         IN THE SUPREME COURT OF THE STATE OF DELAWARE

MONIR GEORGE,                             §
                                          §      No. 285, 2014
      Defendant Below-                    §
      Appellant,                          §      Court Below: Superior Court
                                          §      of the State of Delaware in and
v.                                        §      for New Castle County
                                          §
STATE OF DELAWARE,                        §      No. 0805035299
                                          §
      Plaintiff Below-                    §
      Appellee.                           §

                           Submitted: January 14, 2015
                             Decided: March 6, 2015

      Before STRINE, Chief Justice, HOLLAND, and VAUGHN, Justices.

                                    ORDER
      On this 6th day of March 2015, it appears to the Court that:

      (1) Defendant-below/Appellant Monir George (“George”) appeals from a

Superior Court Order denying his amended Rule 61 motion for postconviction

relief. George was found guilty but mentally ill of Murder in the First Degree,

Attempted Murder in the First Degree, Reckless Endangering in the First Degree,

and three counts of Possession of a Firearm During the Commission of a Felony

(“PFDCF”). On direct appeal, we affirmed George’s convictions. In this appeal,

George raises three claims. First, George contends that the trial court erred by not

finding that his trial counsel provided ineffective assistance by failing to litigate

whether George intelligently waived his right to a jury trial. Second, George

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contends that the trial court erred by finding that his claim of ineffective assistance

of counsel was barred by Superior Court Criminal Rule 61(i)(4). Finally, George

contends that the trial court erred by refusing to grant an evidentiary hearing to

determine whether other grounds existed for postconviction relief. We find no

merit to George’s claims. Accordingly, we affirm.

       (2) In May 2008, George was arrested for the shooting death of Malak

Michael (“Michael”), a deacon and chief fundraiser for St. Marty’s Coptic

Orthodox Church.1 Prior to trial, George waived his right to a jury trial by signing

a waiver of jury form, and by asserting his desire to proceed with a bench trial in

the following colloquy with the trial court:

           THE COURT: All right. Mr. George, you signed a paper, after
           a colloquy with me, and after discussions with your counsel,
           that indicate your wish to waive a jury trial, your wish to give
           up your right, your constitutional right, to be tried by a jury and,
           instead, your wish to proceed in a bench trial, with the judge
           sitting as the trier of fact. Is that your wish?
           THE DEFENDANT: Yes, your Honor.
           THE COURT: Do you have any questions or concerns about
           that?
           THE DEFENDANT: No.
           THE COURT: Ms. Van Amerongen.
           DEFENSE COUNSEL: No, Your Honor.

       (3) At trial, four witnesses to the incident, two of whom assisted in

disarming George after he shot Michael, testified against George. A number of


1
  Unless otherwise indicated, these facts are taken directly from this Court’s Order in George’s
direct appeal. George v. State, 2010 WL 4009202 (Del. Oct. 13, 2010).

                                                2
witnesses also testified concerning George’s pattern of animosity toward the

church clergy and George’s depressed mood prior to the shooting. Additionally,

three experts from the Delaware Psychiatric Center—Robert Thompson, Ph.D., a

forensic psychologist, Carol Tavani, M.D., a psychiatrist, and Stephen Mechanick,

M.D., also a psychiatrist, testified concerning George’s mental state at the time of

the incident. Drs. Thompson and Mechanick opined that George was mentally ill

at the time of the shooting. Dr. Tavani opined that he was insane at the time of the

shooting. George was convicted of all charges against him, and sentenced to life in

prison on the first degree murder conviction, to 15 years at Level V on the

attempted murder conviction, to 1 year at Level V on the reckless endangering

conviction, and to 3 years at Level V on each weapon conviction. George filed a

direct appeal with this Court.

      (4) On direct appeal, George claimed that: (1) he was deprived of his

constitutional right to testify on his own behalf; (2) his execution of the waiver of

jury trial form was involuntary; (3) one of the mental health experts attempted to

bribe him for his testimony; and (4) witness statements moved into evidence under

11 Del. C. § 3507 did not comport with the foundational requirements.             In

affirming the Superior Court’s judgment, we concluded that George’s claims were

wholly without merit and devoid of any arguably appealable issue.




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Specifically, we stated:

           Our review of the record in this case reflects no factual support
           for any of George’s claims. As for his first two claims, the
           record reflects that, before trial, the trial judge carefully
           questioned George regarding his decision to waive a jury trial
           and that, during trial, the judge carefully questioned him
           concerning his decision not to testify in his own behalf. The
           record reflects that George’s decisions to waive a jury trial and
           to waive his right to testify were knowing and voluntary. The
           record likewise does not support George’s third claim that one
           of the testifying mental health experts asked him for a bribe. As
           for George’s fourth, and final, claim, the record reflects that
           two out-of-court statements were admitted into evidence under
           § 3507. In neither case is there any support for George’s claim
           that the proper foundational requirements of the statute were
           not met.2

       (5) In October 2011, George filed a pro se motion for postconviction relief.

