IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1507023490

)

)

)

ROBERT L. URQUHART, )
)

Defendant. )

Date Decided: March 15, 2018

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

Phillip M. Casale, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St. 7th Floor, Wilmington, DE, 19801. Attomey for the

State.

Natalie S. Woloshin, Esquire, 3200 Concord Pike, PO BoX 7329, Wilmington, DE
19803. Trial Counsel.

Robert Urquhart, pro se.

MANNING, Commissioner:

This 15th day of March, 2018, upon consideration of defendant Robert L.
Urquhart’s Motion for Postconviction Relief (“l\/Iotion”), I find and recommend the
following:

Facts and Procedural Historv

On July 30, 2015, officers With the Wilmington Police Department, FBI, and
Safe Streets Task Force, executed search Warrants for Urquhart, his address at 104
Rita Road and a vehicle associated With him in connection With an illegal drug
investigation Officers located 87.8 grams of crack cocaine and 869 bags of heroin
Weighing 13 grams in a detached shed in Urquhart’s backyard. Officers also located
38 bags of crack cocaine Weighing over 29 grams and 2,393 bags of heroin Weighing
35 grams in a vehicle parked in the driveway of 104 Rita Road. The vehicle had
been rented by Urquhart and located inside the vehicle Were documents in
Urquhart’s name as Well as his Wallet. In the house, police located $9,613.00 in
cash. According to the police reports, Urquhart made post-Miranda statements
admitting to possession/ownership of the drugs in the shed, but not the car.
Additionally, When shown the bags of drugs found in the shed by police, Urquhart
admitted that the bags contained heroin and crack cocaine, stating that he had just

“re-upped” and that he “moves a lot of drugs.” l In total, 3,262 bags of heroin Were

 

1 All facts cited herein are taken from the police reports attached to pleadings filed by the State
and Trial Counsel.

located which field-tested positive, and 41 bags of crack cocaine were located which
also field-tested positive.

Urquhart was subsequently indicted on September 28, 2015, for Aggravated
Possession of cocaine (more than 25 grams), Drug Dealing cocaine (more than 20
grams), Aggravated Possession of heroin (more than 5 grams), Drug Dealing heroin
(more than 4 grams), Drug Dealing Marijuana and Possession of Drug
Paraphernalia. Per SENTAC guidelines, Urquhart faced 2 - 25 years on each of the
counts of Aggravated Possession and Drug Dealing heroin or cocaine, for a total of
eight years minimum/mandatory Level 5 time if convicted as indicted.2

Trial Counsel (hereinafter “Counsel”) was retained to represent Urquhart in
August 2015. According to the detailed Affidavit filed by Counsel in response to
Urquhart’s Motion, she requested discovery from the State and meet with Urquhart
on at least four occasions prior to the entry of his guilty plea. She also sent him a
number of letters memorializing their conversations and answering his questions.3

After negotiations between the State and Counsel, Urquhart accepted and
entered a plea of guilty to two counts of Drug Dealing (one at a lower tier weight as

a lesser included offense) on January 6, 2016. The plea agreement called for a

 

2 Drug Dealing marijuana and Possession of Drug Paraphernalia did not carry any mandatory jail
time.

3 D.I. #19.

presentence investigation, a minimum/mandatory Level 5 period of two years, and
the State agreed to cap its recommendation of unsuspended Level 5 time at 4 years.
lt is important to note that Counsel never received a copy of the Office of the Chief
Medical Examiner (“OCME”) controlled substances laboratory report confirming
the suspected substances or weights as part of the discovery because the drugs had
not yet been tested by the time Urquhart entered his guilty plea.4 The State submitted
documentation showing that once Urquhart had pled guilty, the State contacted the
OCME and requested that the drugs be removed from the testing schedule.5
Urquhart was sentenced on March 11, 2016, to three and one-half years of
unsuspended Level 5 time, followed by probation. Urquhart did not file an appeal
to the Delaware Supreme Court, but he did file a motion for sentence modification

that was denied on July 14, 2016.6

 

4 State’s Letter Response, April 6, 2017, D.l. # 27, Exhibit A.

5 Id.

6r).l. #13.

Urquhart filed the instant Motion on October 14, 2016.7 In his Motion,

Urquhart’s claims for postconviction relief, quoted verbatim, are as follows:

Ground One:

Ground Two:

Ground Three:

Ineffective Assistance of Counsel. Counsels lack of
investigation into questioning whether or not what the
police department found at my residence as well as why
they were even interested in my apprehension were
authenticated by anyone besides themselves.

Ineffective Assistance of Counsel/suppression of
Favorable Evidence. Due to a lack of interest in
pursuing results of crucial evidence that could’ve
been suppressed, l was wrongly convicted by
evidence that was possibly tampered with that was
later revealed to me after my plea agreement was
signed, with notarized documents to support my
accusation.

