IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1305019629

DARIUS O. HARDEN,

Defendant.

Dated: February 21, 2017

COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

Andrea L. Johnson, Esquire, Deputy Attorney G'eneral, Delawarc Department of
Justicc, 820 N. French St. 7th Floor, Criminul Division, Wilmington, Delawzlre,

19801, Attorney for the State.

Christopher S. Koyste, Esquire, 709 Brandywine Blvd., Wilmington, DE 19809,
Attorney for the Defendant.

MANNING, Commissioner

This 2lSt day of January, 2017, upon consideration of defendant Darius
Harden’s amended motion for postconviction relief (hereinafter “Motion”), I find
and recommend the following:

Facts and Procedural Background

On July 8, 2013, Harden Was indicted by a Grand Jury for the crimes of
Home Invasion, Assault in the Second Degree, Terroristic Threatening, Theft,
Offensive Touching and Endangering the Welfare of a Child. On March 10, 2014,
Harden pleaded guilty to one count of Assault in the Second Degree.1 A pre-
sentence investigation Was order and sentencing occurred on May 30, 2014. As
contemplated by the express terms of the guilty plea agreement signed by Harden,
the State filed a motion to declare him a Habitual Offender pursuant to ll Del. C.
§4214(a). Harden’s plea agreement Was a global one in that it encompassed two
separate cases and a pending violation of probation. As part of the plea agreement,
the State agreed to cap its Level V recommendation at 15 years. At sentencing,
Harden Was declared a Habitual Offender and sentenced to 18 years at Level V
With no probation to folloW.

Harden did not appeal his conviction to the DelaWare Supreme Court.

HoWever, Harden did file a motion for reduction of sentence pursuant to Superior

 

l Harden’s case originally proceeded to a jury trial, however, a mistrial Was declared on February
l 8, 2014.

Court Crim. Rule 35(a). This motion was denied by the sentencing judge on
December l, 2014.2 Harden then timely filed his first pro se motion for
postconviction relief in this case on May 5, 2015.

Pursuant to Superior Ct. Crim. Rule 62, Harden’s Motion was referred to the
undersigned Commissioner on June 15, 2015. Based upon my initial review of
Harden’s Motion l did not see the need for an evidentiary hearing. Following a
review of Harden’s pro se motion I ordered a transcript of the May 30, 2014
sentencing hearing3 lt should be noted that Harden was represented by two
different lawyers, both of whom filed an affidavit in response to Harden’s pro se
claims. Harden was represented by the Honorable Ferris F. Wharton up to and
including the entry of his guilty plea. Upon Judge Wharton’s appointment to the
Superior Court, Harden’s case was transferred to Assistant Public Defender Joseph
M. Leager, Jr., who represented him at sentencing

On June 3, 2015, the day before the most recent version of Rule 61 took
effect, Harden filed a motion for appointment of counsel. On July l3, 2015, the
Honorable Vivian L. Medinilla, who was also the sentencing judge, granted

Harden’s motion for appointment of counsel.4 Due to a shortage of available

 

2 D.I. #40.

3 Due to an administrative oversight, I was not made aware that the necessary transcript had been
completed until December 30, 2015.

4 D.I. #46.

lawyers, the Office of Conflicts Counsel was not able to appoint counsel to
represent Harden for his postconviction motion until March 24, 2016.5 On April
26, 2016, I issued a new scheduling order that required Mr. Leager and the State to
file responses to the amended Motion. On July 18, 2016, with the assistance of
counsel, Harden filed an amended Motion for postconviction relief and raised the
following two claims:

Ground one: Sentencing counsel was ineffective for failing to meet

with Mr. Harden prior to the sentencing hearing to develop a

sentencing strategy and to prepare Mr. Harden on providing a

mitigating allocution, resulting in prejudice to Mr. Harden [].

Ground two: If sentencing counsel’s statements at the sentencing

hearing were not made with a strategic purpose, then sentencing

counsel was ineffective, resulting in prejudice to Mr. Harden [].

On August l7, 2017, Mr. Leager filed a supplemental affidavit in response
to Harden’s amended Motion. On October 14, 2016, the State filed its

Memorandum In Opposition to Harden’s Motion. On November l6, 2016, Harden

filed his Reply to the State’s Response.6

Legal Standard

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

meet the two-pronged Stricklana' test by showing that: (l) counsel performed at a

 

5 D.l. #60.

6 D.l. #72.

level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.7 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 different8

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.9 Mere allegations of ineffectiveness will
not suffice; instead, a defendant must make and substantiate concrete allegations of
actual prejudice.10 An error by defense counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of conviction if the error
had no effect on the judgmentll

In considering post-trial attacks on counsel, Stricklana’ cautions that trial

counsel’s performance should be reviewed from his or her perspective at the time

 

7 strickland v. Washmgmn, 466 U.s. 668, 687-88, 694 (1984).
8 ld.

