IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
V. § I.D. No. 1210019908

ERIC HOLMES, §

Defendant. §

Submitted: September 28, 2016
Decided: December 15, 2016

MEMORANDUM OPINION
Upon Defendant’s Motion for Postconviction Relief

DENIED

Upon Rule 61 Counsel’s Motion to Withdmw as Counsel
- GRANTED

Eric Holmes, Defendant.

Patrick J. Collins, Esq., Collins & Associates, Wilmington, DE, Attorney for
Defendant.

Brian J. Robertson, Esq., Deputy Attorney General, Department of Justice,
Wilmington, DE, Attorney for the State of Delaware.

ROCANELLI, J.

I. PROCEDURAL BACKGROUND

On October 27, 2012, Defendant Eric Holmes (“Defendant”) Was an
occupant of a vehicle that Was stopped by Wilmington Police on the 800 block of
North Spruce Street. A reliable confidential informant had advised Wilmington
Police that a firearm Was inside the vehicle. Upon arrival, police discovered that
the vehicle Was occupied by Defendant, co-defendant Oliver Smith, Latisha
Powell, and Deoddrick Purnell. Police asked all occupants to exit the vehicle. The
occupants complied and Were placed in custody.

Police discovered a black Ruger “single six” .22 revolver in Defendant’s
Waistband, which Was loaded With live .22 caliber Remington rounds. Police also
discovered one clear bag containing six Endocet pills and eight Alprazolam
(Xanax) pills in Defendant’s left leg pant pocket. A black Intratec 9mm Luger Tec
9 Was discovered in co-defendant Smith’s Waistband. Co-defendant Smith’s
firearm Was loaded With thirty 9 mm Luger rounds, including one round in the
chamber. Occupants Powell and Purnell Were questioned and released

Defendant and co-defendant Smith Were placed under arrest. At the time of
Defendant’S arrest, he Was being supervised on federal probation. On January 22,

2013, a Grand Jury indicted Defendant With charges of Possession of a Firearm by

a Person Prohibited (“PFBPP”), Carrying a Concealed Deadly Weapon
(“CCDW”), and Possession of a Controlled Substance.1

Timothy Weiler, Esquire (“Trial Counsel”) Was appointed to represent
Defendant. Trial Counsel represented Defendant during Defendant’s pretrial
proceedings and jury trial. The record of this case is replete With Defendant’s
expressed dissatisfaction With Trial Counsel’s representation, including derogatory
remarks in Written correspondence and on the record in open court.

In addition to Defendant’s custody status at the time of his arrest, Defendant
had three prior felony convictions In consideration of Defendant’s criminal
history, prior to trial the State offered Defendant a plea to l6 years at Level V. The
plea offer contemplated that Defendant Would agree that Defendant’s prior
convictions made Defendant eligible for habitual offender status.2 Defendant
rejected the State’s plea offer and elected to proceed to trial.3

A jury trial took place on July 18 and l9, 2013. At the conclusion of the

State’s case-in-chief, Defendant made a motion for judgment of acquittal. Upon

 

l On July 18, 2013, the State entered a nolle prosequi as to Possession of a
Controlled Substance.

21113€1. C. § 4214(3).

3 The record indicates that Defendant declined the State’s offer, in part, because
Defendant did not believe that he Was eligible for habitual offender status. State v.
Holmes, I.D. No. 1210019908, at 9:18-12:17 (Del. Super. June ll, 2013)
(TRANSCRIPT); State v. Holmes, I.D. No. 1210019908, at 21:1-28:1 (Del. Super.
July 18, 2013) (TRANSCRIPT). Despite considerable efforts to inform Defendant
that he Was mistaken, Defendant refused to accept that his federal felony
conviction Would be considered for Defendant’s status as an habitual offender. Id.

2

consideration of the parties’ arguments and the evidenced presented by the State,
the Court denied Defendant’s motion. Trial Counsel presented a defense theory
that Defendant was under the influence of prescription medication at the time of
Defendant’s arrest, and that co-defendant Smith placed the firearm in Defendant’s
waistband without Defendant’s knowledge Co-defendant Smith testified at trial in
support of Defendant’s theory of the case. Trial Counsel argued that Defendant
did not act with the state of mind required for conviction.

