IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,

V. Cr.IDN0.0701010111

RYAN RESOP,

Defendant.

V\./\./\./\./\./\./\/\./\/

Submitted: November 3, 2016
Decided: November 17, 2016

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

John W. Downs, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Ryan Resop, J ames T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

MAYER, Commissioner

This l7th day of November, 2016, upon consideration of Defendant’s Motion
for Postconviction Relief and Defendant’s l\/Iotion for Appointment of Counsel, it
appears to the Court that:

BACKGROUND, FACTS AND PROCEDURAL HISTORY

l. On l\/larch 19, 2007, Defendant, Ryan Resop, was indicted on twenty-six
(26) felony counts including eight counts of Robbery First Degree, eight counts of
Conspiracy Second Degree, two counts of Attempted Robbery First Degree, six
counts of Wearing a Disguise During the Commission of a Felony, and two counts
of Assault Second Degree. The indictment stems from several incidences that
occurred during the period of December 2006 through January 2007 whereby
Defendant and a co-defendant, Jarrell Crawley (“Crawley”), engaged in a series of
acts that involved a string of gas station and convenience store robberies. One of
the Assault charges, relevant to this matter, involved an allegation that while
Defendant and Crawley tried to rob the Chelsea BP gas station and convenience
store, Harminder Minhas (“Minhas”), the store clerk, was shot in the hand with a
BB gun.

2. Defendant was arrested when the police received a tip and proceeded to
follow Defendant and Crawley by car which led to a high speed chase. The pursuit
was recorded by the police camera and the police recovered a BB gun, mace and

mask that were thrown from the vehicle. When the police caught up with

Defendant, items from the recent robbery were found in the car. At the time,
Defendant was on probation and wearing a Global Positioning Satellite (“GPS”)
ankle bracelet. The State’s evidence included testimony and a “map” that tracked
Defendant’s travels by GPS and confirmed his presence at the various robberies
The State also had eye witness testimony and video surveillance implicating
Defendant.

3. Prior to the trial beginning, Defendant agreed to plead guilty to three counts
of Robbery First Degree, two counts of Assault Second Degree (including a guilty
plea to the assault of Harminder Minhas) and one count of Conspiracy Second
Degree. The State agreed to recommend twelve years at Level 5. Defendant did
not agree to testify against Crawley.

4. On November 9, 2007, Defendant was sentenced to a total of twelve years at
Level 5 incarceration with nine years as the mandatory minimum.l

5. Since he was sentenced, Defendant has filed no less than six (6) motions for
modification, reduction or correction of his sentence.2 Each has been denied for
the reasons set forth in the relevant opinions and orders. Defendant also filed a

Petition for Writ of l\/Iandamus with the Delaware Supreme Court which was

 

l Resop’s co-defendant, Crawley, was sentenced to more than thirty years with respect to the
charges at issue here.

2 See, DI #s 17, 18 (December 10, 2007), #s 33, 35 (August 8, 2011), #s 38, 45 (April 11, 2013),
#s 46, 47, 49 (September 3, 2015), #s 50, 54, 55 (February 10, 2016), #56 (March 3, 2016).

dismissed by Order dated September 1, 2015.3 Through the various motions and
petition, Defendant raised allegations that his Assault Second conviction should be
reversed, that he was improperly labeled a “snitch,” and claims of ineffective
assistance of counsel, both as to his own counsel as well as with respect to the
actions and statements of his co-defendant’s counsel.

6. In addition, on October 6, 2008, Defendant, pro se, filed his first Motion for
Postconviction Relief. On October 7, 2009, after a thorough review of the record,
and consideration of the Affidavit of Counsel and the State’s response, the
Commissioner issued a Report and Recommendations that Defendant’s Motion for
Postconviction Relief should be denied.4 The Report found that Defendant
understood that he was waiving his right to raise any constitutional or evidentiary
challenges and that he knowingly, voluntarily and intelligently entered a guilty
plea. The Commissioner further held that the evidence against Defendant was
strong and trial counsel’s recommendation to accept the plea did not amount to
ineffective assistance of counsel. No objections to the report were filed and the

Motion for Postconviction Relief was denied.5

 

3 In the Matter of the Petition of Ryan Matthew Resopfor a Writ ofMana'amus, 2015 WL
5168155 (Del., Sept. 1, 2015).

4Dl#zl.

5151#32.

