IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1611005481

)

)

MALCOLM LUM, )
)

Defendant. )

Submitted: October 29, 2018
Decided: December 3, 2018

COMMISSIONER’S REPORT AND RECOMMENDATION

THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE SUMMARILY DISMISSED

Allison J. Abessino, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State of Delaware.

Malcolm Lum, pro se

MAYER, Commissioner

This 3rGl day of December, 2018, upon consideration of Defendant’s Motion
for Postconviction Relief and the record in this matter, the following is my Report
and Recommendation.

BACKGROUND AND PROCEDURAL HISTORY

Defendant, Malcolm E. Lum, was arrested after officers stopped him and
conducted a pat-down search that lead to the discovery of a loaded 10-millimeter
handgun in his waistband. Defendant was indicted and charged with two counts of
Possession of a Firearrn by a Person Prohibited (“PFBPP”), Possession of
Ammunition by a Person Prohibited (“PABPP”), one count of Carrying a Concealed
Deadly Weapon (“CCDW”) and Resisting Arrest. Defendant’s trial counsel filed a
Motion to Suppress and argued that the officers lacked reasonable articulable
suspicion to stop Defendant.l After a hearing, the Motion to Suppress was denied.2
Prior to trial, the parties stipulated that Defendant was a person prohibited by
Delaware law from possessing or controlling a firearm or ammunition for a firearm.3
A jury trial was held in September of 2017 and Defendant was found guilty of

PFBPP, PABPP and CCDW but not guilty of the remaining charge. On September

 

l D.I. # 10.
2 D.I. # 19.

3 D.I. # 29.

20, 2017, Defendant was sentenced. Defendant promptly filed an appeal and the
Delaware Supreme Court affirmed the judgment of conviction.4

On appeal, Defendant presented three arguments.5 First, Defendant argued
the officers lacked reasonable articulable suspicion to justify the stop and subsequent
search. The Supreme Court reviewed the evidence in the record and found that
Defendant was acting suspiciously in a high crime area and appeared to be armed,
which supported the stop and search. Second, although not raised during the trial
proceedings, Defendant essentially argued the police would have searched him
regardless of the evidence in the record (i.e. bias). The Supreme Court found no
error by the Superior Court and that there was a rational basis to support the events
in question. Third, Defendant presented another new argument challenging the
authority of a probation officer to conduct the seizure. After examining the legal

arguments presented, the Supreme Court once again found no plain error occurred.

 

4 Lum v. Sm¢e, 2018 wL 4039898 (Dei. Aug. 22, 2018).

5 See D.I. # 44.

On October 29, 2018, Defendant filed a pro se Motion for Postconviction

Relief (the “Motion”).6 Defendant presents the following arguments:

Ground One: INEFFECTIVE ASSISTANCE OF
COUNSEL

Supporting facts: The counsel’s representation fell below
an objective standard of reasonableness

Ground Two: PLAIN ERROR
Supporting facts: (Please see attached Memorandum of
Law)

Ground Three: RACIAL PROFILE
Supporting facts: (Please see attached Memorandum of
Law)

Ground Four: ILLEGAL SEARCH AND SEIZURE
Supporting facts: (Please see attached Memorandum of
Law)
Ground F our (sic): SUPPRESSION I-[EARING
Supporting fact: The defendant filed for a suppression
hearing but was later denied by the sentencing judge
(Please see attached Memorandum of Law).
In summary, the Motion, coupled with the Memorandum of Law, (i) attacks the

legality of the stop, search and seizure; (ii) accuses the police officers of racial

profiling; and (iii) challenges the probation officer’s authorization to participate in

 

6 Defendant’s Motion incorrectly states he plead guilty when in fact, he was

convicted after a jury trial.

the search and seizure of Defendant.7 Although Defendant cites a claim of
ineffective assistance of counsel in his initial summary, it is difficult to discern from
the papers what, if anything, he believes counsel failed to do.8
LEGAL ANALYSIS

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the Motion.9 This is Defendant’s first
motion for post-conviction relief and it was timely filed.10 However, pursuant to
Super. Ct. Crim. R. 61(i)(3) and (4), any ground for relief that was not previously
raised is deemed waived, and any claims that were formerly adjudicated, whether in
the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter

barred.