Following the two-day trial, the jury found Defendant guilty of PFBPP and
acquitted Defendant of CCDW. Bail was revoked and a presentence investigation
was ordered. On August l6, 2013, the State filed a Motion to Declare Defendant
an Habitual Offender.

On October 9, 2013, Defendant submitted a letter to the Court challenging
Defendant’s conviction and expressing Defendant’s continued dissatisfaction with
Trial Counsel’s representation Although Trial Counsel represented Defendant at
the time Defendant submitted the October 9 letter,4 the Court accepted the letter as

a procedurally proper Motion for Judgment of Acquittal filed by a self-represented

 

4 See Super. Ct. Crim. R. 47 (“The court will not consider pro se applications by
defendants who are represented by counsel unless the defendant has been granted
permission to participate with counsel in the defense.”).

3

litigant5 On October 29, 2013, Defendant filed a motion for appointment of new
counsel.

On November l, 2013, Defendant appeared for sentencing The Court
attempted to address the merits of Defendant’s pending motions but was unable to
consider Defendant’s contentions on the merits because Defendant used profane
language and acted in a disrespectful manner.6 After warning Defendant several
times, the Court held Defendant in contempt and continued Defendant’s sentencing
hearing. By Order dated November l, 2013, the Court sentenced Defendant to 70
days at Level V for Criminal Contempt (“Contempt Order”). On November 13,
2013, Defendant filed an appeal of the Contempt Order with the Delaware
Supreme Court.

On November l4, 2013, Defendant submitted an apology to the Court for
Defendant’s conduct during the November l, 2013 hearing. The same day,
Defendant filed a Motion for Reargument, Appointment of Conflict Counsel,
Acquittal, New Trial, and Taking of New Evidence as a self-represent litigant By
Order dated November l4, 2013, the Court denied Defendant’s Motion. On
November 20, 2013, Defendant filed a renewed motion for appointment of counsel

as a self-represented litigant.

 

5 Super. Ct. Crim. R. 29.
6 See State v. Holmes, I.D. No. 1210019908, at 5:9-9:12 (Del. Super. Nov. l, 2013)

(TRANSCRIPT).

On March 3l, 2014, the Court held an office conference with the State and
Trial Counsel to address the pending matters in Defendant’s case. By Order dated
April 4, 2014, the Court scheduled a hearing for sentencing and to address the
pending post-trial motions. The Court also denied the State’s request to play a
YouTube “anti-snitch” video during sentencing7

On April 8, 2014, Defendant filed a notice of voluntary dismissal for
Defendant’s appeal of the Contempt Order. Shortly thereafter, the Court vacated
the Contempt Order.

On May l6, 2014, the Court held a hearing to address Defendant’s pending
post-trial motions and sentencing Trial Counsel presented Defendant’S Motion for
Judgment of Acquittal on Defendant’s behalf. Upon consideration of the parties’
arguments, the Court denied Defendant’s Motion for Judgment of Acquittal and
granted the State’s Motion to Declare Defendant an Habitual Offender pursuant to
ll Del. C. § 4214(a).

With respect to sentencing, the State requested that the Court impose 20
years at Level V and Defendant requested the minimum-mandatory sentence of 8
years. The Court noted that Defendant had only been released from federal prison
for eight months at the time he committed the offense for which he was convicted

by the jury. Also, Defendant had a significant criminal history. By Order dated

 

7 According to the State, the “anti-snitch” video featured Defendant. The Court did
not consider the video or the State’s contentions with respect to the video.

5

May 16, 2014, effective March 7, 2013, the Court sentenced Defendant to l6 years
at Level V with credit for 7 days previously served followed by 6 months at Level
IV DOC discretion, followed by 6 months at Level lll.