9 1a at 697.

10 Younger v. srare, 580 A.zd 552, 556 (Dei. 1990).

11 Srrickland, 466 U.s.at 691.

decisions were being made.12 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. 13

Analysis

The procedural requirements of Rule 61 must be addressed before
considering the merits of any argument.]4 Harden’s Motion was timely filed, is not
repetitive, and neither issue was raised previously. Therefore, Harden’s Motion is
not procedurally barred under Rule 6l.

Harden’s claims are somewhat unique in that he is not challenging his
conviction or guilty plea, as is the norm. Rather, Harden’s arguments can be
combined and summarized as follows: had my lawyer done a better job at
sentencing l would have received a shorter sentence. Thus, the question before
the Court is: was there something Harden’s lawyer could have done or said, either
during sentencing or in preparation for, that would have probably resulted in a
shorter jail sentence for Harden?

In his Supplemental Affidavit, Defense Counsel states that he was assigned
Harden’s case 2-3 days prior to sentencing and that he met with Harden prior to

sentencing in “lock-up” for approximately 15-20 minutes to discuss the case.

 

lzld
l31d.

14 see Younger, 580 A.2d at 554.

Defense Counsel also stated that it was his “intent to adopt prior counsel’s position
and argue for the sentencing cap based on all relevant sentencing information in
the PSI. .. .” Harden disputes this and claims that Defense Counsel only met him
for the first time when he entered the courtroom for sentencing.15 Due to this
discrepancy, Harden has requested an evidentiary hearing. The record before me is
that Defense Counsel has filed a sworn affidavit with the Court stating that he met
with Harden in “lock-up” prior to sentencing to discuss the case. Although Harden
now disputes this, l have no reason to believe that a hearing would shed any
additional light on the question, nor cause me to doubt Defense Counsel’s sworn
affidavit.
A review of the sentencing transcript reveals Defense Counsel’s comments

to the Court on Harden’s behalf consisted of the following:

Good morning, Your Honor. As tempted as one might be, there

is no real positive spin [that] can be put on domestic violence

cases. While there is always a back and forth component, and a

component of lack of maturity, discipline on usually both

people’s part, this case is clear that at the end of the day Mr.

Harden was the one [who] has made most immature,

undisciplined choice in this conduct that occurred. Irrespective

of whether it started as a verbal argument, whether the

complaining witness physically assaulted him, no matter how

you look at it, the scope of his response exceeded any

defensible self-defense, what have you.

That is the problem with Mr. Harden had in this case.
Thankfully, with clearly a history of bad decision making,

 

15 D.l. #65 at A72.

wrong choices, perhaps finally make a correct choice in
pleading, resolving the case a somewhat tortured history, from
what 1 understand, with trial and immunity issues. These things
expend a lot of resources, but by the same token they are not
uncommon in domestic violence cases. So Mr. Harden pled.
There is really no defensible explanation for the response no
matter what was going on that day, no matter what prompted
this. l think Mr. Harden understands that you simply cannot hit
someone hard enough to knock their teeth out and cause injury.
That is what happened in this case.

As a result of his past, in combination with the charge itself, he
is a habitual offender. So it is no longer a discretionary
argument in sentencing range of zero to eight, he is eight years
minimum right out of the gate, which is a significant
punishment The State has indicated they will stand by their
ceiling of 15 years, which was negotiated part of the case
resolution. From my part, l can only bring a few points to the
Court’s attention, perhaps something slightly less than that
would be appropriate, because at the end of the day, even Mr.
Harden understands he has to get a significant punishment off
of what happened here.

>l<>l<>|<

I think it is a one of few positive that he cooperated with the
State, as he should. It is a good choice. Good choices don’t
outweigh bad choices but it is a start. Mental health treatment
seems required on what 1 see in front of me. l think the Court
should order that in some fashion. Really, all I can do is
suggest the Court that 12 years, give or take, as opposed to 15 is
a good starting point.'6

Defense Counsel made additional comments during sentencing regarding

Harden’s cooperation agreement with the State on unrelated matters and his status

 

11 sem. T. at 8-12.

as an Habitual Offender. However, the above quote represents the substance of
the comments made on Harden’s behalf.

The law requires that there is a “reasonable probability” that the outcome of
the case would have been different but for defense counsel’s deficient
performance In this case, would the sentencing judge have imposed less jail time
had defense counsel done a better job of preparing Harden for his allocution and in
the presentation of mitigating evidence? In my view, the answer is most likely no.
However, l must conclude that although there is a possibility Harden might have
received less jail time, there is not a reasonable probability of it.

