IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,

Plaintiff,

Cr. ID. No. 1503012584

JERALD A. PASTRO, JR.,

Defendant.
Date Submitted: January 19, 2018
Date decided: April 17, 2018
COMMISSIONER’S REPORT AND RECOMMENDATION ON

DEFENDANT’S MOTION FOR APPOINTMENT OF COUNSEL AND
MOTION FOR POSTCONVICTION RELIEF

Sonia Augusthy, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St. 7th Floor, Wilmington, Delaware, 19801. Attorney for

the State.

Jerald A. Pastro, Jr., pro se, Defendant.

MANNING, Commissioner:

This 17th day of April 2018, upon consideration of defendant Jerald A. Pastro
Jr.’s Motion for Postconviction Relief (“Motion”), and Motion for Appointment of
Counsel, 1 find and recommend the following:

Procedural History

Mr. Pastro pled guilty to Assault Second Degree, Burglary First Degree, and
Possession of a Deadly Weapon During the Commission of a Felony on July 7, 2016.
Following a pre-sentence investigation, Mr. Pasto Was sentenced on September 16,
2016, to eight years of unsuspended Level Five time, followed by decreasing levels
of probation. Mr. Pastro did not appeal his conviction or sentence to the Delaware
Supreme Court. Mr. Pastro did, however, file a motion for sentence
reduction/modification on October 7, 2016. That motion Was denied by the
Honorable Richard R. Cooch on October 12, 2016.l Mr. Pastro subsequently filed
two additional motions for sentence modification Which Were also denied on January
19, 2017 and June 14, 2017.

On August 30, 2017, Mr. Pastro filed the instant Motion pursuant to Superior
Court Criminal Rule 61. The Motion Was subsequently referred to the undersigned
commissioner and a briefing schedule was issued on September 13, 2017. Trial

Counsel filed an Affidavit responding to particular claims made by Mr. Pastro on

 

l D.I. #42.

August 24, 2017.2 The State filed its Response on December 13, 2017. Upon review

of the various filings in this matter 1 deemed it unnecessary to hold an evidentiary

hearing based on the nature of Mr. Pastro’s allegations Finally, 1 requested and

reviewed the Presentence Report.

Mr. Pastro’s claims for postconviction relief, quoted verbatim, are as follows:

Ground One:

Ground Two:

Ground Three:

 

1neffective Counsel-failure to properly investigate
defendant’s case. Defense Counsel repeatedly told me
wrong charges and minimum mandatory time during one-
on-one conversations and at my sentencing hearing, and at
the time of me signing the guilty plea gave me incorrect
information about Level Five time.

Ineffective Counsel-failure to properly investigate
mitigating factors During sentencing hearing, and one-
on-one conversations 1 was repeatedly made to look as if 1
was someone who failed school, and was slow mentally,
yet 1 graduated high school 6 months before, proving he
had not bothered to look into my cases mitigating factors,
and further more causing prejudice towards me in
sentencing, and ruining all my family support systems
with untrue facts.

Coerced into plea. 1 was told 1 would receive 4-5 years if
1 accept the plea offer and that is 1 didn’t 1 would receive
a minimum mandatory of 5 years, and that 1 would lose
trial, when my minimum mandatory was 4 years, not 5.
Causing me to enter plea unknowingly and involuntarily.

2 Trial Counsel appears to have missed the grounds raised on the back page of
Pastro’s Motion, or the copy of the Motion he received was not double-sided. 1n
any event, a further response from Trial Counsel is not needed at this time for me

to complete this report.

Ground Four: Ineffective Counsel-failure to comply with requests of
defendant 1 asked my attorney to place a motion for
suppression in to suppress my interrogation statement due
to the video of my interrogation showing me in a
intoxicated state of mind, and he refused to do so which if
it was accepted would have changed my decision to go to
trial.

Ground Five: lneffective Counsel-failure to investigate mitigating
factors. The Defense Counsel not only refused to looking
into past placements, and psychological evaluations from
said placements (Rockford, Brentford RTC, Mount
Manor, Aquila, Crossroads and Harmonious Minds) but
having legal reason to apply for Mental Health Court,
refused, saying 1’ll have a mental health judge on
probation, when there were clear mitigating factors to be
placed in Mental Health Court.