On May 21, 2014, Defendant filed an appeal of Defendant’s conviction with
the Delaware Supreme Court. Santino Ceccotti, Esquire (“Appellate Counsel”)
was appointed to represent Defendant on appeal. By Order dated January 29,
2015, the Delaware Supreme Court affirmed Defendant’s conviction, finding that
“the State offered sufficient evidence so that a rational trier of fact, viewing the
evidence in the light most favorable to the State, could have found that [Defendant]
knowingly possessed a firearm in violation of 11 Del. C. § 1448 beyond a
reasonable doubt.” 8

On February 24, 2015, Defendant filed a Motion for Reduction of Sentence
as a self-represented litigant. By Order dated March 4, 2015, the Court denied
Defendant’s Motion.

On February 27, 2015, Defendant filed a Motion for Appointment of
Postconviction Counsel as a self-represented litigant By Order dated March 12,
2015, the Court granted Defendant’s Motion for Appointment of Postconviction

Counsel. Patrick Collins, Esquire (“Rule 61 Counsel”) was appointed to represent

Defendant for Defendant’s postconviction proceedings

 

8 Holmes v. State, 2015 WL 428071, at *l (Del. Jan. 29, 2015).
6

On October 20, 2015, Rule 61 Counsel filed a Motion for Postconviction
Relief on Defendant’s behalf (“PCR Motion”). On January 27, 2016, Rule 61
Counsel filed a Motion to Withdraw as Counsel. This is the Court’s decision
regarding Defendant’s PCR Motion and Rule 61 Counsel’s Motion to Withdraw as
Counsel.

II. CONSIDERATION OF PROCEDURAL BARS

Defendant filed the PCR Motion on October 20, 2015. Accordingly, the
June 2015 version of Superior Court Criminal Rule 61 (“Rule 61”) applies.9
Postconviction relief is a “collateral remedy which provides an avenue for
upsetting judgments that have otherwise become final.”lo To protect the finality of
criminal convictions, the Court must consider the procedural requirements for
relief set out under Rule 61(i) before addressing the merits of the motion.]1

Rule 6l(i)(1) bars a motion for postconviction relief if the motion is filed
more than one year from the final judgment of conviction.12 This bar is
inapplicable as Defendant’s PCR Motion is timely. Rule 6l(i)(2) bars successive

motions for ostconviction relief.13 This bar is ina licable as this is Defendant’s
13 PP

 

9 See Washington v. State, 2014 WL 4243590, at *2 (Del. Aug. 26, 2014) (applying
the version of Rule 61 in effect when defendant filed his original postconviction
motion).

10 Flamer v. S¢a¢e, 585 A.2d 736, 745 (D@l. 1990).

“ rounger v. S¢a¢e, 580 A.zd 552, 554 (Del. 1990).

12 super. Ct. Crim. R. 61(i)(1).

‘3 sup@r. Ct. Crim. R. 61(i)(2).

first postconviction motion. Rule 6l(i)(3) bars relief if the postconviction motion
includes claims that were not asserted in prior proceedings leading to the final
judgment, unless the movant shows cause for relief from the procedural bars and
prejudice from a violation of the movant’s rights.14 Moreover, Rule 6l(i)(4) bars
relief if the postconviction motion includes grounds for relief formerly adjudicated
in any proceeding leading to the judgment of conviction, in an appeal, or in a
postconviction proceeding15 Rules 61(i)(3) and 61(i)(4) are inapplicable because
Defendant’s claims for ineffective assistance of counsel could not have been raised
on direct appeal.16

The procedural requirements of Rule 6l(i) are satisfied. Accordingly, the
Court will address Defendant’s PCR Motion on the merits.
III. STANDARD FOR INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant alleges that Trial Counsel and Appellate Counsel provided

ineffective assistance of counsel. The standard used to evaluate claims of

 

"_' Super. Ct. Crim. R. (il(`i)(3).

I° sup@r. Ct. Crim. R. 61(1_)(4).

m T/ie[er)?crrque v. S!a£ce, 2016 WL 556631, at *3 (Del. Feb. ll, 2016) (“[T]his
Court will not review claims of ineffective assistance of counsel for the first time
on direct appeal.”); Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 2l, 2013)
(“It is well-settled that this Court will not consider a claim of ineffective assistance
that is raised for the first time in a direct appeal.”).

