         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


    STATE OF DELAWARE,                        )
                                              )
                                              )
               v.                             )
                                              )
    KENNETH FOWLER,                           )   Cr. A. No. 1212003101
                                              )
         Defendant.                           )
                                              )
                                              )


                            Date Submitted: July 6, 2018
                            Date Decided: July 23, 2018


                    On Defendant Kenneth Fowler’s Motion for
                Reconsideration of Commissioner’s Order: DENIED.



                                         ORDER

        The facts of this case have been sufficiently summarized in the

Commissioner’s Order therefore that they need not be reiterated in totality here. 1

Defendant was charged with drug dealing and conspiracy arising from a traffic stop

on December 5, 2012. Following a jury trial in September 2013 Defendant was




1
    State v. Fowler, 2018 WL 2383579, at *4 (Del. Super. Ct. May 23, 2018).
                                          1
convicted on both charges. Defendant filed a direct appeal to the Delaware Supreme

Court where the judgment was affirmed.2

        Defendant initially filed a pro-se Motion for Postconviction Relief on January

13, 2017. That Motion was summarily dismissed by this Court on procedural

grounds. A second Motion was filed in September 2017 and an amended Motion

filed in November 2017.        This Motion for Reconsideration is based on the

Commissioner’s May 23, 2018 Order regarding the November 2017 Motion for

Postconviction Relief.

                                  Defendant’s Assertions

        Defendant seeks reconsideration of the Commissioner’s Order claiming that

his November 2017 Motion should not be procedurally barred as repetitive under

Rule 61 (i)(2). Defendant’s amended Motion for Postconviction Relief and Motion

for Reconsideration make one claim for relief; ineffective assistance of counsel.

                                         Discussion

        The Court must address Defendant’s motion in regard to Rule 61(i) procedural

bars to relief before assessing the merits of his motion.3 The State has taken the

position and the Court agrees that Defendant’s motion is not time barred or


2
    Fowler v. State, 148 A.3d 1170 (Del. 2016).
3
    Younger v. State, 580 A.2d 552, 554 (Del. 1990).
                                           2
repetitive. Rule 61(i)(3) bars relief if the motion includes claims not asserted in the

proceedings leading to the final judgment.4            This bar is not applicable as to

Defendant’s claim of ineffective assistance of counsel, which cannot be raised in a

direct appeal.5 However, Superior Court Criminal Rule 61(i)(3) bars any claims for

relief not asserted in the proceedings leading to a judgment of conviction as required

by the rules of this Court, unless Defendant can show “cause” for relief and “actual

prejudice” from violation of his rights.6

      Defendant     is   correct   in   his       assertion   that   the   Commissioner’s

Recommendation of a denial states that his motion for relief is procedurally barred.

However, the Commissioner engaged in a thorough analysis of Defendant’s

ineffective assistance of counsel claims.            The Commissioner concluded that

Defendant “failed to establish that his counsel's strategic decision was deficient in

any respect or that he was actually prejudiced as a result thereof.”7

      After a careful reading of Defendant’s Motion, the State’s response, and the

Commissioner’s Recommendation this Court concludes that the Motion should be




4
  Super. Ct. Crim. R. 61(i)(3).
5
  See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. Ct. June 29, 2016); see
also Watson v. State, 2013 WL 5745708, at *2 (Del. Oct. 21, 2013).
6
  See Flamer v. State, 585 A.2d 736, 747 (Del. 1990).
7
  State v. Fowler, 2018 WL 2383579, at *7 (Del. Super. Ct. May 23, 2018).
                                              3
denied based on the basis of the Commissioner’s analysis of Defendant’s ineffective

assistance of counsel claims.

      The Court agrees with the Recommendation that Defendant’s ineffective

assistance of counsel claims are without merit. Accordingly, Defendant's Motion

for Reconsideration of Commissioner’s Order is DENIED, the order is final.

      IT IS SO ORDERED.




                                         The Honorable Calvin L. Scott, Jr.




                                         4
