            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                      IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE,                           )
                                             )
                     Plaintiff,              )
                                             )
                                             )
       v.                                    )       Cr. ID. No.   1411011704 and
                                             )                     1401016042
                                             )
RYAN BRISCOE,                                )
                                             )
                     Defendant.              )


                                  Submitted: April 8, 2015
                                   Decided: July 20, 2015

       COMMISSIONER’S REPORT AND RECOMMENDATION THAT

            DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                         SHOULD BE DENIED.

Mark A Denney, Esquire, Delaware Department of Justice, 820 N. French St. 7th Floor,
Criminal Division, Wilmington, Delaware, 19801, Attorneys for the State.

Thoams A. Foley, Esquire, Attorney at Law, 1905 Delaware Avenue, Wilmington,
Delaware, 19806, Attorneys for Defendant.




MANNING, Commissioner
           This 20th day of July, 2015, upon consideration of defendant Ryan Briscoe’s

Motion for Postconviction Relief, the Court finds the following:

                              FACTS AND PROCEDURAL HISTORY

           On November 12, 2013, Briscoe was shot by unidentified intruders during a home

invasion at his residence (a boarding house) and transported to a hospital by a friend.

After police spoke with Briscoe at the hospital they responded to the crime scene where

they located a loaded 9 millimeter handgun, marijuana and 96 clear plastic bags of heroin

in a hallway closet adjacent to his bedroom. On January 30, 2104, Briscoe was arrested

and charged with, inter alia, Drug Dealing, Possession of a Firearm During the

Commission of a Felony and Possession of a Firearm and Ammunition by a Person

Prohibited. After his arrest, Briscoe was released on bond and retained Mr. Foley to

represent him (Defense Counsel). Briscoe was indicted on March 17, 2014 (case ID

#1401016042).           Trial was initially scheduled for September 23, 2014, but was

rescheduled twice, until December 4, 2014. In preparation for trial, Defense Counsel

filed numerous motions with the Court, including a motion to sever, motion to suppress

statements, motion in limine to exclude DNA evidence, and finally, a motion related to

the on-going scandal at the Office of the Chief Medical Examiner. 1

           While Briscoe was pending trial in case ID #1401016042, he was arrested on

November 19, 2004—again for Drug Dealing, Possession of a Firearm During the

Commission of a felony and other related charges (case ID # 1411011704). It turns out,

that while out on bond for the first arrest, Briscoe was the target of a heroin investigation

by police at his new residence. Police, utilizing a confidential informant, made two

controlled buys from his residence in October and November of 2014.                   Police
1
    Aff. of Def. Counsel.


                                              1
subsequently executed a search warrant on November 19, 2014, whereby Briscoe was

located in the residence and arrested. Inside the residence, in a bedroom determined to be

Briscoe’s, police located over 3,900 bags of heroin and a loaded .32 caliber firearm. Per

the arrest warrant, Briscoe confessed to possessing both the heroin and the firearm,

telling police that the females also inside the apartment “had nothing to do with it.” 2

          As if Defense Counsel did not have a tough enough row to hoe already, Briscoe

was subject to sentencing as a Habitual Offender under 11 Del. C. § 4214(a) and (b) due

to his prior convictions. Briscoe had previously been convicted of Trafficking in

Controlled Substances (1991), Possession with Intent to Deliver a Narcotic (2010),

Delivery of a Schedule II Narcotic (1994), Possession or Distribution of a Controlled

Substance within 300 feet of a Park (1999), and Maintaining a Dwelling or Vehicle for
                                           3
Keeping a Controlled Substance (1991).         Simply put, if Briscoe gambled by going to

trial on either case and lost, he faced the prospect of a mandatory life sentence if

convicted of any of the violent felonies enumerated under § 4214(b) that he was charged

with.

          In light of this situation, Defense Counsel quickly struck a deal with the State

allowing Briscoe to plead guilty to one charge from each case, a ten year Level V

recommendation, and most importantly, the State would not seek to declare Briscoe a

Habitual Offender under § 4214(a) or (b). Briscoe entered his guilty plea and was

sentenced to the recommended ten years at Level V, followed by probation, on December

4, 2014—the day he was scheduled to start trial on case ID # 1401016042.