The Superior Court referred the motion to a Superior Court Commissioner for

proposed findings and recommendation pursuant to 10 Del. C. § 512(b)(1)(b)3 and

Superior Court Criminal Rule 62(a)(5).4              The Commissioner issued a report

recommending that the motion be denied.                  George then filed motions for

appointment of counsel and an evidentiary hearing.                  The trial court denied

George’s motion for appointment of counsel. Soon after, the trial court denied

George’s motion for an evidentiary hearing and for postconviction relief. On


2
  Id. at *2.
3
  10 Del. C. § 512(b)(1)(b) (“A judge may also designate a Commissioner to conduct hearings,
including evidentiary hearings, and to submit to a judge of the Court proposed findings of fact
and recommendations . . . .”).
4
  Super. Ct. Crim. R. 62(a)(5) (permitting Commissioners to conduct case-dispositive evidentiary
hearings, and to submit to the court proposed findings of fact and recommendations).

                                               4
appeal, we vacated the trial court’s order and remanded with instructions that the

trial court appoint counsel for George, and allow him to refile objections to the

Commissioner’s report or file an amended motion for postconviction relief.

       (6) In June 2013, George’s newly appointed counsel filed an amended

motion for postconviction relief.5 The trial court again referred George’s motion to

a Superior Court Commissioner.                        The Commissioner issued a report

recommending that George’s motion be denied.                       George appealed from the

Commissioner’s findings of fact and recommendation.                         The Superior Court

conducted a de novo review, adopted the Commissioner’s report and

recommendation, and denied postconviction relief. This appeal followed.

       (7) “We review a Superior Court judge’s denial of a Rule 61 motion for

postconviction relief for abuse of discretion.”6 Constitutional questions and other



5
  George raised seven issues in his amended motion for postconviction relief: (1) trial and
appellate counsel were ineffective by failing to obtain, preserve, and raise on direct appeal the
issue of an intelligent waiver of the defendant’s right to jury trial; (2) trial counsel was
ineffective in failing to accept the Superior Court’s offer to appoint an independent expert
witness to evaluate the defendant’s competency; (3) trial counsel was ineffective by failing to
investigate, preserve, and raise an issue of interference by the Department of Correction with the
defendant’s ability to communicate with trial counsel; (4) trial counsel was ineffective by failing
to investigate, preserve, and raise the defendant’s allegation that the State’s expert witness
attempted to solicit a bribe; (5) trial counsel was ineffective by failing to request sequestration of
witnesses and an instruction that certain witnesses not to speak with each other regarding the
case; (6) trial counsel was ineffective by failing to investigate and retain a pharmacological
expert witness and to present expert testimony on the effects of George’s medications at the time
of the offenses; and (7) trial counsel was ineffective by failing to permit George to testify in his
own defense.
6
  Neal v. State, 80 A.3d 935, 941 (Del. 2013) (citing Ploof v. State, 75 A.3d 811, 819 (Del.
2013)).

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questions of law are reviewed de novo.7 “[We] first must consider the procedural

requirements of Rule 61 before addressing any substantive issues. Superior Court

Criminal Rule 61(i)(4) bars litigation of any claim that was previously adjudicated

unless reconsideration of the claim is warranted in the interest of justice.”8 “[A]

defendant is not entitled to have a court re-examine an issue that has been

previously resolved ‘simply because the claim is refined or restated.’”9

       (8) If the procedural requirements of Rule 61 are satisfied, we review

ineffective assistance of counsel claims under the two-pronged test set forth by the

United States Supreme Court in Strickland v. Washington.10 First, the defendant

must show that counsel’s performance was deficient, “meaning that ‘counsel’s

representation fell below an objective standard of reasonableness.’”11 If counsel is

shown to be deficient, then the defendant must demonstrate prejudice from

counsel’s error.12      “The ‘failure to state with particularity the nature of the

prejudice experienced is fatal to a claim of ineffective assistance of counsel.’”13

“‘[A] court need not determine whether counsel’s performance was deficient



7
  Ploof, 75 A.3d at 820 (citing Swan v. State, 28 A.3d 362, 382 (Del. 2011)).
8
  Campbell v. State, 2009 WL 1525947, at *1 (Del. 2009).
9
  Skinner v. State, 607 A.2d 1170, 1172 (Del.1992) (quoting Riley v. State, 585 A.2d 719, 721
(Del. 1990), abrogated on other grounds by Morgan v. Illinois, 504 U.S. 719 (1992)).
10
   Strickland v. Washington, 466 U.S. 668 (1984).
11
   Cooke v. State, 977 A.2d 803, 848 (Del. 2009) (quoting Strickland, 466 U.S. at 668).
12
   Strickland, 466 U.S. at 687.
13
   Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (quoting Dawson v. State, 673 A.2d 1186,
1196 (Del. 1996)).