To a certain extent, Harden’s motion is conclusory in that it fails to present
any new mitigating evidence that would have probably swayed the sentencing
judge to impose a shorter sentence. The use of the word “probably” is important,
because under Stricklana', the “probability” of a different outcome does not mean a
mere “possibility”_it is a higher standard. In Neal v. State, the Delaware
Supreme Court expounded on the Stricklana’ burden of proof analysis under the
prejudice prong, it heldt

A reasonable probability of a different result requires a
probability sufficient to undermine confidence in the outcome.
Although this standard is not mathematically precise and does
not necessarily require a showing of more likely than not,

Stricklana' requires more than a showing merely that the
conduct could have or might have or it is possible that it would

have led to a different result. The likelihood of a different result
must be substantial, not just conceivable17

ln the context of Harden’s case, the judge cited a list of serious aggravating
factors to justify her decision to impose Level V time beyond what the State was
asking for. In fact, the judge could have legally imposed a sentence of up to life in
prison, but did not. What is apparent, however, is that even the most prepared and
eloquent of defense counsel could not have changed the basic facts upon which the
court imposed sentence. As the sentencing judge noted in the Order denying
Harden’s Rule 35(a) motion for reduction of sentence:

The Court took into consideration that Defendant waited for his
victim/girlfriend at the front of her home and barged in,
wherein he proceeded to strike her in the face, knocking her
down and then kicked her in the head, stomach and ribs. Her
injuries included nasal fractures and knocked out teeth. He did
so in the presence of a five year old who ran outside screaming
and hid in a car. He threatened to kill the victim if she
contacted the police. Subsequently, Defendant attempted to
manipulate his victim’s testimony prior to trial. At sentencing,
the Court took into consideration aggravating factors that
included Defendant’s prior violent conduct, undue depreciation
of the offense, lack of remorse, lack of amenability, his
statutory habitual offender status and the domestic violence and
child victim/witness involved in this crime. As such, the
Court’s sentence was appropriate and well within the statutory
penalties18

 

17 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotations and citations omitted).

18 D.l. #40 at p2.

Harden’s motion does an admirable job of marshalling an argument that
Defense Counsel was deficient under Stricklana' by citing to the ABA Standards
for Criminal Justice and the Delaware Lawyers’ Rules of Professional Conduct.
However, what is evident is that Defense Counsel’s task was an uphill climb and
that his comments at sentencing were an attempt to put the best possible spin on an
otherwise horrible situation Frankly, it is hard to imagine what else Defense
Counsel could have legitimately stated to the Court to ameliorate the situation
Harden had put himself in considering his actions during the incident and prior to
trial.19 Notably, Harden’s Motion fails to identify or present anything else Defense
Counsel might have said that would have impacted the outcome_it only takes
issue with what Defense Counsel did say.

Finally, Harden claims in his Motion that he was “essentially denied the
opportunity to present an allocution bearing even a neutral impression.”20 Harden
is not arguing that he was denied an opportunity to allocute; rather, that because
Defense Counsel did not adequately prepare him for his allocution, he said things
that made his situation worse. The fact that Harden did not endear himself to the
Court with his statement and it was not at least “neutral” in tone is not the fault of

Defense Counsel. It is not Defense Counsel’s job to script an allocution for the

 

19 E.g. the numerous letters and acts of witness intimidation he engaged in prior to trial.

20 D.I. #72 at p7.

10

client; such a presentation would undoubtedly be viewed by the Court as contrived
and disingenuous, to say the least.

Nevertheless, Harden does not cite specifically what information he would
have otherwise presented, his Motion only alludes to “his psychological and
traumatic familial background” and “past success with mental health treatment.”Zl
Again, without concrete examples of the specific nature of the mitigating evidence
that Harden could have presented, I am left to speculate as to what he might have
said and can only hypothesize as to if it might have had any effect on the sentence

he received. Without any concrete evidence, Harden’s assertion is conclusory in

nature and fails to meet the Sticklana' standard.

 

21Ia’atp8.

11

Conclusion
In light of the serious nature of the offense, multiple aggravating factors, and
the Court’s inherent discretion as to the possible sentence, I cannot find that
Harden probably would have received a sentence of less than 18 years based on the
facts and arguments presented in Harden’s Motion. Therefore, even if Defense
Counsel’s performance at sentencing was deficient, a finding l am not making at
this time, Harden was not prejudiced by Defense Counsel’s conduct and his

Motion should be Denied.

IT IS SO RECOMMENDED.

Bradley V. Man¢fng, '
Commissioner

oc: Prothonotary
cc: Counsel via email.

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