2
    Id.
3
    Immediate Sentencing Form.


                                               2
                             DEFENDANT’S RULE 61 CLAIM

        Briscoe timely filed his first pro se motion for postconviction relief with this

Court on April 8, 2015. 4 Briscoe’s single claim for postconviction relief, in its entirety,

is:

        The defendant did not enter an intelligent, knowing and voluntary plea as
        the Sas [sic] a result of ineffective assistance of counsel for failing to file
        [sic] suppression motion. 5

                                     LEGAL STANDARD

         To prevail on an ineffective assistance of counsel claim, a defendant must meet

the two-pronged Strickland test by showing that: (1) counsel performed at a level “below

an objective standard of reasonableness” and that, (2) the deficient performance

prejudiced the defense. 6 The first prong requires the defendant to show by a

preponderance of the evidence that defense counsel was not reasonably competent, while

the second prong requires the defendant to show that there is a reasonable probability

that, but for defense counsel’s unprofessional errors, the outcome of the proceedings

would have been different. 7

        When a court examines a claim of ineffective assistance of counsel, it may

address either prong first; where one prong is not met, the claim may be rejected without

contemplating the other prong. 8

        Mere allegations of ineffectiveness will not suffice; instead, a defendant must

make and substantiate concrete allegations of actual prejudice. 9 An error by defense



4
  Briscoe did not file an appeal with the Delaware Supreme Court.
5
  Briscoe’s Motion was supported by an extensive, typed, 22 page Memorandum of Law.
6
  Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
7
  Id.
8
  Id. at 697.
9
  Younger v. State, 580 A.2d 552, 556 (Del. 1990).


                                                 3
counsel, even if professionally unreasonable, does not warrant setting aside the judgment

of conviction if the error had no effect on the judgment. 10

         Although not insurmountable, the Strickland standard is highly demanding and

leads to a strong presumption that defense counsel’s conduct fell within a wide range of

reasonable professional assistance. 11           Moreover, there is a strong presumption that

defense counsel’s conduct constituted sound trial strategy. 12

         In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from the defense counsel’s perspective at the

time decisions were being made. 13 It is all too easy for a court, examining counsel’s

defense after it has proved unsuccessful, to conclude that a particular act or omission of

counsel was unreasonable. 14 A fair assessment of attorney performance requires that

every effort be made to eliminate the distorting efforts of hindsight. Second guessing or

“Monday morning quarterbacking” should be avoided. 15

         The United States Supreme Court recognized that there are countless ways to

provide effective assistance in any given case. The United States Supreme Court

cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing

court, trial counsel observed the relevant proceedings, knew of materials outside the

record, and interacted with his client, opposing counsel, and the judge. 16

         Even the best criminal defense attorneys would not defend a particular client in

the same way. Consequently, defense counsel must be given wide latitude in making

10
   Strickland, 466 U.S.at 691.
11
   Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. Oct. 31,
2008).
12
   Strickland at 466 U.S. 688-689.
13
   Id.
14
   Id
15
   Id.
16
   Harrington v. Richter, 562 U.S. 86, 105-6 (2011).


                                                     4
tactical decisions. 17 Counsel’s representation must be judged by the most deferential of

standards. There is a strong presumption that defense counsel’s conduct constituted

sound trial strategy. 18

                                              ANALYSIS

         At the outset, the Court notes that while Briscoe’s motion is couched as one of

ineffective assistance of counsel, the goal of his motion is really to withdraw his guilty

plea. Nevertheless, Brisoce’s claim is governed by Superior Court Criminal Rule 61.

Before examining the merits of Briscoe’s claim, the Court will first examine it in light of

the procedural requirements imposed under Rule 61(i). Finally, a reviewing court need

not consider the merits of a Rule 61 motion if the motion is procedurally barred. 19

         The thrust of Briscoe’s claim is that had Defense Counsel done more investigation

and moved to suppress evidence from the November 19, 2014 arrest, the outcome of his

cases would have been different—somehow.

         Conversely, Defense Counsel’s Affidavit paints a much different picture. It is

clear that Defense Counsel is an experienced criminal defense attorney who was fully

prepared to litigate, and if necessary, go to trial on the first arrest. However, while

Defense Counsel and Briscoe may have reasonably expected a “win” at trial on the first

case, the proverbial rug was pulled out from under them with Briscoe’s second arrest—

on new and even more serious charges—on the eve of trial.                      As Defense Counsel

succinctly put it, the first case was based on “constructive possession” and Briscoe had a

“viable trial defense,” the second case put Briscoe in “checkmate.” 20


17
   Id.
18
   Strickland, 466 U.S. at 689; Harrington v. Richter, 131 S.Ct. 770 (2011).
19
   Younger, 580 A.2d at 554.
20
   Aff. of Def. Counsel.


