IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE In and for Kent County
ID. No. 1706010540

V.
RK17-06-0573-01
ANTHONY G. HARMON, Child Sex Abuse (F)

Defendant.

Nee Nee Ne Nee ee ee” ee”

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Kathleen A. Dickerson, Esq., Deputy Attorney General, Department of Justice, for the
State of Delaware.

Anthony G. Harmon, pro se.

FREUD, Commissioner
August 23, 2019

The defendant, Anthony G. Harmon (“Harmon”), pled guilty on January 11,
2018 to one count of Felony Sexual Abuse of a Child by a Person in a Position of
Trust, Authority or Supervision in the First Degree (“Child Sexual Abuse’), 11 Del.
C. § 778(2). He also faced one additional count of Child Sexual Abuse and two
counts of Felony Sex Offender Unlawful Sexual Conduct Against a Child which were
State v. Harmon
ID No. 1706010540
August 23, 2019

nolle prossed by the State in exchange for Harmon’s plea. As part of the plea deal
the State and the defense agreed upon a recommended sentence of twenty-five years
incarceration suspended after serving twelve years, ten of which were minimum
mandatory followed by probation. The Court agreed with the sentence recom-
mendation and sentenced Harmon accordingly. Had Harmon gone to trial and been
found guilty as charged he faced life in prison due to his status as an habitual
offender.’ Harmon did not appeal his conviction or sentence to the State Supreme
Court. Instead, Harmon filed the pending motion for postconviction relief pursuant
to Superior Court Criminal Rule 61 on September 27, 2018 in which he alleges, in
part, ineffective assistance of counsel.
FACTS

The following are the facts as outlined by the State in their reply to Harmon’s
motion and documented by accompanying exhibits including the police report, DNA
report and other documents attached to the State’s Reply.

The defendant was arrested on June 15, 2017, and
subsequently charged by indictment with two counts of
Sexual Abuse of a Child by a Person in a Position of Trust,
Authority or Supervision in the First Degree, violations of
11 Del. C. § 777(2), and two counts of Sex Offender
Unlawful Sexual Conduct Against a Child, violations of 11
Del. C. § 777A. The case resulted from a disclosure of
sexual abuse by the 14-year old victim who informed her

 

' Part of the Plea Agreement with the State was that in exchange for his guilty plea and
Harmon’s acknowledgment of his habitual offender status, the State would not be seeking sentencing
of Harmon as an habitual offender. However had he gone to trial he would have been subject to
sentencing as an habitual offender.
State v. Harmon
ID No. 1706010540
August 23, 2019

mother through text messaging that she had engaged in
sexual intercourse with the defendant who was her
mother’s husband. (Exhibit “A”). The victim indicated that
she thought she could be pregnant with the defendant’s
child.

Following the disclosure, a forensic interview was
conducted with the victim at the Children’s Advocacy
Center [(“CAC”)]. During this interview the victim
disclosed that the defendant had engaged in sexual contact
and sexual intercourse with her on several occasions at
different locations. The victim stated that the last incident
occurred on March 12, 2017, at the family’s home at
[address redacted] in Dover. On this date she performed
fellatio on the defendant and they engaged in penile-
vaginal intercourse on the defendant’s marital bed. The
victim stated that she wore a white short sleeve shirt,
orange or pink pajama pants, and dark blue or pink
underwear. While the victim and defendant were in the
bedroom, he used a camera application on his cell phone to
monitor the home’s stairwell to make sure that no one saw
them.

The victim received medical treatment, including a forensic
examination, at Bayhealth - Kent General Hospital. During
this examination she revealed that she had sex with her
stepfather the day before and that she had engaged in
sexual intercourse with him on other occasions during the
past year. She reported to the nurse examiner that the last
encounter included penile-vaginal intercourse and oral
copulation with the defendant (Exhibit “B”).

Detective Boone of Dover Police Department interviewed
the defendant. The defendant denied having a sexual

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State v. Harmon
ID No. 1706010540
August 23, 2019

relationship with the victim and could not explain why the
victim would make this allegation. He stated that they had
a good relationship. He admitted that he was in the
bedroom with her for twenty minutes on March 12, 2017,
that he used the cell phone application to monitor the
house’s camera and that his daughter was in the shower
during the time he was in the bedroom with the victim.

Evidence was collected from various sources during the
investigation. The victim’s dark pink or red sweat pants
were seized from a laundry hamper in her bedroom and
sent to the Division of Forensic Science for examination.
Analysis revealed the presence of the defendant’s
spermatozoa on the pants. The analyst opined that the odds
of the DNA profile coming from any person other than the
defendant were | in 7 trillion (Exhibit “C”).

The defendant was interviewed a second time at Dover
Police Department and confronted with the results of the
DNA test. He again denied sexual contact. He informed
the detective multiple times that he had no explanation for
the results. He then requested to speak to his wife, the
victim’s mother and told her over the telephone that the
victim had requested his sperm so she could get pregnant.
He told his wife that he ejaculated into a cup in the
bathroom so she could use it.

In 2016, prior to this investigation, the victim disclosed to
a counselor that the defendant had been touching her and
wanted to have sex with her. During a CAC interview on
November 1, 2016, the victim denied that the defendant
had engaged in any inappropriate behavior and explained
that she had lied to her therapist because her mother was
not giving her enough attention. These allegations did not

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State v. Harmon
ID No. 1706010540
August 23, 2019

result in an arrest; however the related police report was
provided to the defense in this case (Exhibit “D”).’

HARMON’S CONTENTIONS

In his motion, Harmon raises the following grounds for relief:

Ground one:

Ground two:

Ground three:

 

Ineffective assistance of counsel.