Ineffective Assistance of Counsel/Involuntary or
coerced plea. Due to my inability to comprehend to
what my counsel had to repeatedly explain to me
about the various guidelines concerning sentences
for drug charges along with the process of it all l
reverted back to my looming family turmoil that has
since Spiraled to wear doom. l was promised by
counsel that she would request the minimum of two
years, but later failed to request anything less than
three years.

 

7 D.l. #15.

The Motion was referred to Judge Wallace who issued an Order to Expand
the Record and briefing schedule on October 18, 2016.8 Counsel filed her Affidavit
on December 13, 2016. The State filed its Response on March 20, 2017.

However, just prior to the State’s Response, on March 17, 2017, Urquhart
filed a document titled “Motion to Amed/Expand The Record. Crim. Rule 61(g) And
to Compel Discovery of Missing Document, Crim Rule (16).”9 In this document,
Urquhart raised a number of additional grounds for relief_-very unhelpfully in
narrative form. As best l can discern, Urquhart makes the following arguments: (1)
Counsel knew about the misconduct at the OCME as she was counsel in State v,
Bz`nard, 2016 WL 35 8990 (Del. Super. January 22, 2016), (2) Counsel was
ineffective for failing to request or obtain Discovery (i.e. the laboratory report)
regarding the drugs before advising him to plead guilty, (3) Counsel wore “two hats”
and coerced him into pleading guilty such that his plea was unknowingly,
unintelligently and involuntarily entered, (4) that had he been in possession of the
laboratory report there is a “great probability” of a different result, (5) that the
laboratory report was “intentionally” withheld by the State and the State negotiated

the plea in “bad faith,” (6) Counsel never advised him that without the report the

 

8 D.l. #18.

9 D.I. #24.

State could not proceed to trial, and (7) that the misconduct in the OCME and with
chemist Bipin Mody violated his due process rights and prejudiced him.

The State filed a Response to the Amended Motion on April 6, 2017.10
Urquhart filed a Reply on June 19, 2017.ll In his Reply, Urquhart requested an
evidentiary hearing. Per Judge Wallace’s request, the State filed a short response on
September 28, 2017, arguing that the request for the evidentiary hearing should be
denied.12

The matter was referred to the undersigned commissioner on December 6,
2017. l have thoroughly reviewed the record in this case, including the additional
information and transcripts provided by the parties in response to the allegations,
and do not believe an evidentiary hearing is necessary or warranted

Legal Standard

To prevail on an ineffective assistance of counsel claim, a defendant must
meet the two-pronged Strickland 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.13 The first prong requires a defendant to Show

 

10 D.I. #27.
ll D.I. #30.

12 D.I. #33.
13 Sl‘ricklana' v. Washington, 466 U.S. 668, 687-88, 694 (1984).

by a preponderance of the evidence that defense counsel was not reasonably
competent, while the second prong requires a 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.14

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.15 Mere allegations of ineffectiveness will
not suffice_a defendant must make and substantiate concrete allegations of actual
prejudice.16 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
judgment17

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

decisions were being made.18 A fair assessment of attorney performance requires

that every effort is made to eliminate the distorting efforts of hindsight Second

 

l41a1

15 id. ar 697.

16 Younger v. smie, 580 A.2d 552, 556 (Dei. 1990).
11 S¢rickzand, 466 U.s. at 691.

18 Ia’.

guessing or “Monday morning quarterbacking” should be avoided. 19 Most germane
to this case, “[i]n order to prevail on a claim of ineffective assistance of counsel in
connection with a guilty plea, a defendant must show that, but for his counsel’s
unprofessional errors, he would not have pleaded guilty but would have insisted on

proceeding to trial.”ZO

.A_na_lM
The procedural requirements of Superior Court Criminal Rule 61 must be
addressed before considering the merits of any argument21 Urquhart’s Motion was
timely filed and is not repetitive, thus satisfying the requirements of Rule 61 (i)(l)
and (2). All of Urquhart’s claims can be divided into one of three broad categories:
l. Complaints about Counsel
In Urquhart’s initial Motion, he makes various complaints about the police
investigation, Counsel’s “lack of interest,” and his inability to comprehend the
situation he found himself in. All of his vague complaints are meritless and
unsupported by the record. By entering a guilty plea, Urquhart waved any right to

challenge the police investigation/search of his residence and vehicles. Urquhart

 

19 Id

20 Miller v. State, 840, A.2d, 1229, 1231 (Del. 2003) (citing Somerville v. State, 703 A.2d 629,
631 (Del.1997)).

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

acknowledged this fact during his guilty plea colloquy.22 Additionally, as outlined
above, the record belies Urquhart’s claims that Counsel showed a lack of interest in
his case, or that he did not understand what he was facing when he decided to plead
guilty.23 Urquhart’s claim that he was “wrongly convicted by evidence that was
possibly tampered with,” is simply false. The drugs locate by police were never
handled or tested by the OCl\/IE. However, the drugs did field tested positive and
Urquhart admitted that he sells drugs. Urquhart’s final claim, that Counsel
“promised” she would request the minimum of two years,” is unsupported by the
record and without merit. Urquhart was well aware of the penalty range he faced at
the time of sentencing and acknowledge during the plea colloquy that no one had
promised him what his sentence would be.24
2. Laboratorv report and misconduct in the OCME

