IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 0703000796

JOSE D. BEZAREZ,

<
Ne ee ee eee eae ae es es SS

Defendant.

Submitted: June 19, 2020
Decided: June 25, 2020

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED AND

DEFENDANT’S MOTION FOR APPOINTMENT OF COUNSEL
SHOULD BE DENIED

Maria T. Knoll, Chief of Appeals, Department of Justice, Wilmington, Delaware,
Attorney for the State of Delaware.

Jose Bezarez, James T. Vaughn Correctional Center Smyrna, DE, self-represented.

MAYER, Commissioner
This 25" day of June, 2020, upon consideration of Defendant’s Motion for
Postconviction Relief and Motion for Appointment of Counsel, I hereby recommend
that the motions be denied.

BACKGROUND, FACTS AND PROCEDURAL HISTORY

In 2008, Jose D. Bezarez (“Defendant”) was convicted of Murder in the First
Degree, Felony-Murder, Robbery First Degree, Possession of a Firearm During the
Commission of a Felony (“PFDCF”) and related offenses. Defendant’s conviction
was affirmed on appeal on October 30, 2009.' Defendant filed his first Motion for
Postconviction Relief on October 28, 2010 (the “First Motion”).? Defendant’s First
Motion presented several claims including allegations of ineffective assistance of
counsel. The Superior Court denied the First Motion and the Delaware Supreme
Court affirmed the decision.

On July 15, 2019, almost ten (10) years after Defendant’s conviction became
final, Defendant filed a second Motion for Postconviction Relief (the “Second

Motion”).* Along with the Second Motion, Defendant filed a Motion for the

 

' Bezarez v. State, 983 A.2d 946, 947 (Del. 2009).
2 DL. #s 127 & 128.
3 DI. #145; Bezarez vy. State, 2012 WL 1390247, at *1 (Del. Apr. 20, 2012).

4 DL # 165.
Appointment of Counsel.? In summary, Defendant’s Second Motion asserts the
following claims: (1) trial counsel was ineffective for failing to review discovery
and apprise him of the case; (2) newly discovered evidence of misfeasance and
malfeasance from the State’s Firearm’s Expert Carl M. Rone entitles Defendant to
reopen his case (hereinafter “Ground Two”); (3) Defendant is entitled to relief due
to the cumulative prejudicial effect of the errors described; and (4) the interest of
Justice is not served by his continued incarceration.

The Court directed the State to file a Response to the Second Motion, limited
to “Ground Two: Newly Discovered Evidence.”° The Court provided Defendant
with an opportunity to file a reply. However, in addition to filing a Reply, Defendant
also filed a “Renewed Motion to Appoint Counsel and Expansion of Record
Request” (the “Renewed Motion”).’ Both the Reply and the Renewed Motion
present additional arguments that were not part of the Second Motion when filed.
After consideration of the record of this matter, I do not believe any further briefing

would aid the Court’s final decision.

 

> DI. # 166.
° DI. #174.

DLL #178.
DEFENDANT’S SECOND MOTION IS PROCEDURALLY BARRED

Before considering the merits of the claims, the Court must first determine
whether there are any procedural bars to the motion.® Defendant’s Second Motion
is procedurally barred for several reasons. First, the Second Motion, having been
filed more than one year from the date of the Supreme Court’s Mandate on direct
appeal, is untimely.’ In addition, unless Defendant is able to meet an exception to
the bars, his Second Motion shall be summarily dismissed as repetitive.!° Defendant
was required to include all bases for relief available to him in his First Motion."!
Defendant asserted ineffective assistance of counsel claims in his First Motion, and
any subsequent attacks are now prohibited. Finally, 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. To the extent

 

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

° Super. Ct. Crim. R. 61(m)(2) and Super. Ct. Crim. R. 61(i)(1). Ineffective assistance of counsel
claims are subject to the same time-bar. See Felton v. State, 2008 WL 308231 (Del. Feb. 1, 2008).
Even assuming application of the previous version of Rule 61, Defendant’s motion was filed far
beyond the three-year limitation.

'© Super. Ct. Crim. R. 61(d)(2) & (i)(2)(i).

'' Super. Ct. Crim. R. 61(i)(2)(ii).
Defendant failed to present his claims through the First Motion, or on appeal of that
matter, the claims were waived.

Through his Reply and Renewed Motion, Defendant argues that no one knew
of the amendment to Rule 61 in June of 2014 and the new version of the rule should
not apply retroactively to Defendant. Rather, Defendant advocates for the Court to
apply the 2008 version of Rule 61(i)(5) and grant the Motion upon Defendant’s
demonstration ofa colorable claim of a miscarriage of justice. Defendant mistakenly
believes that this is an issue of first impression in Delaware.

The order amending Rule 61 provides that “[t]his amendment shall be
effective on June 4, 2014 and shall apply to postconviction motions filed on or after
that date.”'? Delaware has consistently upheld the application of the 2014
amendment to motions filed after its enactment. See e.g, Turnage v. State, 2015
WL 6746644 (Del. Nov. 4, 2015); Durham v. State, 2017 WL 5450746 (Del. Nov.
13, 2017); State v. Taylor, 2018 WL 3199537 (Del. Super. June 28, 2018).