Ground Six: 1neffective Assistance Counsel-failure to investigate
mitigating factors The Defense Counsel’s failure to
investigate into the defendant’ s mitigating factors past pre-
sentence report, knowing the abuse and stating the
knowledge of the childhood abuse, and the treatments, and
schooling, shows the failure to investigate mitigating
factors, that because of lack of research, important facts
that could have returned a different sentence were left
unsaid.

FLct_s_
According to the Affidavit of Probable Cause, the facts in this case are as
follows. On March 19, 2015, police responded to victim Warren Kirkpatrick’s
residence in reference to a stabbing that had just occurred. Upon arrival, police were

advised by Warren that Pastro and another unknown person (later identified as

Jeffery Davidson) had knocked on his door and asked to use his cellphone. While

inside his house, Jeffery asked for a bottle of water and then stabbed Warren in the
back of the neck and the top of his head with a large kitchen knife. Jeffery then
stood over Warren holding the knife placing him in fear for his life. Jeffery then
called for his brother before he and Pastro fled the residence. After his arrest, Pastro
gave a post-Miranda statement admitting that he and Jeffery had planned to rob
someone that evening and had target Warren’s house. Pastro also stated that he did
not think Jeffery would actually go thru with the plan once inside. Finally, Pastro’s
younger brother, Christian, was also interviewed by police. Christian stated that he
had heard Jeffery talking to Pastro about their plan earlier in the evening. Christian
also stated that he had observed Pasto and Jeffery running from Warren’s house
earlier that evening when he went to see what they were doing. According to the
State, Pastro was personally known to Warren prior to the assault.
Legal Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Stricklana’ 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.3 The first prong requires the defendant to show

by a preponderance of the evidence that defense counsel was not reasonably

 

3 Strz`ckland v. Washington, 466 U.S. 668, 687-88, 694 (1984).

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.4

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.5 Most germane to this case, mere allegations
of ineffectiveness will not suffice_a defendant must make and substantiate concrete
allegations of actual prejudice.6 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 judgment.7

1n considering post-trial attacks on counsel, Stricklana’ cautions that trial
counsel’s performance should be viewed from his or her perspective at the time

decisions were being made.8 A fair assessment of attorney performance requires that

 

4 Ia’.
5 Strickland, 466 U.S. at 697.

6 Younger v. State, 580 A.2d 552, 556 (Del. 1990).
7 Stricklana’, 466 U.S.at 691.

8ch

every effort be made to eliminate the distorting efforts of hindsight Second
guessing or “Monday morning quarterbacking” should be avoided. 9
Analysis

The procedural requirements of Rule 61 must be addressed before considering
the merits of any argument.10 Pastro’s Motion was timely filed and is not repetitive,
thus satisfying the procedural requirements of Rule 61. Therefore, the Motion
should be decided on its merits.

Ground One: Pastro argues, in essence, that Counsel failed to investigate his
case and gave him incorrect information concerning his charges and the penalties he
faced by pleading guilty. As to his first point, Pastro’s allegation is unsupported by
any specific examples of what Counsel failed to do or should have done that would
have reasonably changed the outcome his case. Lacking concrete examples of
deficient performance, this claim must fail. As to the second point, Pastro’s vague
allegations are belied by the record. The guilty plea paperwork was correctly
completed by Counsel and indicated the correct sentence ranges for the charges to
which Pastro pled guilty. Even if Counsel had inadvertently given Pastro incorrect

information prior to the plea being executed, any such error was cured when the

 

9ch

10 See Younger, 580 A.2d at 554.

paperwork was completed and the guilty plea entered; additionally, Pastro was
certainly free to change his mind at any time. During the guilty plea colloquy, Pastro
indicated that he was aware of what he was doing and that no one had forced him to
accept the State’s plea offer.ll

Ground Two: Pastro’s complaint that Counsel failed to properly investigate
mitigating factors is also belied by the record. Counsel submitted a number
documents outlining Pastro’s psycho-social history, including a very detailed
Forensic Mental Health Examination conducted by DPC.12 The presentence report
contains a detailed outline of Pastro’s history that Counsel and the State were both
well aware of. The fact that Pastro’s “family support systems” were “ruined” by
Counsel’s presentation at sentencing, if true, is unfortunate, but was undoubtedly an
unintended consequence of Counsel’s advocacy on Pastro’s behalf Simply put,
sometimes it is necessary for counsel to blame the family in an effort to get his or
her client a shorter jail sentence.