All of Urquhart’s arguments regarding the failure of Counsel to obtain the
controlled substances laboratory report, the misconduct that occurred within the
OCl\/IE, and with chemist Bipin Mody, are misplaced and meritless Additionally,
Urquhart makes much of Counsel Statement in her Affidavit that “if l had known
about the long-standing problems with Mr. Mody, my advice to Mr. Urquhart would

likely had been different.” The simple fact is whatever had occurred within the

 

22 D.I. #25, State’s Response, Exhibit A, p. 9.

24 D.I. #25, State’s Response, Exhibit A, p. 8.

OCME and with Bipin Mody, it had no effect on this case or Urquhart’s decision to
plead guilty. The record is clear: the drugs were never handled by Mody or tested
by the OCME because the case resolved with a guilty plea prior to the testing
deadline. Thus, no party to this case relied on OCME testing to make strategic
decisions during the litigation. Additionally, I am unpersuaded by Counsel’s remark
that her advice “likely” would have been different had she known about problems
within the OCME-_Counsel never elaborates as to why or in what way her advice
to Urquhart might have been different

More importantly, however, the Delaware Supreme Court has already
considered this very argument and rejected it. In Aricia’iacono v. State, the Court
reiterated that “if a defendant knowingly pled guilty to a drug crime, he [can] not
escape his plea by arguing that had he known that the OCl\/HE had problems, he
would not have admitted to his criminal misconduct in possessing illegal
narcotics.”25 The holding in Aricidz'acono is squarely on-point with the facts in this
case. Finally, this issue could have been raised on direct appeal by Urquhart, but
was not, making it barred by Rule 61(i)(3).

Despite what Urquhart might think, the fact that Counsel advised Urquhart to

accept the State’s plea offer before she had obtained the laboratory report is in no

 

25 Aricidiacono, 125 A.3d 677, 678 (Del. 2015) (citing Brown v. State, 108 A.3d 1201,1202 (Del.
2015)).

10

way per se indicative of deficient performance or professionally unreasonable The
record clearly establishes that Counsel was very familiar with the facts and various
legal issues in the case, and most importantly, the dangers inherent in rejecting the
State’s generous early plea offer and continuing the litigation. In my opinion,
Counsel correctly estimated that even if she had able to win a suppression motion, it
was not case-dispositive and the balance of the drugs in the vehicle would still have
been admissible at trial. Additionally, had Urquhart pursued the suppression motion,
there was no guarantee that the State would have made as generous of a plea offer
in the future.26

Urquhart’s Brady violation arguments are also meritless. In Brown v. State,
the Delaware Supreme Court held that evidence of misconduct within the OCME
was relevant as impeachment evidence only.27 Thus, the State was under no
obligation to turn over any evidence regarding Mody at the time Urquhart pled
guilty. This is especially true considering the fact that no chemist had yet tested the
drugs.

Urquhart’s claim that Counsel should have known about the problems within
the OCME due to her involvement in the Binara' case, and thus rendered different

advice, is also misplaced First, the ultimate result in Binard is unhelpful to

 

26 D.i. #25, p.4-5.
21 Brown v. siare, 108 A.2d 1201, 1027 (Dei. 2015).

ll

Urquhart-Binard’s conviction, following his guilty plea, was upheld by the
Delaware Supreme Court.28 Second, and most importantly, the issue in the Binara’
case involved known misconduct by a different chemist within the OCME_who
had actually tested the drugs in question_not Bipin Mody.
3. Coerced Guilty Plea

Urquhart alleges that he was “coerced” into accepting a guilty plea. However,
he has proffered no specific facts or examples to explain how he was coerced by
Counsel. Outside of bare 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 pleas. In fact, the record indicates that Counsel spent a
considerable amount of time speaking with him about the case, negotiating with the
State and corresponding with him prior to the entry of his plea. In my estimation,
all of the guilty plea paperwork and the transcript from the plea colloquy clearly
indicates that Urquhart made a calculated decision and was aware of exactly what
he faced when he made his decision. If is far more likely that Urquhart felt pressured
to accept the guilty plea, because had he gone to trial and been convicted, he faced
at least eight years minimum/mandatory at Level 5, as opposed to the two years he
faced under the plea agreement Urquhart seems to forget that he made admissions

to police at the time of his arrest that most likely would have resulted in guilty

 

28 Binard v. State, 155 A.3d 1331 (Del. 2017).

12

verdicts as to all of the drugs located in the shed And, even if the drugs in the Shed
had been suppressed, the evidence linking him to the substantial quantity of drugs in
the vehicle parked in his driveway_that had been rented in his name_-was
substantial
Conclusion
For the foregoing reasons, Counsel’s representation was professionally
reasonable and Urquhart’s Motion should be Denied.

IT IS SO RECOMMENDED.

Bradley V.§anning,

Commissioner

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

13