                                               6
before examining the prejudice suffered by the defendant as a result of the alleged

deficiencies.’”14

       (9) George’s first two claims on appeal relate to his alleged insufficient

waiver of a jury trial. George contends that his trial counsel was ineffective for

failing to litigate whether his waiver of a jury trial was made knowingly and

voluntarily.15 George also contends that the trial court erred by ruling that his

claim of ineffective assistance of counsel was barred under Rule 61(i)(4).

       (10) We find that George’s first two claims are procedurally barred under

Rule 61(i)(4). As a consequence, we will not address the merits of the issues

contained in his motion for postconviction relief. Our prior ruling on direct appeal

that George’s waiver of a jury trial was knowing and voluntary was a substantive

resolution of George’s present ineffectiveness of counsel claim.16              In order to

prevail on an ineffective assistance of counsel claim, George would have to show

that he was prejudiced by his counsel’s failure to challenge the validity of George’s

waiver to a jury trial. By ruling that George’s waiver was voluntary and knowing,


14
   Id. (quoting Dabney v. State, 2010 WL 703108, at *2 (Del. Mar. 1, 2010)).
15
   In Smith v. State, we found that a judicial inquiry into a valid waiver has two distinct
dimensions:
             “First, the relinquishment of the right must have been voluntary in the
             sense that it was the product of free and deliberate choice rather than
             intimidation, coercion or deception. Second, the waiver must have been
             made with a full awareness of both the nature of the right being
             abandoned and the consequences of the decision to abandon it.”
918 A.2d 1144, 1149 (Del. 2007) (quoting Marine v. State, 607 A.2d 1185, 1195 (Del. 1992)).
16
   See Skinner, 607 A.2d at 1172.

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we effectively precluded George’s ability to prove prejudice under a Strickland

analysis. Thus, the Superior Court did not err in finding that this Court’s holding

on direct appeal barred George from making the same claim, albeit in a different

form, under Rule 61(i)(4). Reconsideration of this previously adjudicated claim is

not warranted in the interest of justice.17

       (11) George’s third and final claim is that the trial court erred by failing to

grant an evidentiary hearing regarding other grounds of alleged ineffective

assistance of counsel. Rule 61(h)(1) grants the Superior Court broad discretion in

determining whether an evidentiary hearing on a postconviction motion is

necessary.18    “[I]t is within the Superior Court’s discretion to determine, after

considering the motion, the State’s response, the movant’s reply and the record of

any prior proceedings, whether an evidentiary hearing is desirable.”19                    “If the

Superior Court determines . . . that an evidentiary hearing is unnecessary . . . then

summary disposition of the motion is entirely appropriate.”20




17
   “As this Court has explained, the ‘interest of justice’ exception provides two pathways to
demonstrate that a claim is not procedurally barred. The exception applies when (1) the previous
ruling was clearly in error or there has been an important change in circumstances, in particular,
the factual basis for issues previously posed, or (2) there is an equitable concern of preventing
injustice.” Lindsey v. State, 2014 WL 98645, at *3 (Del. 2014) (internal citations and quotation
marks omitted).
18
   Maxion v. State, 686 A.2d 148, 151 (Del. 1996); Pennewell v. State, 2005 WL 578444, at *2
(Del. Jan. 26, 2005).
19
   Marin v. State, 2004 WL 716774, at *1 (Del. 2004) (citing Super. Ct. Crim. R. 61(h)(1)).
20
   Maxion, 686 A.2d at 151.

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      (12) George contends that a hearing should have been held concerning: (1)

his allegation that counsel was ineffective for failing to accept the trial court’s offer

to appoint an independent psychiatrist to evaluate his competency; (2) his

allegation that counsel was ineffective for failing to request the trial court to

sequester witnesses and instruct witnesses not to discuss their testimony; (3) his

allegation that counsel was ineffective for failing to allow him to testify; (4) his

allegation that the Department of Correction prevented him from communicating

with counsel due to his being housed in the prison infirmary; and (5) his allegation

that Dr. Mechanick tried to solicit a bribe during his evaluation. We disagree.

      (13) The Superior Court did not abuse its broad discretion under Rule

61(h)(1). Before denying George’s motion for an evidentiary hearing, the trial

court considered George’s trial and appellate counsels’ affidavits. The court also

reviewed George’s own affidavits, the State’s submissions, and the trial record.

Based on the court’s findings, it determined that an evidentiary hearing was

unnecessary. Our review of the record reveals no error on the part of the Superior

Court in its disposition of George’s motion for postconviction relief. Accordingly,

we find that the Superior Court acted within its discretion to dispose of the matter

summarily without an evidentiary hearing.

      NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.


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     BY THE COURT:

     /s/ James T. Vaughn Jr.
     Justice




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