IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. No. 1112018546
PAUL LACOMBE, §

Defendant. §

Submitted: January 24, 2018
Decided: April 30, 2018

Upon Defendant’s Amended Motion for Postconviction Relief,
DENIED.

M

Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, 820
North French Street, Wilmington, DE 19801, Attorney for the State.

Herbert W. Mondros, Esquire, Margolis Edelstein, 300 Delaware Avenue, Suite
800, Wilmington, DE 19801; Karl Schwartz, Esquire, Law Offlce of Karl
Schwat“cz, P.O. Box 8846, Elkins Park, PA 19027; Attorneys for Defendant Paul

Lacombe.

WHARTON, J.

This 30th day of April, 2018, upon consideration of Defendant Paul
Lacombe’s (“Lacombe”) timely Amended Motion for Postconviction Relief
(“APCR),l the State’s Response,2 Lacombe’s Reply,3 and the record in this matter,
it appears to the Court that:

l. On January 30, 2012, Lacombe Was indicted by the Grand Jury on the
charges of Murder First Degree (four counts, two of Which were felony murder
counts, involving two victims), Attempted Robbery First Degree (tWo counts),
Conspiracy Second Degree and Possession of a Firearm During the Commission of
a Felony (six counts).4 The State determined to seek the death penalty.5 Lacombe’s
motion for a psychological examination, filed by defense counsel, Was granted on
August 23, 2012, and a report filed on November 7, 2012.6 Lacombe’s attorney also
filed a suppression motion on December 13, 2012.7 On March l9, 2013, Lacombe
entered a plea of guilty but mentally ill to the charges of Murder First Degree and
Conspiracy Second Degree, simultaneously Withdrawing his suppression motion.8
After entering his plea, but before sentencing, trial counsel filed a Motion to

WithdraW Plea on Lacombe’S behalf, attaching Lacombe’s handwritten letter

 

1D.I. 129.
2D.I. 139.

3 D.I. l4l.
4D.I. 3.

5 D.I. 6.
6D.I. l4, 24.
7D.I. 25.
8D.I. 35.

making that request.9 Lacombe supplemented that motion with his own pro se letter
explaining why he wanted to withdraw his plea and why he sought new counsel,10
which was forwarded to the Court by trial counsel.ll On September 17, 2013 the
judge then assigned to the case issued an Opinion and Order denying Lacombe’s

2 Lacombe was sentenced on September 17, 2013.13 The

motion to withdraw.l
Delaware Supreme Court affirmed his conviction and sentence, finding that
Lacombe’s appeal was wholly without merit and devoid of any arguably appealable
issue.14 On August 5, 2015, Lacombe filed a pro se Motion for Postconviction
Relief, raising ineffective assistance of counsel, actual innocence and competency
claims.15 Lacombe was appointed counsel who subsequently moved to withdraw
after determining that there were no meritorious claims that he could ethically
advocate and that he was unaware of any potential meritorious grounds for relief.]6
Prior to the Trial Court ruling on appointed counsel’s motion to withdraw and

Lacombe’s postconviction relief motion, current counsel entered an appearance on

Lacombe’s behalf,17 New counsel filed the APCR Motion now pending.18

 

9D.I. 81.

10D.I. 87.

11 D.I. 88.

12D.I. 91.

13D.I. 92.

14Lac0mbe v. State, 2014 WL 1407834 (Del.).
15D.I. 103.

16D.I. 116.

17D.I. 122.

18 D.I. 129.

Subsequently, the assigned judge retired, and the matter was reassigned to this judge
on January 24, 2018.

2. In his APCR Motion, Lacombe presses claims of ineffective assistance
of counsel, as well as an allegation that the entry of his plea was defective in light of
Raufv. State.19 He alleges that his attorney was ineffective by “abandoning [him] and
requiring him to fend for himself at the most critical stage of the proceeding;”z°
Lacombe further alleges that counsel was ineffective because she performed
deficiently in pleading the motion to withdraw Lacombe’s guilty plea in that she failed
to demonstrate that: 1) the State would not be prejudiced by withdrawal of the plea;21
2) the plea was not knowingly and voluntarily entered;22 and 3) Lacombe had a basis
to assert legal innocence.23 Lacombe claims counsel was also deficient by failing to
raise a constitutional challenge to Delaware’s death penalty statute.24 Finally,
Lacombe argues that Rauf should be applied retroactively so as to invalidate his guilty
plea.25

3. Before addressing the merits of a defendant’s motion for postconviction

relief, the Court must first apply the procedural bars of Superior Court Criminal Rule

 

19145 A.3d 430 (Del. 2016).
20APCR at 22; D.I. 129.
2'Ia'. at 33.

22Ial. at 36.