7. On February 10, 2016, the Court received Defendant’s second Motion for
Postconviction Relief.6 In summary, Defendant makes the following arguments
pursuant to Superior Court Criminal Rule 6l(i)(5):

(i) Defendant’s right against self-incrimination under the Fifth
Amendment was violated because during Crawley’s post-conviction relief process,
Crawley’s counsel may have misrepresented to the Court that Defendant would
testify against Crawley. Defendant argues that the references to him testifying
against Crawley are false and his rights were violated when he was labeled a “state
witness” as a result of the filings;

(ii) The State did not fulfill its promise as made through the Plea
Agreement by allowing the “false” statements to be submitted about Defendant’s
willingness to testify against Crawley; and

(iii) The testimony of Minhas at Crawley’s trial is newly found evidence
that supports vacating the judgment against Defendant because the State could not
prove l\/Iinhas was injured to support an Assault Second Degree charge.

8. Defendant’s former counsel, Michael Heyden, submitted an Affidavit7 and

the State filed a Response8 to the Motion for Postconviction Relief.

 

61)1#5`1.
7DI#59.

81)1#61.

9. Defendant filed a reply brief and clarified and/or supplemented his legal
arguments It appears that Defendant is now arguing that his trial counsel was
ineffective for failing to properly investigate the proposed testimony of Harminder
l\/Iinhas and that he would not have pled guilty to the Assault Second charge if he
had known the witness was expected to testify that he was not injured. In light of
the clarification of the argument in the Reply Brief, the Court requested an
additional submission from trial counsel and a Supplementary Affidavit was filed
on October 31, 2016.9

10. Defendant also filed a Motion for Appointment of Counsel in which he re-
iterates his arguments from his Motion for Postconviction Relief and claims there
is a delay in obtaining case law while incarcerated.m

DEFENDANT’S RULE 61 MOTION

ll. 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 6l(i).ll Having reviewed the Motion, it is evident that several procedural

bars are applicable to Defendant’s Motion.

 

9 DI # 68. Defendant also filed an additional “Reply in Support of Motion for Postconviction
Relief” (DI # 67). However, the Court’s September 22, 2016 letter did not provide Defendant
with the opportunity for additional briefing.

‘0 DI # 64.

“ rounger v. sm¢e, 580 A.zd 552, 554 (Del. 1990).
6

12. First, Defendant’s motion is procedurally barred as untimely. Superior
Court Criminal Rule 6l(i)(1) imposes the condition that a motion for
postconviction relief may not be filed more than one year after the judgment of
conviction is final. Defendant pled guilty on September 17, 2007, and was
sentenced on November 9, 2007. Defendant did not file a direct appeal and
therefore his judgment of conviction became final on December 9, 2007.12 The
present motion was filed more than eight (8) years after Defendant’s judgment
became final. Therefore, the motion was filed outside the applicable time limit and
Defendant’s claims, at this late date, are time-barred.

13. Defendant’s Motion is also barred by Superior Court Criminal Rule 6l(i)(2).
All grounds for relief available to a defendant shall be deemed to have been set
forth in the movant’s first motion for relief under this rule13 and no second or
subsequent motion is permitted unless the motion satisfies the pleading

requirements of subparagraphs 2(i) or 2(ii) of subdivision (d) of Rule 6l.14

 

12 Pursuant to Superior Court Criminal Rule 6l(m)(l), a judgment of conviction is final for the
purpose of this rule within 30 days after the Superior Court imposes sentence if the defendant has
not filed a direct appeal.

‘3 super. Ct. crim R. 61(i)(2)(ii) and 61(b)(2).

14 Likewise, the procedural bars do not apply to a claim that the court lacked jurisdiction or a
claim that satisfies the pleading requirements of subparagraphs 2(i) or 2(ii) of subdivision (d) of
Rule 61. Super. Ct. Crim. R. 61(i)(5). Defendant does not assert that the Court lacked
jurisdiction and therefore that exception does not apply.