It is always the critical point for a Defense
Counselor to inform his or her client of the
advantages and disadvantages of a plea
bargain or Trial event. Suzanne Macpherson
[-Johnson] defense failed below an objective
standard as an attorney when she failed to
look into evidence regarding Child Advocate
Center interview recordings of sexual phone
messages to child’s Aunt.

Weight and sufficiency.

William L. Witham Superior Court Judge
rendered an excessive sentence, Judge was
partial and aware of unrelated facts of other
crimes defendant had in the past. Regulatory
Provisions was not followed and measured to
movant as any other citizen of the United
States of America.

Due Process Rights were violated.

Statutorily authorized limits were exceeded
because the judge did not consider the weight
of a Child Sex Abuse charge “verses” (sic) a
Rape 1* degree offense which is forcible

* State v. Harmon, Del. Super, ID No. 1706010540, D.I. 26.

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State v. Harmon
ID No. 1706010540
August 23, 2019

violence.
DISCUSSION

Under Delaware law, this Court must first determine whether Harmon has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of his postconviction relief claim.? This is Harmon’s first motion
for postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 61(i)(1) - requiring filing within one year
and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Harmon’s claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause
for the default and prejudice. Only Harmon’s first ground for relief is based on
ineffective assistance of counsel; therefore, he has alleged cause for his failure to
have raised the claim earlier. He makes no argument for his failure to have raised his
remaining two claims earlier. They are therefore clearly procedurally by Rule
61(i)(3).

At this point, Rule 61(i)(3) does not bar relief as to Harmon’s first ground for
relief, provided he demonstrates that his counsel was ineffective and that he was
prejudiced by counsel’s actions. To prevail on his claim of ineffective assistance of

counsel, Harmon must meet the two-prong test of Strickland v. Washington.’ In the

 

> Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

* 466 U.S. 668 (1984).
State v. Harmon
ID No. 1706010540
August 23, 2019

context of a guilty plea challenge, Strickland requires a defendant show: (1) that
counsel's representation fell below an objective standard of reasonableness; and (2)
that counsel's actions were prejudicial to him in that there is a reasonable probability
that, but for counsel's error, he would not have pled guilty and would have insisted
on going to trial and that the result of a trial would have been his acquittal.” The
failure to establish that a defendant would not have pled guilty and would have
proceeded to trial is sufficient cause for denial of relief.° In addition, Delaware courts
have consistently held that in setting forth a claim of ineffective assistance of counsel,
a defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.’ When examining the representation of counsel pursuant
to the first prong of the Strickland test, there is a strong presumption that counsel's
conduct was professionally reasonable.* This standard is highly demanding.’

Strickland mandates that, when viewing counsel's representation, this Court must

 

> Id. at 687.

° Somerville y. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60
(Del. 1988))(citations omitted).

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

® Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

° Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S.
365, 383 (1986)).
State v. Harmon
ID No. 1706010540
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endeavor to “eliminate the distorting effects of hindsight.”!°

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

Harmon was facing the possibility of life in prison had he been convicted. The
sentence and plea were very reasonable under all the circumstances, especially in
light of the overwhelming evidence against him. Prior to the entry of the plea,
Harmon and his attorney discussed the case. The plea bargain was clearly
advantageous to Harmon. Counsel was successful in negotiating an extremely
beneficial plea bargain with the State. Counsel’s representation was certainly well
within the range required by Strickland. Additionally, when Harmon entered his
guilty plea, he stated he was satisfied with defense counsel’s performance. He is
bound by his statement unless he presents clear and convincing evidence to the
contrary.'' Consequently, Harmon has failed to establish that his counsel’s
representation was ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Harmon was

somehow deficient, Harmon must satisfy the second prong of the Strickland test,

 

'0 Strickland, 466 U.S. at 689.

'' Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931,
937-938 (Del. 1994)).
State v. Harmon
ID No. 1706010540
August 23, 2019

prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.'? In an attempt to show prejudice, Harmon simply asserts that his counsel
was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, I find Harmon’s grounds for relief are
meritless.

To the extent that Harmon alleges his plea was involuntary, the record
contradicts such an allegation. When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.’? At the
guilty-plea hearing, the Court asked Harmon whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Harmon if he understood he would waive his
constitutional rights if he pled guilty including the right to suppress evidence; if he
understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty
Plea Form (“Guilty Plea Form”); and whether he gave truthful answers to all the
questions on the form. The Court asked Harmon if he had discussed the guilty plea
and its consequences fully with his attorney. The Court asked Harmon if he was

entering into the plea as he was guilty of the charges. The Court also asked Harmon

 

'* Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556
(Del. 1990).

'° Godinez v. Moran, 509 U.S. 389, 400 (1993).

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State v. Harmon
ID No. 1706010540
August 23, 2019

ifhe was satisfied with this counsel’s representation. Harmon answered each of these
questions affirmatively.’ I find counsel’s representations far more credible than
Harmon’s self-serving, vague allegations.

Furthermore, prior to entering his guilty plea, Harmon signed a Guilty Plea
Form and Plea Agreement in his own handwriting. Harmon’s signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed
in the Plea Agreement. Harmon is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.’* I
confidently find that Harmon entered his guilty plea knowingly and voluntarily and
that Harmon’s grounds for relief are completely meritless.

CONCLUSION

I find that Harmon’s counsel represented him in a competent and effective
manner and that Harmon has failed to demonstrate any prejudice stemming from the
representation. I also find that Harmon’s guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Harmon’s motion for postconviction

relief as procedurally barred and completely meritless pursuant to Superior Court

Criminal Rule 61(i)(3).

/s/ Andrea M. Freud
Commissioner

 

'* State v. Harmon, Del. Super., ID No. 1706010540 (Jan. 11, 2018) Tr. at 4-9.
'S Sommerville, 703 A.2d at 632.

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