Zzld. at 45.

24Ia’. at 55.

25Ia'. at 58.

61(i).26 If a procedural bar exists, then the Court will not consider the merits of the
postconviction claim.27

4. Under Delaware Superior Court Rules of Criminal Procedure, a motion
for post-conviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications A motion exceeds time limitations if
it is filed more than one year after the conviction becomes final or if it asserts a newly
recognized, retroactively applied right more than one year after it was first
recognized28 A motion is considered repetitive and therefore barred if it asserts any
ground for relief “not asserted in a prior post-conviction proceeding.”29 Repetitive
motions are only considered if it is “warranted in the interest of justice.”30 Grounds
for relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief” and
“prejudice from [the] violation.”31 Grounds for relief formerly adjudicated in the case,
including “proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.32 Former

adjudications are only reconsidered if “warranted in the interest of justice.”33

 

26 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
21Ia’.

28 Super. Ct. Crim. R. 61(i)(1).

29 Super. Ct. Crim. R. 61(i)(2).

30 Id.

31 Super. Ct. Crim. R. 61(i)(3).

32 Super. Ct. Crim. R. 61(i)(4).

33Id.

4. This APCR Motion is a timely first motion for postconviction relief,
alleging ineffective assistance of counsel. Accordingly, the Court will consider the
motion on its merits.

5. To successfully bring an ineffective assistance of counsel claim, a claimant
must demonstrate: (1) that counsel’s performance was deficient; and (2) that the
deficiencies prejudiced the claimant by depriving him or her of a fair trial with reliable
results.34 To prove counsel’s deficiency, a defendant must show that counsel’s

5 Moreover, a

representation fell below an objective standard of reasonableness3
defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal36 “[A] court must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.”37
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.”38 When addressing
the prejudice prong of the ineffective assistance of counsel test in the context of a

challenged guilty plea, an inmate must show “that there is a reasonable probability

that, but for counsel’s errors, he would not have pleaded guilty and would have

 

3‘1.S`tl'z`cklcma' v. Washington, 466 U.S. 668, 688 (1984).
35Ia'. at 667-68.

36 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

37 Stricklana’, 446 U.S. at 689.

38Ial. at 694.

insisted on going to trial.”39 An inmate must satisfy the proof requirements of both
prongs to succeed on an ineffective assistance of counsel claim. Failure to do so on
either prong will doom the claim and the Court need not address the other.40 Lacombe
cannot demonstrate that counsel’s performance was deficient and/or that he would
have insisted on going to trial.

6. The Court turns first to the ineffective assistance of counsel claims
associated with Lacombe’s failed motion to withdraw his guilty plea. Although not
dispositive, the Court is informed by the decision of the Trial Court denying that
motion. First Lacombe asserts as fact that counsel “inexplicitly abandoned” Lacombe
at the most critical stage of the proceeding, just prior to sentencing, and after he had
expressed a desire to withdraw his plea. This Court finds otherwise. During this
period, counsel continued to prepare for sentencing, even though the sentence to be
imposed was mandatory, and continued to explore with Lacombe the reasons why he
wished to withdraw his plea.41 To the contrary, it was Lacombe who ceased to
cooperate with counsel and made communication between himself and counsel

difficult.

 

39Alburjy v. State, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52,
58 (1985)); Sartin v. State, 2014 WL 5392047 at *2 (Del.); State v. Hackett, 2005
WL 30609076 at *3 (Del. Super. Ct.).
40Strickland, 466 U.S. at 697;P100fv. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
41 See, Aff. Kathryn Van Amerongen, Esquire, D.I. 138.

7

7. The Court also rejects Lacombe’s argument that counsel was to blame for
deficiencies in the motion to withdraw his guilty plea. Motions to withdraw guilty
pleas are almost always client initiated and draw heavily upon the client’s expressed
reasons for withdrawing the plea as support for them. Here, apart from his letters,
which counsel forwarded to the court in support of the motion, Lacombe was
uncooperative with counsel, leaving counsel with little information with which to
advance the motion.42

8. With regard to the claim that counsel failed to demonstrate that the State
would not be prejudiced by granting the motion, the Court turns to and the relies on
the opinion of the Trial Court in assessing any claimed prejudice to Lacombe. The
Trial Court found that in addition to burdening the State, further delay would burden
the Court. “Here, the crime that resulted in two deaths took place over a year and a
half ago. Allowing the Defendant to withdraw his plea would result in further delay
in providing justice.”43 In addition the Trial Court noted, “It would also burden both
the State and the Court with scheduling the accomplices to testify for a trial.”44

Nothing in the record, and certainly nothing in Lacombe’s APCR Motion, convinces

this Court that a different result would have obtained had counsel presented the

 

421d. The Court finds that the letters were forwarded to the Court either at
Lacombe’s request or with his knowledge and consent.