8

ineffective counsel is the two-prong test articulated by the United States Supreme
Court in Stricklana' v. Washington,17 as adopted in Delaware.18

Under Strickland, the movant must show that (1) trial counsel’s
representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for trial counsel’s unprofessional errors, the result
of the proceeding would have been different19 Failure to prove either prong will
render the claim insufficient20 The Court shall dismiss entirely conclusory
allegations of ineffective assistance21 The movant must provide concrete
allegations of prejudice, including specifying the nature of the prejudice and the
adverse affects actually suffered.22

With respect to the first prong-the performance prong_the movant must
overcome the strong presumption that counsel’s conduct was professionally
reasonable23 To satisfy the performance prong, Defendant must assert specific

allegations to establish that Trial Counsel and Appellate Counsel acted

 

12 466 U.s. 668 (1984).

18Albw»y v. S¢a¢e, 551 A.2d 53 (Del. 1988).

19 Szrickland, 466 U.s. 61 687.

211 Id. 61688; Dawson v. S¢a¢e, 673 A.2d 1186, 1196 (Del. 1996).

21 rounger, 580 A.2d at 555; Jordan v. S¢aze, 1994 wL 466142, at *1 (Del. Aug.
25,1994)

22 szrickzand, 466 U.s. 61692; Daws@n, 673 A.2d at 1196.

22 S¢rzckland, 466 U.s. at 687_88.

”24 With respect to

unreasonably as viewed against “prevailing professional norms.
the second prong_the prejudice prong_Defendant must show that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”25 Cumulative error can satisfy the

prejudice prong when it undermines confidence in the verdict.26

IV. TRIAL COUNSEL MET THE STANDARDS FOR EFFECTIVE
ASSISTANCE OF COUNSEL

The PCR Motion raises eight grounds in support of the claim that Trial
Counsel provided ineffective assistance of counsel. Defendant argues that Trial
Counsel provided ineffective assistance by (l) failing to file a pretrial motion to
compel the State to disclose the identity of the informant involved in Defendant’s
arrest; (2) failing to obtain an expert witness to testify in support of Defendant’s
intoxication defense; (3) failing to withdraw as counsel in a timely fashion; (4)
failing to prepare and renew Defendant’s Motion for Judgment of Acquittal; (5)
failing to object to the State’s use of the phrase “traffic stop” during trial; (6)
failing to file a motion to sever Defendant’s PFBBP charge from Defendant’s

CCDW charge; (7) failing to inform Defendant of the correct plea agreement; and

 

24 Ia'. at 688; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996) (“Mere allegations
of ineffectiveness will not suffice.”).
25 Ploof v. State, 75 A.3d 811, 821 (Del. 2013) (quoting Strickland, 466 U.S. at

694).
26 566 starling v. Sza¢e, 2015 wL 8758197, at *14_15 (Del. Dec. 14, 2015).

10

(8) allowing the State to present false information in Defendant’s presentence
investigation report.

As discussed below, these claims fail. Trial counsel’s performance was
reasonable and Defendant did not suffer prejudice Trial Counsel met the standard
for effective representation of Defendant.

A. No Pretrial Motion Regarding Confidential Informant

Defendant asserts that Trial Counsel provided ineffective assistance of
counsel by failing to file a pretrial motion to disclose the identity of the informant
involved in Defendant’s October 27, 2012 arrest. Defendant claims that the
informant provided an unreliable report, and that the informant’s identity would
have benefitted Defendant at trial. Specifically, Defendant argues that the
informant’s identity would have allowed Defendant to challenge the stop that led
to Defendant’s arrest, Furthermore, Defendant asserts that the informant may have
provided eyewitness testimony to support Defendant’s intoxication defense

Trial Counsel’s decision not to file this motion was objectively reasonable
By letter dated April 30, 2013, Trial Counsel informed Defendant that Trial
Counsel had researched the validity of Defendant’s car stop and found no

meritorious grounds to file a suppression motion.27 Trial Counsel forwarded case

 