Further, Defendant was not deprived of a substantial right to pursue his claims
because he had the opportunity to submit these claims through his First Motion. The
ineffective assistance claims presented on pages 8-9 of Defendant’s Reply do not

raise any new evidence nor refer to new law, but rather refer to the trial record and

 

'2 Order Amending Super. Ct. Crim. R. 61.
perceived errors of counsel at that time. These claims should have been raised when
he presented the First Motion. Notably, Defendant filed his Second Motion
approximately five (5) years after the amendment in 2014. Defendant’s significant
delay in challenging the amendment and presenting his claims is indisputably
untimely. Application of the amended Rule does not violate Defendant’s rights
because the rule was well-established and regularly used long before he filed his
Second Motion.'* Having found that the Motion is procedurally barred, the Court
must next determine whether Defendant’s claims fit within an exception to the bar.

DEFENDANT’S CLAIM OF NEW EVIDENCE LACKS MERIT

Defendant’s sole remaining claim, Ground Two, asserts that the events
relating to the State’s Firearm’s Expert Carl M. Rone (“Rone”), constitutes newly
discovered evidence justifying a new trial. To prevail, Defendant must plead with
particularity that there is new evidence creating a strong inference that he is actually
innocent of the facts underlying the acts leading to the conviction. '*

The events leading to Defendant’s conviction occurred on February 24, 2007.
Defendant and a few others confronted three men in a parking lot, and a struggle
ensued between Defendant and Maximo Campusano (the “Victim”). The Victim

was shot twice and died. Trial began in September of 2008. Defendant do not deny

 

'3 State v. Taylor, 2018 WL 3199537 (Del. Super. June 28, 2018).

'4 Super. Ct. Crim. R. 61(d)(2).
that the altercation took place or that he was carrying a gun at the time. However,
Defendant testified that the gun went off accidentally. He also told police that he
had purchased the gun one or two days before the shooting. In response to his
testimony, the State countered with evidence that Defendant had fired the same gun
into the floor of his mother’s apartment a few weeks prior to the shooting. Rone
testified that the firearm was in perfect operating condition and that the bullets found
at the scene were fired from the recovered firearm. Rone also testified that the
projectiles from the February 24, 2007 incident matched those found in Defendant’s
mother’s apartment. Defendant presented his own firearm expert, Frederick
Wentling (“Wentling”) who conceded that his findings were consistent with Rone’s
on these latter issues.

In 2018 — ten years after the trial - Rone was convicted of Theft by False
Pretense and Falsifying Business Records. Defendant believes, consistent with
Fowler v. State,'° that Rone’s conviction is newly discovered evidence rendering
Defendant’s conviction invalid. Defendant’s case though is markedly dissimilar
from Fowler. In the present case, Defendant does not present any reliable credible
evidence that Rone’s testimony at trial was incorrect or falsified. Defendant

admitted at trial that he owned the firearm, that he struggled with the victim, and that

 

'S 194 A.3d 16 (Del. 2018).
the gun “accidentally” fired. In addition, eyewitnesses testified at trial implicating
Defendant in the shooting and there was video corroborating the State’s case.
Defendant’s strategy at trial was to acknowledge his involvement in the incident but
to argue that he had no intent to fire the gun. Defendant also presented his own
firearms expert at trial and effectively cross-examined Rone. Unlike Fowler, Rone’s
testimony was not a key component of identifying the defendant as the perpetrator.!®
Finally, Rone’s falsification of payroll records in 2016 and 2017, is sufficiently
attenuated from his expert firearms work by both subject matter and time.!”

Based upon a review of the record in this matter, Defendant has failed to meet
the pleading requirements of demonstrating that this “newly discovered evidence”

establishes that he is actually innocent of the facts giving rise to the conviction.'8

 

'© George v. State, 2019 WL 1590631 (Del. Apr. 12, 2019) (citing Fowler, 194 A.3d at 19-20,
26).

'" See e.g. State v. Pierce, 2018 WL 47771787 (Del. Super. Oct. 1, 2018) (denying motion in
limine to exclude Rone’s chain of custody testimony); Cannon v. State, 127 A.3d 1 164, 1168 (Del.
2015) (affirming dismissal of postconviction relief motion because movant failed to show how
evidence of misconduct by Office of Chief Medical Examiner affected his conviction).

'8 See e.g. State v. George, 2018 WL 4482504, at *3 (Del. Super. Sept. 17, 2018) (denying motion
for postconviction relief on basis that eyewitnesses supported defendant’s guilt, the defendant was
apprehended with the weapon, and Rone’s testimony was “superfluous.”), adopted 2019 WL
338669 (Del. Super. Jan. 4, 2019), aff'd 2019 WL 1590631 (Del. Apr. 12, 2019); State v. Romeo,
2019 WL 918578 (Del. Super. Feb. 21, 2019) (denying postconviction motion because the case
did not turn on Rone’s testimony and the State had sufficient eyewitnesses and uncontroverted
evidence). See also State v. Sykes, 2017 WL 6205776, at *5 (Del. Super. Dec. 7, 2017), quoting
Phlipot v. Johnson, 2015 WL 1906127, at *4 (D. Del. 2015) (actual innocence requires a showing
that in light of the new evidence no juror acting reasonably would have voted to find defendant
guilty beyond a reasonable doubt).
Defendant’s Motion for Appointment of Counsel
Pursuant to Superior Court Criminal Rule 61(e)(5), the court “may” appoint
counsel for a second postconviction relief motion if it satisfies the pleading
requirements of Rule 61(d)(2)(i) or (ii). Defendant’s motion does not satisfy these

requirements. Therefore, the Motion for Appointment of Counsel should be denied.

For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief
should be DENIED and Defendant’s Motion for Appointment of Counsel should be
DENIED.

IT ISSO RECOMMENDED.

  

 

 

foner Katharine L. Mayer

cc: Prothonotary
Maria T. Knoll, Esquire
Jose Bezarez