43D.I. 138 at 7.

44Id.

argument “properly.” Presumably, the argument is presented “properly” in the
APCR, and it too fails to persuade.

9. Next, Lacombe argues that he did not knowingly and voluntarily enter his
plea. He bases this argument largely on his mental health issues. Certainly, the Trial
Court was well aware of Lacombe’s mental condition, having been provided with two
reports assessing his mental condition. The first was a psychiatric/psychological
report filed on November 21, 2012.45 The second was submitted in conjunction with
his plea of guilty but mentally ill.46 The Trial Court was plainly aware of Lacombe’s
mental health when it accepted his plea of guilty but mentally ill, when it denied his
motion to withdraw that plea, and when it sentenced him. The Trial Court carefully
reviewed the plea colloquy and found that Lacombe knowingly and voluntarily
entered his plea when it denied his motion to withdraw his plea. Again, nothing in
the record, and nothing in the APCR Motion convinces this Court that the plea was
not knowingly and voluntarily entered.

10. Finally, with regard to his attempt to withdraw his guilty plea, Lacombe
claims counsel was ineffective in not presenting a claim of legal innocence. In this
case he means legal innocence in the sense that he was not guilty of intentional

murder, or felony murder, as opposed to innocence in fact.47 The Court has

 

45 D.l 25.

46 D.I. 106. Letter from Clarence Watson, JD, MD to the Honorable M. Jane Brady
dated September 8, 2014 and filed with the Prothonotary September 19, 2016.

41 Felony murder would have resulted, at a minimum, in a sentence of life without

parole.
9

thoroughly reviewed the record, including Lacombe’s comment at sentencing, “And

”48 He also

I took matters into my own hands, and went to plan these robberies.
confessed to shooting both victims during a planned robbery attempt. Co-defendant
testimony would have further incriminated him. Finally, he admitted his guilt during
the plea colloquy. Wishcasting legal innocence is not a sufficient basis to advance a
claim of legal innocence.

11. Accordingly, it is clear to the Court that none of Lacombe’s claims of
ineffective assistance of counsel related to his attempt to withdraw his plea can
overcome Strickland ’s prejudice prong. Moreover, since it is also clear to the Court,
even in light of the APCR Motion, that Lacombe had no meritorious basis to withdraw
his plea, the Court cannot say that counsel failed to meet Strickland ’s performance
standard in the manner by which she presented Lacombe’s motion to withdraw his
guilty but mentally ill plea.

12. The Court next turns to Lacombe’s claim that counsel was ineffective in
failing to challenge Delaware’s death penalty statute. In 2016, Delaware’s death
penalty statute was invalidated in Rauf The result in Rauf was presaged by the

49 Obviously, those

United States Supreme Court’s decision in Hurst v. Florida.
decisions in 2016 occurred years after counsel was making her real-time decisions in

2013 based on then valid Delaware law. Lacombe argues that counsel was ineffective

 

41 Appx. APCR, Vol. 3, at 577.

49136 S. Ct. 616 (2016).
10

for failing to realize in 2013 that in 2016 Hurst, a Florida case, would be granted
certiorari by the United States Supreme Court in late 2014,50 that the United States
Supreme Court would declare Florida’s death penalty statute unconstitutional in 2016,
and then finally that the Delaware Supreme Court would invalidate Delaware’s death
penalty statute the same year. That degree of prescience is not required by
Strickland ’s performance prong. Further, had the law not developed as it did, and had
counsel pursued an unsuccessful constitutional challenge, it is not at all clear that
Lacombe would have received the same plea offer. Had he gone to trial and received
a death sentence, it does not require much imagination to envision the focus of a future
ineffective assistance of counsel claim,

13. Lacombe’s final claim is that Rauf made the entry of his plea defective.
Relying on Powell v. State,51 he argues that Rauf’s retroactive “watershed rule”
implicates his decision to plead guilty. The Court disagrees. The rule in Rauf that
Powell made retroactive applied to Powell’s death sentence. lt did not apply
retroactively to decisions to plead guilty to avoid a death sentence.52 There is no

defect in Lacombe’s plea.

 

50 2014 WL 10294726 (U.S.).
51 153 A.3d 69 (Del. 2016).

52See, Brice v. State, 2017 WL 6028875 (Del. Super.).
11

NOW, THEREFORE, the Defendant’s Amended Motion for Postconviction

Relief is DENIED.

IT IS SO ORDERED.

jn/vr/l/

Fer/r s W. Whartbn, J

12