27 Letter from Trial Counsel to Def., State v. Holmes, I.D. No. 1210019908 (Del.
Super. Apr. 30, 2013).

ll

law to Defendant that supported this conclusion.28 The record does not suggest
that Trial Counsel overlooked viable arguments to challenge Defendant’s arrest or
that Trial Counsel’s analysis of this issue fell below “prevailing professional
norms.”29 Strickland does not require Trial Counsel to file motions that are
frivolous under Trial Counsel’s professional judgment.30

Moreover, there is no reasonable probability that Trial Counsel’s failure to
file this motion impacted the outcome of Defendant’s trial. Both parties offered
eyewitness testimony regarding Defendant’s mental and physical state at the time
of Defendant’s arrest. Defendant does not establish that the informant’s testimony
on this issue would have been more probative, or that the testimony would have
materially aided Defendant’s intoxication defense The allegations of prejudice
related to this claim are speculative and insufficient to satisfy the Strickland
standard.

B. No Expert Witness for Intoxication Defense

Defendant alleges that Trial Counsel provided ineffective assistance of
counsel by failing to hire an expert witness to Support Defendant’s intoxication
defense Defendant argues that an expert may have offered scientific testimony

regarding the relationship of Defendant’s intoxication to Defendant’s state of mind

 

28 Id.

22 S¢rzckland, 466 U.s. at 688.

211 stare v. McGloz¢en, 2011 wL 987534, at *5 (Del. super. Mar. 21, 2011), af'd,
26 A.3d 214(1)61.2011).

12

at the time of arrest. Defendant argues that this testimony would “look more
credible in the jury’s eyes” and could have “affected the outcome of the verdict
itself.”31

Trial Counsel’s decision not to hire an expert was not ineffective assistance
of counsel. An attorney may make certain strategic choices when presenting a
client’s case,32 so long as the choice is “well within the range of professionally
reasonable judgments . . . .”33 For example, deciding which witnesses to call, if
any, is a permissible strategic choice34 A reasonable attorney may have decided
that Defendant’s case did not warrant expert testimony or that introducing expert
testimony would be counter-productive and harm Defendant at trial. Furthermore,
both the State and Defendant relied on opinion testimony from lay witnesses to
support or discredit Defendant’s intoxication defense Lay witnesses may provide
opinion testimony regarding an individual’s intoxication or impairment if the

testimony is based upon personal knowledge35

 

31 PCR Motion at l.

22 S¢,»ickland, 466 U.s. at 690_91.

22 1a at 699

34 Cooke v. State, 977 A.2d 803, 840-41 (Del. 2009) (quoting Wainwright v. Sykes,
433 U.S. 72, 93 (1977)).

35 Delaware Rule of Evidence 701 permits lay testimony in the form of opinion if
the testimony is “(a) rationally based on the perception of the witness and (b)
helpful to a clear understanding of the witness’ testimony or the determination of a
fact in issue and (c) not based on scientific, technical or other specialized
knowledge within the scope of rule 702.” D.R.E. 701. Rule 701 “permits a lay
witness to testify about his own impressions when they are based on personal

13

The Strz`ckland analysis presumes that Trial Counsel engaged in objectively
reasonable strategic decision-making36 The Court finds that the decision by Trial
Counsel not to hire an expert witness was reasonable and did not have a negative
impact on Defendant’s interests at trial.37

C. Remaining as Trial Counsel

Defendant alleges that Trial Counsel provided ineffective assistance of
counsel by failing to seek Court permission to withdraw as counsel in a timely
manner. Defendant asserts that Defendant’s consistent dissatisfaction with Trial
Counsel created a disincentive for Trial Counsel to advocate on Defendant’s
behalf. Defendant argues that Trial Counsel had an inherent conflict of interest
that made it impossible for Trial Counsel to provide effective representation

A defendant’s right to court-appointed counsel it is not an absolute right to
the defendant’s counsel of choice38 For example, a defendant does not have the

right to an attorney who never disagrees on trial strategy.39 Although counsel has a

 

observation.” Cooke v. State, 97 A.3d 513, 547 (Del. 2014) (quoting Washz'ngton v.
State, 2008 WL 697591, at *2 (Del. Mar. 17, 2008)). See also Wagner v. Shanks,
194 A.2d 701, 706 (Del. 1963) (citing State v. Durant, 188 A.2d 526 (Del. 1963))
(“[l]t is not error for a witness to express an opinion upon facts testified to when all
men are qualified to form an opinion upon them, e.g., drunkenness.”).