7

14. Defendant’s second motion pursuant to Rule 61 has not met the pleading
requirements of subdivision (d)(2)(i) or (ii). Defendant was not convicted after a
trial and has not presented any new evidence creating a strong inference that he is
actually innocent of the acts underlying the charges of which he was convicted
The Court in this matter conducted a thorough plea colloquy into Defendant’s
understanding of the plea agreement and the rights he was surrendering and that by
pleading guilty he was waiving certain constitutional rights including his right (a)
to be presumed innocent and for the State to prove each and every element of each
and every charge that was brought against him; (b) to a trial by jury; (c) to hear and
question the witnesses who would be called to testify against him and to cross-
examine each of these witnesses; (d) to present evidence in his own defense; and
(e) to testify.15 Defendant pled guilty to the charges which included an admission
that he committed the offense of Assault Second by causing physical injury to the
victim.16 The fact that Minhas’s testimony during Crawley’s trial led to a different
result, does not afford Defendant relief here. The court may accept a guilty plea,
with a waiver of various constitutional rights, even when the defendant does not

have complete knowledge of the relevant circumstancesl7 Defendant is bound by

 

15 September 17, 2007 Plea Colloquy Transcript at pgs 7-10 (hereinafter “Plea Tr. at _”).
'° 1d.arpgs.16-17,19.

‘7 Brown v. Smre, 108 A.3d 1201, 1205 (Del. 2015), citing wired S¢a¢es v. Ruiz, 536 U.s. 622,
623 (2002).

his answers in court and waived his right to cross-examine witnesses.18 Defendant
cannot now challenge what the witness’s potential testimony may have been if his
trial had gone forward.19 As such, Defendant has failed to meet the pleading
requirements of Rule 61(d)(2)(i)-(ii) and has not presented any argument to justify
relief from the procedural barS.ZO

l5. In addition, Defendant’s motion is barred by Superior Court Criminal Rule
6l(i)(4) which prohibits a defendant from raising claims that have already been
adjudicated in the proceedings leading to the judgment of conviction, in an appeal,
in a postconviction proceeding or in a federal habeas corpus proceeding
Defendant not only raised these almost exact issues by way of his motions for
modification, reduction or correction of his sentence,21 but Defendant’s first

motion for postconviction relief also addressed the issues of the validity of the plea

 

'8 state v. Knshner, 2016 WL 354999 (Del. snper., Jan. 27, 2016).

'9 anner v. smie, 543A.2d 309, 313 (Del. 1988) (citing the rationale that guilty pleas Will be
upheld where the defendant entered the plea under an agreement from which he received a
substantial benefit, even though a jury conviction on the same charge might be reversed.).

20 Defendant has not asserted that a new rule of constitutional law affects his conviction and
therefore this exception does not apply.

21 Defendant raised the same or similar arguments presented in this motion by way of his fourth
motion for sentence reduction/modification that was filed on September 3, 2015, which was
supplemented several times and addressed by the January 13, 2016 decision of this Court. See
DI # 46-49. Essentially, Defendant argued (a) for a reduction of his sentence on the basis that he
should not have been labeled a “snitch” in court documents and (b) the testimony of Harminder
Minhas in the Crawley case justified a withdrawal of the Assault Second charge.

and effectiveness of counsel. Defendant is now precluded from raising these
claims again.

16. Even if considered on the merits, Defendant’s arguments are not supported
by the record. Defendant never testified in his own defense or against Crawley,
and therefore there is no basis for his claim that his Fifth Amendment rights were
violated. As to his second argument, Defendant acknowledged at the Plea Hearing
that the only agreement with the State was that it would not recommend any more
than 12 years of incarceration22 Defendant also stated there were no other
promises or agreements and this was the entire agreement reached with the State of

2
Delaware. 3

Defendant’s motion does not argue that the State recommended
anything other than the agreed upon sentencing deal. Indeed, the State made a
recommendation of 12 years at Level 5 and the Court imposed the recommended
sentence.24 Defendant has thus failed to point to any agreement with the State that
was violated and thus his second argument lacks merit.

17. Finally, Defendant has failed to establish that trial counsel was ineffective.

When reviewing a claim of ineffective assistance of counsel, the Court must

analyze counsel’s conduct based upon all of the facts of the case and avoid peering

 

22 Plea Tr. at pgs 4-10.
23 Plea Tr. at pg. 7.

24 November 9, 2007 Sentencing Proceeding Transcript, at pgs 3-4.

10

through the lens of hindsight.25 Although the right to counsel “includes the right to

