officer handed Rivera his inhaler to

alleviate the coughing. 36 The detective then read Rivera his Miranda rights.37

When the detective asked Rivera if he understood his rights, he responded,

“Yes,” 38 and Rivera signed a Miranda waiver form. 39 The detective then observed

Rivera shaking and asked if he had bad nerves, to which Rivera replied, “Yes. But

I don’t take no medicine for it.”40 The interviewing detective testified at trial that



31
   State v. Pustolski, 2009 WL 10212727, at *7 (Del. Super. 2009) (quoting Caldwell, 2007 WL
1748663, ¶ 9).
32
   Id.
33
   Def.’s Br. at 5.
34
   Def.’s Br. app. at 1.
35
   Id.
36
   Id.
37
   Id. at 2.
38
   Id.
39
   Id. at 3.
40
   Id. at 2.
                                             7
Rivera did not appear to be under the influence of heroin at the time of the

interview. 41

       Trial Counsel explained in his affidavit that he reviewed Rivera’s video

recorded statement to the police and disagreed with Rivera’s assessment of what

the interview reflected. 42 Trial Counsel determined that while the video recording

shows that Rivera is coughing, bent over, and breathing with difficulty, it did not

appear that he was in pain or shaking. 43 Further, Trial Counsel determined that

Rivera’s physical symptoms were caused by an asthma attack, not intoxication.44

According to Trial Counsel, Rivera’s demeanor in the interview was no different

than when Trial Counsel met with Rivera at the Howard R. Young Correctional

Facility and at various times in the courthouse prior to trial.45 Trial Counsel

considered whether Rivera was intoxicated during the interview; however, he

believed under the totality of the circumstances, that Rivera’s waiver was knowing,

intelligent, and voluntary, and that there was no good faith basis upon which to file

a motion to suppress the confession.46

       After a thorough review of Rivera’s assertions, Trial Counsel’s affidavit, and

the record of the case, Rivera has failed to overcome the presumption that Trial


41
   Transcript of Trial at 108, State v. Rivera, No. 1102017217 (Oct. 18, 2011) (D.I. 24).
42
   Aff. of Edinger at 2.
43
   Id.
44
   Id.
45
   Id.
46
   Id. at 3.
                                                 8
Counsel’s decision not to file a motion to suppress was professionally reasonable.

Rivera voluntarily answered each of the detective’s and officer’s questions and did

not exhibit any other physical symptoms of possible intoxication except for the

physical symptoms that Trial Counsel concluded were caused by Rivera’s asthma.

        Moreover, the record supports Trial Counsel’s determination that even if

Rivera was intoxicated, Rivera knew and appreciated the nature and significance of

his actions. For example, Rivera admitted during the interview that he did not

immediately open the door when he noticed the police officers at the door because

he had outstanding warrants for his arrest in Puerto Rico. 47 After he noticed the

police officers, Rivera locked the chain on the door and went to the back room and

told his son, “they’re going to lock me up, they’re going to lock me up.” 48 Rivera

further acknowledged that he does not sell heroin to children because he has a

child of his own.49 Finally, Rivera acknowledged that he is familiar with the

arresting process because he was arrested several times prior to the day of the

interview. 50

        Rivera has failed to show that Trial Counsel’s actions fell below an objective

standard of reasonableness.      Because Rivera cannot meet the first prong of

Strickland, the Court will not analyze the second prong of Strickland.

47
   Def.’s Br. app. at 5.
48
   Id. at 8.
49
   Id. at 12.
50
   Id. at 6.
                                           9
                            IV. CONCLUSION

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

is DENIED.

     IT IS SO ORDERED.

                                           _____________________________
                                           Jan R. Jurden, President Judge




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