26 srrzckland, 466 U.s. at 687_88.

22 see Aude v. s¢a¢e, 2004 wL 691922, at *3 (D61. Mar. 12, 2004).

22 Bum»on v. s¢a¢e, 897 A.2d 758, 762 (De1. 2006) (citing Lewis v. s¢a¢e, 757 A.2d
709, 713 (Del. 2000)).

22 szmerman v. sm¢@, 2010 wL 546971, at *2 (D61. Feb. 12, 2010) (citing
Bultron, 897 A.2d at 763).

14

duty to zealously represent his client’s interest, consent is not required for every
tactical decision.40 Moreover, counsel is obligated to act “within the bounds set
forth under the rules of ethics” at all times during representation41

This Court is satisfied that Defendant’s conduct did not compromise Trial
Counsel’s ability to effectively advocate on Defendant’s behalf.42 The record
reflects that Trial Counsel consulted with Defendant in order to present an
appropriate and well-considered defense consistent with Defendant’s preference
for a trial strategy of impairment Trial Counsel struck the appropriate balance
between providing significant leeway for Defendant to steer the course of trial and
deferring to Defendant where the Delaware Rules of Professional Conduct allowed
Trial Counsel to do so. ln consideration of Defendant’s case and the evidence
presented by the State, Trial Counsel obtained a favorable verdict on Defendant’s

behalf.

 

42 Zimmerman, 2010 wL 546971, at *2.

41 Id. a *2 (citing 177 re Abbott, 925 A.2d 482, 487_88 (Del. 2007)).

42 See, e.g., State v. Holmes, I.D. NO. 1210019908, at 325-3314 (Del. Super. Mar.
31, 2014) (TRANSCRIPT) (“MR. WEILER: My position is that l don’t have any
problems about representing Mr. Holmes, even though he’s been somewhat
verbally abusive . . . l don’t bear him any ill will. l think he got a good result from
the trial.”); State v. Holmes, I.D. No. 1210019908, at 4:23-5:5 (Del. Super. July
19, 2014) (TRANSCRIPT) (“MR. WEILER: . . . I felt that, on one hand l think Mr.
Holmes is just agitated, and hot tempered, and blurts things out. So l’m not - l
don’t think my ability to represent him is compromised, and I’m willing to go
forward. l’ve had clients say things to me before l’ve been doing this a lot of
years.”).

15

The jury’s verdict does not indicate that Trial Counsel performed deficiently.
To the contrary, Trial Counsel achieved a good result for Defendant The State
presented sufficient evidence at trial to sustain Defendant’S conviction.43 There is
no reasonable probability that another attorney would have achieved a more
favorable result.44

D. Motion for Judgment of Acquittal

Defendant asserts that Trial Counsel provided ineffective assistance of
counsel by failing to renew and prepare a motion for judgment of acquittal.
Defendant argues that the Court may have granted a motion for judgment of
acquittal if Trial Counsel had agreed to prepare it.

This is an incorrect assessment of the proceedings Trial Counsel did not
unreasonably refuse to prepare Defendant’s Motion for Judgment of Acquittal. By
letter dated July 23, 2013, Trial Counsel informed Defendant that, according to
Trial Counsel’s research and consistent with Trial Counsel’s exercise of
professional judgment, a motion for judgment of acquittal would be unsuccessful.45

Trial Counsel informed Defendant that such a motion was unsupported by law, and

that Trial Counsel’s colleagues specializing in criminal appeals supported this

 

22 Holmes v. s¢a¢e, 2015 wL 428071, at *1.
44 See Bultron, 897 A.2d at 763 (“Absent good cause for dismissing court-
appointed counsel, a defendant has two options: to proceed with court-appointed

counsel or to proceed pro se.”).
45 Letter from Trial Counsel to Def., State v. Holmes, I.D. No. 1210019908 (Del.