”’26 the general duty of defense

informed advice after ‘appropriate investigation,
counsel to investigate does not require counsel to pursue every avenue to uncover
potentially mitigating or exculpatory evidence.27 Defendant must show that any
alleged errors were so serious that his counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment28 “A defense attorney may not
be faulted for a reasonable miscalculation or lack of foresight or for failing to
prepare for what appear to be remote possibilities.”29 Even assuming trial counsel
erred by not fully investigating Minhas’s potential testimony, in order for
Defendant’s motion to Succeed, he must prove that (i) counsel’s representation fell
below an objective standard of reasonableness; and (ii) the error was so prejudicial

that Defendant would not have pled guilty and would have insisted on going to

trial.30 “Where the alleged error of counsel is a failure to investigate, a

 

25 State v. Wrr'ghr, 653 A.2d 288, 295 (Del. super., 1994).

26 Macnarrald v. srdre, 778 A.2d 1064, 1075 (Del. 2001), citing ABA, standards far Crirninal
Justice, Standard 14-3.2.

27 Alston v. State, 2015 WL 5297709, at *2-3 (Del., Sept. 4, 2015).
28 State v. Finn, 2012 WL 1980566, at *4 (Del. Super., May 23, 2012).

29 Id (holding defense counsel provided active and capable advocacy when evidence against
Defendant was overwhelming) (citing Harrz`ngton v. Richter, 131 S.Ct. 770, 787-792 (2011)).

30 State r. Kdrhner, 2016 wL 354999, at *l (Del. snper., Jan. 27, 2016);Srrr'ck1drtd v.
Wdrhirrgtdrr, 466 u.s. 668, 687-88, 694 (1984).

11

determination of ‘prejudice’ to the defendant by causing him to plead guilty
depends upon the likelihood that the additional effort by counsel would have led to

,,31 Likewise, if the alleged

a change in counsel’s recommendation as to that plea.
error is “curable” because the defendant’s conduct properly brought him within the
jurisdiction of the court to answer the State’s allegation of criminal activity, and
the parties reach a plea bargain, the court has the fundamental authority to accept
the result of the defendant’s bargain with the State.32

18. If Defendant had gone to trial, the convictions and sentencing could have
been significantly more severe than the plea agreement to six charges and twelve
years at Level 5. Defendant ignores the fact that by accepting the State’s plea
offer, he avoided a trial that involved (i) 26 indicted felony charges; (ii) a possible
mandatory penalty of 30 years at Level 5, and a possible sentence of up to 93 years
at Level 5; and (iii) strong evidence that included the GPS tracking, police pursuit
and physical evidence, eye witness testimony and video surveillance Even
without the Assault Second charge challenged here, Defendant was facing a

possible 85 years for the remaining charges. Defendant’s sentence is dwarfed by

the possible sentence that could have been imposed.

 

3‘ Albtrry v. srdra, 551 A.2d 53, 59 (Del. 1998) (citing Hall v. dekhdrr, 474 U.s. 52, 58-59
(1985)).

32 derter v. srdte, 543 A.2d 309, 311-312(1)61. 1988).

12

19. In light of the facts and circumstances in this case, to the extent there was an
error on the part of trial counsel, such error did not affect the outcome of this
matter and certainly did not prejudice Defendant. The evidence against Defendant
was strong, Defendant received a substantial benefit from the plea agreement and
the record reflects that Defendant entered into it knowingly, voluntarily and
intelligently. It was reasonable for counsel to recommend that Defendant plead
guilty to six charges rather than risk being tried on twenty-six charges with
significant mandatory minimum time.33 lt is evident that trial counsel negotiated
the best offer he could for Defendant. As such, the Motion does not meet the
requirements for post-conviction relief.

DEFENDANT’S MOTION FOR APPOINTMENT OF COUNSEL

20. Defendant did not cite any basis for the motion for appointment of counsel.
Superior Court Criminal Rule 61(e)(4) provides that the judge may appoint counsel
for an indigent movant’s second or subsequent postconviction motion only if the
judge determines that the motion satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d) of Rule 61. As set forth above,
Defendant’s motion does not meet the pleading requirements established by this
subsection of Rule 61 and therefore Defendant has provided no basis for the

appointment of counsel.

 

33 srrrza v. Dnnahaa, 2008 WL 5206779, at *3 (Del. supar., Dec. 4, 2008).
13

For all the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be Denied and the Motion for Appointment of Counsel should be Denied.

IT IS SO RECOMMENDED.

 
     

Colnmls_s'ionel' at ral'lne L. Mayer

oc: Prothonotary

cc: John Downs, Esquire
Ryan Resop

14