Ground Three: Pastro argues that he was “coerced” into pleading guilty and
that his plea was made “unknowingly and involuntarily.” Again, Pastro’s claims are

not supported with any specific examples of how he was coerced. Furthermore, his

 

ll D.l. #60, Transcript at 4-6.

12 D.i. #24.

claims are belied by the transcripts of his guilty plea colloquy where he failed to
voice any objection or express any of his concerns to the presiding judge.

Ground Four: Pastro argues that Counsel was ineffective for not moving to
suppress his statement to police because he was intoxicated at the time he made the
statement. Even assuming that Pastro was intoxicated at the time of the statement,
and that Counsel was deficient for having not moved to suppress, 1 do not find that
the Strickland standard has been met. Considering the evidence in this case_
namely that the victim knew Pastro personally_and an eyewitness observed Pastro
and Jeffery fleeing from the scene after having overheard them discussing robbing
someone, 1 do not find there is a reasonable probability of a different outcome had
Counsel moved to suppress. Even without Pastro’s statement, there was more than
sufficient evidence to support a conviction on all counts of the indictment.

Ground Five: Pastro claims that Counsel was ineffective for failing to look
into his past mental health treatment and placements and for not applying for Mental
Health Court. Yet again, Pastro’s claims are belied by the record_there was ample
and extensive evidence of Pastro’s mental health issues before the court at the time
of sentencing. 1n fact, much of the presentence report is devoted to Pastro’s family
and social history; the presentence author specifically noted that much of Pastro’s
mental health and substance abuse problems resulted from his abusive childhood.

Additionally, the decision to enter a defendant into the mental health court program

is one made by the State, not Counsel, and is usually reserved for low level and non-
violent crimes. Counsel may have correctly advised Pastro that he might have a
mental health court judge while on probation_that is certainly a possibility_but it
is nothing that effected the sentence Pastro actually received.

Ground Six: Pastro argues that Counsel failed to investigate mitigating factors
that “could have returned a different sentence [but] were left unsaid.” As has been
previously discussed, the Court was presented with a considerable amount of
information regarding Pastro that potentially mitigated the sentence he received.
What Pastro has left unsaid is exactly what Counsel could have, or should have,
presented to the Court_~his claim lacks concrete examples. Finally, the burden
under Strz`ckland is that of a reasonable likelihood of a different outcome_not that
such evidence “could” have resulted in a difference sentence as Pastro argues. Pastro
has presented nothing in his Motion that had it been presented to the sentencing
judge, as far as 1 can tell, would have resulted in a lesser sentence.

Motion for Appointment of Counsel

Finally, Pastro filed a motion for appointment of counsel shortly after he filed
the instant Motion. This request should be denied as he has failed to meet the
requirements of Rule 61(e)(2)_i.e. Pastro’s conviction was never affirmed by the

Delaware Supreme Court on direct appellate review, the Motion does not set forth

any substantial claims, and no specific or exceptional circumstance warrant
appointment of counsel.
Conclusion

Outside of Pastro’s conclusory allegations, there is nothing in the record to
indicate that he was not properly represented or advised by his lawyer before he
entered his guilty plea. The only fact that Pastro has established to any degree of
certainty is that he is now unhappy with his decision to have pled guilty.

Accordingly, 1 conclude that Pastro’s claims of ineffective assistance of
counsel are meritless and that his Motion should be Denied.

IT IS SO RECOMMENDED.

 

Bradley V. Mnin§,
Commissioner

oc: Prothonotary
cc: Defendant via first class mail, counsel via e-mail

10