Super. July 23, 2013).
16

conclusion.46 Strickland does not require Trial Counsel to file motions that have
no basis in law and no factual support.47

Moreover, the fact that Trial Counsel did not renew the motion for judgment
of acquittal at the close of the evidence did not have any impact on the outcome of
Defendant’s proceedings The Court did not base its May 16, 2014 ruling denying
Defendant’s Motion for Judgment of Acquittal on procedural grounds ln other
words, the timing of the motion’s presentation was not significant Rather, the
Court considered Defendant’s arguments on the merits and determined that a
renewed motion at the close of the evidence would have been denied under Rule
29.48 Failing to make a motion for judgment of acquittal that would have been
unsuccessful under the circumstances does not constitute ineffective assistance of

counsel.49

 

46 Id.

22 McGlO¢¢en, 2011 wL 987534, 61 *5.

42 super. Ct. Crim. R. 29. slate v. Holmes, r.D. N6. 1210019908, 6120;15_23;9
(Del. Super. May 16, 2014) (TRANSCRIPT).

42 P;erce v. sma 2009 wL 189150, at 242 (Del. Jan. 16, 2009). see also slate v.
Nichols, 2004 WL 3038024, at *4 (Del. Super. Dec. 27, 2004) (denying
defendant’s claim of ineffective assistance of counsel for failure to file a motion
for judgment of acquittal because the Supreme Court had already found that there
was sufficient evidence to support a conviction).

17

E. Remaining Claims against Trial Counsel are Conclusory and
Unsubstantiated

Defendant argues that Trial Counsel provided ineffective assistance of
counsel by failing to object to the State’s use of the phrase “traffic stop” during
trial. Trial Counsel did not deviate from professional norms by failing to object to
this phrase, and the failure to object did not impact the outcome of Defendant’s
trial. This claim is speculative and unsupported by the record

The allegation that Trial Counsel provided ineffective assistance of counsel
by failing to sever Defendant’s PFBPP charge from Defendant’s CCDW charge is
similarly unsubstantiated Trial Counsel’s decision to refrain from severing
Defendant’s charges did not create confusion or prejudice on the part of the jury.
The record reflects that Trial Counsel took a well-reasoned and strategic approach
to Defendant’s status as a prohibited person during trial. Furthermore, the Court
made considerable efforts to ensure that Defendant understood Trial Counsel’s
approach to Defendant’s prohibited status and the State’s burden to prove every
element of the charged offenses beyond a reasonable doubt.50 This claim is

speculative and unsupported by the record

 

211 slate v. Holmes, I.D. N6. 1210019908, at 5;3_17;3 (D61. super. Ju1y 18, 2013)
(TRANSCRIPT); Ia’. at 38:15-40:8; State v. Holmes, I.D. No. 1210019908, at
72:14-74:11 (Del. Super. July 19, 2013) (TRANSCRIPT). See also State v.
Holmes, I.D. No. 1210019908, at 6:16 ~ 7:6 (Del. Super. Nov. 1, 2013) (providing
the Court’s perspective of Trial Counsel’s approach to Defendant’s status as a
prohibited person).

18

Defendant argues that Trial Counsel provided ineffective assistance of
counsel by failing to communicate the correct plea offer to Defendant prior to
Defendant’s final case review. However, the record shows that the State, Trial
Counsel, and the Court made significant efforts to ensure that Defendant
understood the State’s proposed plea. The Court engaged Defendant in multiple
colloquies and provided numerous opportunities for Defendant to confer with Trial
Counsel prior to rejecting the offer.$] The record reflects that Defendant
knowingly, intelligently, and voluntarily elected to proceed to trial with a full
understanding of the potential consequences stemming from a guilty verdict. This
claim is factually inconsistent with the record

Finally, Defendant argues that Trial Counsel provided ineffective assistance
of counsel by allowing the State to present false information in Defendant’s
presentence investigation report (“PSI”), which caused the Court to impose a
harsher sentence Defendant’s claim is not supported by the record Moreover, no
false information was included as the Court’s stated basis for its May 16, 2014
Sentencing Order. The Court noted as significant Defendant’s lack of amenability
to community-based supervision, his history of violence in the community, and his

status as an habitual offender. The Court also noted that Defendant was subject to

 

21 slate v. Holmes, l.D. NO. 1210019908, at 9;17_12;17 (De1. super. June 11,
2013) (TRANSCRIPT); slate v. Holmes, I.D. NO. 1210019908, ar 21;1-34;15
(Del. Super. July 18, 2013) (TRANSCRIPT).