 

7 This last argument appears to have been copied directly from the Supreme Court
papers.

8 For example, Defendant argues at page 7 that the grounds for the ineffective
assistance of counsel claim “resulted in an Involuntary Guilty Plea, which lead to
trial.” However, Defendant did not plead guilty.

9 Younger v. State, 580 A.2d 552, 554 (Del. 1990).

10 See Super. Ct. Crim. R. 61(i)(1) (motion must be filed within one year of when
conviction becomes final); Super. Ct. Crim. R. 61(m)(2) (If the defendant files a
direct appeal, the judgment of conviction becomes final when the mandate is issued).

All of Defendant’s claims, premised on the search and seizure (Ground Two
and both of the Ground Four claims), were previously addressed either by way of
the trial court proceedings or on appeal. To the extent Defendant is attempting to
re-argue these issues, any such claims are barred by Super. Ct. Crim. R. 61(i)(4).

Defendant’s Ground Three, a claim of racial profiling, does not appear to have
been directly raised at the time of the trial proceedings As such, that claim is
deemed waived pursuant to Super. Ct. Crim. R. 61(i)(3). However, a variation of
that argument was addressed by the Supreme Court and it found that the testimony
in the record supported a finding that Defendant engaged in canting indicative of
firearms possession Despite Defendant’s general categorization of racial profiling,
there is nothing in the record to demonstrate the stop was anything but lawful.
Therefore, Defendant has neither established cause for relief from the procedural
bar, nor prejudice and violation of his rights.ll

With respect to Ground One, Even if the Court were to consider a claim of
ineffective assistance of counsel, Defendant has not shown that his counsel’s
representation fell below an objective standard of reasonableness and the

deficiencies in counsel’s representation caused him actual prejudice.12 Defendant

 

" See super. Ct. Crim. R. 61(i)(3)(A) & (B).

12 Strl`ckland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State,
757 A.2d 1278 (Del. 2000).

must overcome a strong presumption that counsel’s conduct was reasonably
professional under the circumstances.13 Great weight and deference are given to
tactical decisions by the trial attorney and counsel cannot be deemed ineffective for
failing to pursue motions that lack merit.14 Although Defendant mentions the
concept of ineffective assistance of counsel, in passing, he does nothing more to
substantiate the claim or to identify any actions or failure to act of counsel that merit
relief. Mere allegations of ineffectiveness will not suffice, rather, a defendant must
make and substantiate concrete allegations of actual prejudice15 Defendant’s
ineffective assistance of counsel claim fails to overcome the presumption to warrant
relief`.

Finally, the procedural bars to relief set forth above will not apply to a claim
that (i) the court lacked jurisdiction, (ii) pleads with particularity that new evidence
exists creating a strong inference that the movant is actually innocent in fact of the
acts underlying the conviction, or (iii) a new rule of constitutional law, made

retroactive to cases on collateral review, applies to render the conviction invalid.16

 

13 State v. Wright, 653 A.2d 288, 293-94 (citations omitted).
14 Sl‘al`e v. Ml`llel”, 2013 WL 871320, at *4 (Del. Super., Feb. 26, 2013).
15 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

'6 see super. Ct. Crim. R. 61(i)(5) and (d)(z)(i)-(ii).

Defendant does not argue the Court lacked jurisdiction, has not plead any new
evidence or facts demonstrating that he is innocent of the acts giving rise to the
conviction, nor has he asserted that a new rule of constitutional law affects his
conviction. As such, Defendant has failed to establish an exception to the procedural
bars.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be SUMMARILY DISMISSED.

CQ`@;F 42

Commissioner Katharine `I:. Mayer

IT IS SO RECOMMENDED.

oc: Prothonotary
Allison J. Abessino, Esquire
Matthew C. Buckworth, Esquire
Malcolm Lum

