IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
V. I.D. No. 1601018537

GREGORY PARKER,

Defendant.
Submitted: March 2, 2020
Decided: August 24, 2020

Upon Defendant’s Motion for Postconviction Relief,
DENIED.

ORDER

Periann Doko, Esquire, Deputy Attorney General, Department of Justice, 820 North
French Street, Wilmington, DE 19801, Attorney for the State.

Gwendolyn M. Osborn-Gustavson, Esquire, Schwartz & Schwartz, Attorneys at

Law, P.A., 1140 South State Street, Dover, DE 19901, Attorney for Defendant
Gregory Parker.

WHARTON, J.
This 24th day of August, 2020, upon consideration of Defendant Gregory
Parker’s (“Parker”) timely pro se Motion for Postconviction Relief (“PCR),
postconviction counsel’s Amended Motion for Postconviction Relief,” the affidavit
of trial counsel?, the State’s Response to Defendant’s Motion for Postconviction
Relief, Parker’s Reply to State’s Answer to Defendant’s Motion for Postconviction
Relief,’ and the record in this matter, it appears to the Court that:

I. On November 13, 2017 Parker pled guilty to Murder Second Degree
and Possession of a Deadly Weapon During the Commission of a Felony
(“PDWDCEF).° The plea agreement provided for open sentencing, although 12 years
of any sentence the court imposed would be a minimum mandatory sentence.’ On
February 2, 2017, after the completion of a presentence investigation, the Court
sentenced Parker to 25 years at Level V, suspended after 20 years for decreasing
levels of probation on the murder charge and five years on the PDWDCEF charge.®

2. On November 26, 2018, Parker filed a pro se Motion for Postconviction

Relief,’ which he refiled on January 2, 2019, alleging three claims of ineffective

 

'D.I. 26, refiled as D.I. 30.
2D. 45.

IDI. 48.

4D. 47.

sD.I. 52.

6D. I. 22.

Id.

8D I. 25.

9D. 26.
assistance of counsel (“IAC”),'° His request for appointment of counsel was granted
on January 7, 2019.'' Postconviction relief (“PCR”) counsel was appointed May 14,
2019.'? PCR counsel filed an Amended Postconviction Relief Motion (“AMPCR”)
on October 2, 2019.!3 Pursuant to the Court’s Order, trial counsel submitted his
affidavit responding to the IAC allegation in the AMPCR on November 8, 2019.!4
The State responded on December 6, 2019,'° and Parker replied on March 2, 2020.'°

3, In his APCR Motion, Parker asserts a single claim of [AC which
amplifies one of the grounds he alleged in his pro se motion, and waives the other
two claims.'’ Parker’s IAC allegation claims that trial counsel was ineffective at his
sentencing hearing by failing to assemble and present mitigating evidence, failing to
properly prepare Parker to address the Court, and for suggesting a sentence longer
that Parker wanted him to recommend.!® Trial counsel states that he did his best to
prepare Parker, whom he described as “an uncooperative and recalcitrant client,” for
sentencing.'” Citing the sentencing hearing transcript, he also maintains that he did

argue a variety of mitigating factors, which he had developed through his

 

DI. 30.
UD. 34.
2D J. 40.
BDI. 45.
4 DT. 48.
SDI. 47.
'6 DT. 52.
7—.T. 45.
8 Id.

oD. 48.
conversations with Parker and through a psycho-forensic examiner, to the Court.?°
It its response, the State argues that Parker has failed to meet either the performance
of prejudice prongs of Strickland.*' The State further argues that trial counsel did
argue a number of mitigating factors at sentencing and disputes Parker’s assessment
of the effect of his allocution on the Court.””

4, 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
61(i).2? Ifa procedural bar exists, then the Court will not consider the merits of the
postconviction claim.”4

5. | Under Delaware Superior Court Rules of Criminal Procedure, a motion
for postconviction relief can be barred for time limitations, repetitive motions,
procedural defaults, and former adjudications. A motion exceeds time limitations if
it 1s filed more than one year after the conviction becomes final or if it asserts a newly
recognized, retroactively applied right more than one year after it was first
recognized.”> A motion is considered repetitive and therefore barred if it asserts any

ground for relief “not asserted in a prior post-conviction proceeding.” Repetitive

 

20 Id.

1D—).T. 47,

2 Id.

3 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
2 Id.

*5 Super. Ct. Crim. R. 61(i)(1).

*6 Super. Ct. Crim. R. 61(i)(2).
motions are only considered if it is “warranted in the interest of justice.”?’ Grounds
for relief “not asserted in the proceedings leading to the judgment of conviction” are
barred as procedurally defaulted unless the movant can show “cause for relief’ and
“prejudice from [the] violation.’”* Grounds for relief formerly adjudicated in the case,
including “proceedings leading to the judgment of conviction, in an appeal, in a post-
conviction proceeding, or in a federal habeas corpus hearing” are barred.*? Former
adjudications are only reconsidered if “warranted in the interest of justice.”

6. This APCR Motion is a timely first motion for postconviction relief
alleging IAC. Accordingly, the Court will consider the AMPCR on its merits.

