IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
V. )

) ID No.: 1609015856
LEWIS HENDERSON, )
)
Defendant )

Submitted: March 12, 2018
Decided: September 25, 2019

On Defendant’s Motion for Postconviction Relief.
SUMMARILY DISMISSED.

ORDER

This is the Court’s ruling on a Rule 61 motion filed by the Defendant. The

Court makes the following findings:

1. The Defendant was sentenced in September 2018 on charges of

Robbery First degree and Conspiracy Second degree. The State agreed to cap its

sentencing recommendation at 10 years. The mandatory sentence for Robbery First

degree is 3 years.! The Court actually imposed six years — a sentence in the mid-

range between the minimum and State’s cap.

 

'11 Del. C. §832.
ye The sentencing was a result of the Defendant’s guilty plea. There was
no direct appeal. The Rule 61 motion was filed within the one year allotted for
filing such motions after sentence.? This is his first such motion.

oF When a defendant pleads guilty, the grounds upon which he may
challenge his conviction on collateral attack are narrowed somewhat.' In addition,
the Court will appoint counsel to represent him in his Rule 61 proceeding only if the
Court finds 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.”> The Court
does not find the Defendant’s motion to have met the pleading threshold to warrant
the appointment of counsel and therefore will not do so.

4, Defendant recites in his pro se motion that he did not receive discovery

or any evidence despite requests to his attorney. His attorney has replied by affidavit

 

? Del. Super. Ct. Crim. R. 61(i).
3 See id. at (d)(1) and (2).
4 Brown v. State, 119 A.3d 42 (Del.2015).

’ Del. Super. Ct. Crim. R. 61(e)(3).
that he (the attorney) received substantial discovery from the State and was well
acquainted with the allegations against the defendant and the evidence supporting
the allegations.® Because the Defendant failed to appear after being released on
bond, a capias was issued and a substantial bond was set, causing him to be
incarcerated for several months prior to trial. Counsel recites that pursuant to an
agreement with the State, he was required to agree not to share witness statements
with the accused out of concern for witness safety.’ In fact, defense counsel had no
right to the statements under the Rule in any event.

5. Discovery complaints are quite common in Rule 61 proceedings and
there is some reason to be sympathetic to an inmate, locked behind bars without a
full understanding of the evidence keeping him there. But Rule 16 discovery is
structurally more truncated than the full discovery permitted civil litigants and the
state certainly has legitimate interests in keeping its witnesses and other citizens safe
from harm. Limitations on defendants having direct access to materials provided

under Rule 16 have become commonplace.’

 

‘DI. 85
7 Td.
8’ See generally Del. Super. Ct. Crim. R. 16.

° Liket v. State, 719 A.2d 935, 937-38 (Del. 1998)
3
6. The important element for our purposes is that defense counsel has
adequately explained by responsive affidavit that he received all of the Rule 16 to
which the defense was entitled and a good bit additional to which he was not. He
reviewed the State’s evidence with the defendant in April of 2017, before the
Defendant rejected a final case review offer and again in June of 2018 when the
Defendant was held in default of bail for failing to appear for trial.!° By the time he
pled guilty, neither defense counsel nor the Defendant had any illusions about what
evidence the State had indicating his guilt. There can be no ineffective assistance
claim where there has been no ineffective assistance and no prejudice to the accused.

7. For his second claim, the Defendant says “I was forced to sign a plea
of 3 years with the promise of my attorney/he scared me into signing an open plea
to stop me from going to trial.” !'

8. Trial counsel’s affidavit avers that he met with the Defendant in the
prison in the week prior to taking the plea and went over all of the evidence against
him, the plea offer on the table and the range of possible consequences. He went
over “the information contained in the police reports, co-defendant’s statements, the

contents of video surveillance as well as the likely testimony of other State

 

'0 Affidavit in Response to Rule 61 Motion, D.I. 85

" Motion D.I. 82
witnesses.” Counsel avers that after considering all of this, the Defendant advised
that he wanted to accept the State’s plea offer.'”

9. These allegations by defense counsel are buttressed by the signed Truth
in Sentencing guilty plea form, in which Defendant affirmatively stated that he
understood his rights, was satisfied with counsel and was tendering his guilty plea
knowingly, freely and voluntarily.'> A bare allegation, coming a year after
sentencing, that Defendant was scared cannot be countenanced absent some
compelling evidence to undermine confidence in the regularity of the prior
proceedings.

10. For his third claim, the Defendant says a co-defendant statement was
false in that he gave two statements, one stating that he was not present and another
stating that he was and guilty of the crime.'* If this sounds like a co-defendant who
initially denied involvement and later admitted it, that is precisely what the State
says happened.’ Hardly unique, or even unusual.

ll. If the Defendant felt that the co-defendant’s inconsistent statements

were sufficiently false as to justify taking the matter to trial, he should not have pled

 

2D. 85
'3 States Response to Petitioner’s Motion, Docket D.I. 87, Exhibit 2.
4D.J. 82 at 3.

Ba.
guilty. Waiting until a year after sentencing to point out this alleged inconsistency
is literally too little too late.

12. In any event, inconsistent statements by a co-defendant is nowhere to
be found as grounds for relief under Rule 61. To the extent the Court engrafts a
claim of ineffective assistance of counsel onto the claim of inconsistent statements
by a co-defendant, it gets the analysis nowhere: inconsistent statements are not the
product of ineffective counsel and many a competent counsel are apt to advise a plea
of guilty notwithstanding a co-defendant’s hedging before confessing.

13. There is a final claim that the Court takes to mean the Defendant feels
his sentence was excessive and unjust. Such claims have no place in a Rule 61
proceeding as they seek relief from the sentence and are treated under Superior Court
Criminal Rule 35.'!° The Defendant states in his pleading that he has filed a Rule 35
motion with his sentencing judge and I take that to mean he is familiar with the rule.
As I was not the sentencing judge, I have no opinion on whether his sentence was
excessive or unjust. That matter either can, was, or will be dealt with by the

sentencing judge.

Defendant’s Rule 61 motion is hereby SUMMARILY DISMISSED.

Ee

Judge Charles E. Bute \

 

'6 Del. Super. Ct. Crim. R. 35(a}H{c).