19

supervised release on a federal conviction at the time of his arrest, and was
released from prison only eight months before Defendant’s claim that
Defendant’s PSI contained false information or that the alleged false information
impacted the Court’s sentencing decision is speculative and does not Satisfy the
Strickland Standard.

All of Defendant’s claims against Trial Counsel are not supported by the
record or by the law. Trial Counsel provided effective assistance under a
Strickland analysis Defendant is not entitled to postconviction relief.

V. THE CLAIMS AGAINST APPELLATE COUNSEL ARE
SUMMARILY DISMISSED

ln support of the claim that Appellate Counsel provided ineffective
assistance of counsel, Defendant argues that Appellate Counsel (1) failed to
disclose a conflict of interest; (2) failed to argue that the Court abused its discretion
by denying Defendant’s applications for a new attorney; (3) failed to support
Defendant’s Appeal with decisional precedent; (4) failed to file a reply brief; (5)
failed to challenge the Court’s May 16, 2014 Bench Ruling regarding Defendant’s
post-trial Motions; (6) failed to challenge certain evidentiary rulings; and (7) failed
to file a motion for reargument after the Delaware Supreme Court affirmed

. . 2
Defendant’s conv1ct10n.5

 

22 see Holmes v. s¢a¢e, 2015 wL 428071, ar *1.
20

Rule 61(d)(5) provides that “[i]f it plainly appears from the motion for
postconviction relief and the record of prior proceedings in the case that the
movant is not entitled to relief, the judge may enter an order for its summary
dismissal and cause the movant to be notified” lt plainly appears that the claims
against Appellate Counsel have no basis in the record and are not supported by
law. Defendant is not entitled to relief on these claims Therefore, summary
dismissal is appropriate
VI. RULE 61 COUNSEL’S MOTION TO WITHDRAW

After a thorough review of the record and a careful and conscientious
analysis of Defendant’s case materials, Rule 61 Counsel contends that he is unable
to ethically assert any meritorious postconviction claims on Defendant’s behalf.53
Accordingly, Rule 61 Counsel filed a Motion to Withdraw as Counsel.54
Withdrawal may be appropriate when “counsel considers the movant’s claim to be
so lacking in merit that counsel cannot ethically advocate it, and counsel is not
,,55

aware of any other substantial ground for relief available to the movant . . .

Moreover, the Court has conducted a review of the record and has determined that

 

53 Despite taking the position that there are no meritorious grounds for relief, Rule
61 Counsel has filed Defendant’s submissions for the Court’s consideration
pursuant to his continuing duty as appointed counsel. See Super. Ct. Crim. R.
61(e)(5)-(6).

54 Super. Ct. Crim. R. 61(e)(6).

22 1a

21

Defendant’s motion does not contain any reasonable ground for relief.56
Therefore, Rule 61 Counsel shall be permitted to withdraw.
VII. CONCLUSION
Upon consideration of the parties’ submissions statutory and decisional law,
and the entire record in this case, the Court finds that that there are no meritorious
grounds for postconviction relief and that Trial Counsel and Appellate Counsel
provided effective assistance of counsel consistent with the Strickland standard
NOW, THEREFORE, this 15th day of December, 2016, Defendant’s
Motion for Postconviction Relief is hereby DENIED and Rule 61 Counsel’s
Motion for Withdraw as Counsel is hereby GRANTED.

IT IS SO ORDERED.

Andrea L. Rocane[[i

 

The Honorable Andrea L. Rocanelli

 

22 stale v. Wes¢, 2013 wL 6606833, at *3 (Del. super. Dec. 12, 2013).
22