                                                     5
           Defense Counsel, to his credit, moved quickly, contacting the State in an attempt

to resolve both cases. Defense Counsel stated that at the time of the plea on December 4,

2014, he had reviewed the warrant for the November 19, 2014 arrest, and was confident

that he was able to “provide intelligent counsel to Mr. Briscoe.” Additionally, Defense

Counsel stated that he was “never asked [by Briscoe] to pull cell phone records, video

surveillance or raise any possible Franks issues related to the search warrant.”

           Perhaps most significant to the predicament Briscoe found himself in after the

second arrest, the State indicated that the plea offer would be “withdrawn in the event

Mr. Briscoe went to trial regarding the November 2013 set of charges.” 21 While Briscoe

may have had more than a fighting chance in front of a jury on the first case, the State

had just been dealt a new set of card and knew how to play them. Clearly, the State

intended to leverage the more favorable facts (from its point of view) of the second arrest

to avoid a trial and resolve both cases.

           To this end, Defense Counsel stated that he “communicated in person [with] Mr.

Briscoe (now detained) who clearly understood and shared counsel’s view, that [he]

would have to prevail at trial on both cases in order to obtain a better result.”

           Strickland requires relief only if, but for counsel’s unprofessional errors, claimant

can show a reasonability probability that the outcome would have been different.

Briscoe’s argument, supported by his 22 page Memorandum of Law, ignores the fact that

his argument is speculative—at best. As the State aptly noted in its Response, Briscoe

had “confessed to conduct which amounted to at least 40 years of incarceration.”

           In the end, the Court is left convinced that not only was Defense Counsel

competent in his representation, but he saved Briscoe from a life sentence, or at least a
21
     Aff. of Def. Counsel.


                                                6
much longer jail sentence, by quickly assessing the strength of the second case and

moving to resolve both at the same time; as previously noted, the State’s very generous

plea offer was predicated on Briscoe not going to trial on his first arrest.

         By pleading guilty Briscoe waived any legal challenges he could have raised as to

the second arrest. Because Briscoe could have raised the various legal issues he now

cites, but elected not to, his claims are procedurally barred under Rule 61(i)(3). 22

                                                    Guilty Plea

         As the crux of Briscoe’s argument is that his guilty plea was not knowingly and

intelligently and voluntarily made, an examination of the colloquy and plea paperwork is

necessary.

         An examination of the guilty plea and sentencing transcript reveals no anomalies

in the colloquy or entry of the plea.               The standard Plea Agreement and Truth-In-

Sentencing Guilty Plea Forms were completed accurately.                         On the forms, Briscoe

checked the box to indicated that he understood his rights and agreed to waive them in

exchange for accepting the State’s plea offer. During the colloquy, Defense Counsel

stated that Briscoe understood the terms of the offer and that “[h]e waives all rights he

would otherwise enjoy.” 23           Additionally, the Court asked Briscoe if he heard what

Defense Counsel said and if it was correct, to which he replied “yes.” 24 Finally, Briscoe

made it a point to explain to the Court that as a shooting victim himself, he “made a bad

decision” and that he never intended any harm with the firearm he possessed.



22
   Rule 61(i)(3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading
to the judgment of conviction, as required by the rules of the court, is thereafter barred, unless the movant
shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant’s
rights.
23
   Sentencing Transcript at 5.
24
   Id. at 7.


                                                      7
         “A defendant's statements to the Superior Court during the guilty plea colloquy

are presumed to be truthful.” 25 A review of the record reveals that Briscoe knowingly and

intelligently waived his right to indictment in the second arrest, trial and appeal as to both

cases and that he understood the penalties he faced by pleading guilty. Briscoe did not

ask a single question of the Court nor object to anything said by Defense Counsel or the

State. There is simply nothing in the record to rebut the presumption that Briscoe

understood what he was doing when he pled guilty. 26

         For the foregoing reasons, Briscoe’s Motion should be DENIED.

         IT IS SO RECOMMENDED.



                                                                  /s/ Bradley V. Manning
                                                                  BRADLEY V. MANNING,
                                                                  Commissioner


oc:      Prothonotary
cc:      Defendant




25
  Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
26
  It is also worth noting that this was certainly not the first time Briscoe had pled guilty, and therefore, had
prior experience with the guilty plea process.


                                                       8