7. To bring an ineffective assistance of counsel claim successfully, a claimant
must demonstrate: (1) that counsel’s performance was deficient; and (2) that the
deficiencies prejudiced the claimant by depriving him or her ofa fair trial with reliable
results.*! To prove counsel’s deficiency, a defendant must show that counsel’s
representation fell below an objective standard of reasonableness.** Moreover, a
defendant must make concrete allegations of actual prejudice and substantiate them

or risk summary dismissal.*? “[A] court must indulge in a strong presumption that

 

ad Wa

8 Super. Ct. Crim. R. 61(1)(3).

9 Super. Ct. Crim. R. 61(i)(4).

30 Id.

| Strickland v. Washington, 466 U.S. 668, 688 (1984).
2 Id. at 667-68.

2 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
5
counsel’s conduct falls within the wide range of reasonable professional assistance.”*4
A successful Sixth Amendment claim of ineffective assistance of counsel requires a
showing “that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’ When addressing
the prejudice prong of the ineffective assistance of counsel test in the context of a
sentencing, the Delaware Supreme Court has held that:

Strickland requires that a court assess whether “‘counsel’s
representation fell below an objective standard of
reasonableness,” and whether “there is a reasonable
probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.”
And a reasonable probability is the probability sufficient
to “swa[y] a reasonable sentencing judge to decide [the
defendant’s] sentence differently’**

Both the United States Supreme Court and the Delaware Supreme Court have
recognized that the American Bar Association standards are “guides to determining
what [constitutes] reasonable [representation].*’ Those standards advise:

sentencing counsel should: (1) ‘be fully informed
regarding available sentencing alternatives’; (2) consider
and explain the consequences of the various dispositions
available to the accused; (3) ‘alert the accused to the right
of allocution’; and (4) ‘consider with the client the
potential benefits of the judge hearing a personal statement
from the defendan[t] as contrasted with the possible
dangers of making a statement that could adversely impact

 

* Strickland, 446 U.S. at 689.

38 Td. at 694.

6 Harden v. State, 180 A.3d 1037, 1045 (Del. 2018), (quoting Taylor v. State, 32
A.3d 374, (Del. 2011)).

7 Id. at 1046, citing Padilla v. Kentucky, 559 U.S. 356, 366 2010) (quoting

Strickland, 466 U.S. at 688).
6
the sentencing judge’s decision or the merits of an
appeal.’*8

An inmate must satisfy the proof requirements of both prongs to succeed on an
ineffective assistance of counsel claim. Failure to do so on either prong will doom
the claim and the Court need not address the other.°?

8. The Court is well positioned to assess trial counsel’s effectiveness in
representing Parker at sentencing for the obvious reason that it was a witness to
counsel’s performance. Parker challenges his trial counsel’s efforts in conducting a
mitigation review, citing an absence of character references, or an investigation of the
relationship between Parker and the victim. Unfortunately, postconviction counsel
has provided the Court with neither character references, nor the results of any such
investigation. As a result the Court is unable to assess the value of either. Moreover,
trial counsel and a psycho-forensic evaluator with his office met many times with the
Parker in an effort to develop mitigation evidence. These efforts met with some
success in that trial counsel was able to negotiate a plea to a reduced homicide charge.
Much of that mitigation evidence is found in the Psycho-Forensic Evaluation report
of Mandell J. Much, Ph.D. which was provided to the Court as part of the presentence

investigation. This substantial mitigation information provided by trial counsel,

 

38 Jd, (citing ABA STANDARDS FOR CRIMINAL JUSTICE: THE DEFENSE FUNCTION,
Standard 4-8.3(a), (b), (f) (4 ed. 2015)).

% Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an

attorney performed deficiently if the deficiency did not prejudice the defendant.”’).
7
which was essentially unchallenged by the State, reflects favorably on trial counsel’s
mitigation efforts. Having provided this information to the Court, it was unnecessary
for trial counsel to dwell on it beyond the objectively reasonable argument he made
at the sentencing hearing. Accordingly, the Court finds Parker has failed to
demonstrate performance deficiency or prejudice in these two areas.

9. The Court next turns to Parker’s claim that he was inadequately prepared
for his sentencing allocution, resulting in an allocution that made a poor impression
on the Court. On this point, unlike counsel, the Court does not need to speculate on
the effectiveness of Parker’s allocution. The Court knows. It accepts that trial counsel
made efforts to persuade Parker that he should accept responsibility and express
remorse in his allocution, and that trial counsel did his best to prepare Parker for
sentencing. What postconviction counsel appears to misunderstand is that the Court
was not put off by Parker’s sentencing comments. Instead, the Court was persuaded
that Parker was not a violent person and was genuinely remorseful, even to the extent
of seriously contemplating suicide. Further, the Court addressed with Parker the
disparity between the forensic analysis of the crime scene and his version of the event
(even acknowledging that Parker might believe his version), not in an effort to
challenge him, but to explain its sentence to him.*® In sum, neither Parker’s
allocution, nor any alleged deficiencies in trial counsel’s preparation of him for it had

any adverse effect on his sentence. Similarly, the Court views trial counsel’s

 

Tr. Sent. Hrg. (Feb. 2, 2018) at 16, D.I. 37.
8
sentencing recommendation of 22-25 years as a strategically reasonable attempt to
present a plausible alternative to the Court in order to avoid the longer sentence
recommended by the State. The facts of the crime are what dictated the Court’s
sentence, not anything trial counsel or Parker did or said at sentencing. On these
points as well, the Court finds that Parker has failed to meet his burden under both
prongs of Strickland.

THEREFORE, the Defendant’s Amended Motion for Postconviction Relief is

DENIED.

IT IS SO ORDERED.

 

 

/
i W. Wharton, J.
