IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID. No. 0709033390
' In and for Kent County
v.
HOWARD E. WOODLIN, : RK07-10-0334-01 through

RK07-l 0-0453-01
Defendant.

ORDER

Submitted: August 14, 2017
Decided: September l2, 2017

On this l2th day of September, 2017 upon consideration of the Defendant’ s Motion
for Postconviction Relief, the Commissioner’s Report and Recommendation, and the
record in this case, it appears that:

l. The defendant, HoWard E. Woodlin (“Woodlin”) Was found guilty, following
a jury trial on November l7, 2008, of one count of Rape in the First Degree Without
Consent, ll Del. C. § 773; one count of Dangerous Crime Against a Child, ll Del. C. §
779; three counts of Endangering the Welfare of a Child, ll Del. C. § 1102; one count
of Unlanul Sexual Contact First Degree, ll Del. C. § 769; one count of Incest, ll Del.
C. § 766; and two counts of Indecent Exposure First Degree, ll Del. C. § 765. A
presentence investigation Was ordered by the Court. On January 27, 2009. Woodlin Was
sentenced to life in prison on the Rape in the First Degree and to an additional thirty-three
years and ten months incarceration, suspended after twenty-five years and ten months for
probation. TWenty-five years of that time includes minimum mandatory time.

2. Woodlin, through counsel, appealed his conviction to the Delaware Supreme
Court. The Supreme Court, affirmed Woodlin’ s conviction and sentence on July 22, 2010.

3. Thereafcer, Woodlin filed a motion for Post Conviction Relief. The procedural

history is set forth in the Commissioners Report and Recommendation of July 18, 2017,

attached hereafter as Exhibit “A”.

4. After the issuance of the Commissioner’ s Report, neither party filed exceptions

NOW, THEREFORE, after a de novo review of the record in this action, and for
the reasons stated in the Commissioner’s Report and Recommendation dated July lSth,
201 7,

IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its entirety.
Accordingly Movant’s Amended Motion for Postconviction Relief pursuant to Superior

Court Criminal Rule 61 is hereby DENIED.

/s/J effrey J Clark
Judge

EXhibit “A”

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 0709033390
In and for Kent County

STATE OF DELAWARE

v.
RK07-10-0445-01 through

HOWARD E. WOODLIN RK07-10-0453-01

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Amended Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Susan G. Schmidhauser, Esq., Deputy Attorney General, Department of Justice,
for the State of Delaware.

Patrick J. Collins, Esquire, Collins and Associates, Wilmington, Delaware for
Defendant.

FREUD, Commissioner
July 18, 2017

The defendant, Howard E. Woodlin (“Woodlin”) was found guilty, following
a jury trial on November 17, 2008, as charged, of one count Rape in the First
Degree Without Consent, 11 Del. C. § 773; one count of Dangerous Crime Against
a Child, 11 Del. C. § 779; three counts of Endangering the Welfare of a Child, 11
Del. C. § 1102; one count of Unlawful Sexual Contact First Degree, 11 Del. C. §

State v. Woodlin
ID No. 0709033390
July 18, 2017

769; one count of Incest, 11 Del. C. § 766; and two counts of Indecent Exposure
First Degree, 11 Del. C. § 765. A presentence investigation was ordered by the
Court. On January 27, 2009, Woodlin was sentenced to life in prison on the Rape
in the First Degree and to an additional thirty-three years and ten months
incarceration, suspended after twenty-five years and ten months for probation,
twenty-five of which were minimum mandatory time.

Woodlin, through counsel, appealed his conviction to the Delaware Supreme
Court. The issue raised on appeal was noted by the Court as follows:

He argues that it was an abuse of discretion by the trial judge to permit
the admission into evidence of his minor daughter’s interview with a
Children’s Advocacy Center (“CAC”) forensic interviewer, Diane
Klecan (“Klecan”) under title 11, section 3507 of the Delaware code.
According to Woodlin, no foundation was laid regarding the perceived
events or truthfulness of the out-of-court statement.1
The Supreme Court, on July 22, 2010, affirmed Woodlin’s conviction and
sentence.2
On May 6, 2011, Woodlin filed a pro se motion for postconviction relief in
which he raised two grounds for relief including ineffective assistance of counsel.

After briefing on the motion was complete, Woodlin on November 11, 2011, filed

a motion to amend his Rule 61 motion. The motion to amend was denied by this

 

1 Woodlin v. State, 3 A.3d 1084, 1085 (Del. 2010).

2 Id. at 1088.

State v. Woodlin
ID No. 0709033390
July 18, 2017

court3 and Woodlin appealed that ruling to the State Supreme Court. Consequently
the matter was stayed in this court. The Supreme Court dismissed the appeal on
July 12, 2012 and the mandate issued on August 1, 2012.4

Briefing on Woodlin’s motion continued and I issued a Report on May 3,
2013 recommending that the Court deny Woodlin’s motion. He next filed a motion
for appointment of counsel and did not appeal my ruling. The Court granted
Woodlin’s motion for appointment of counsel. Next Appointed Counsel filed an
Amended Motion for Postconviction Relief and waived all the grounds raised earlier
in Woodlin’s pro se motion. The pending amended motion alleges ineffective
assistance of Trial Counsel.

FACTS
Following are the facts as set forth by the Delaware Supreme Court:

Woodlin and Tammy Campbell (‘Campbell’) are the
parents of two children: Sarah, born in 2000, and
Matthew, born in 2005. FN3 While Sarah was living
temporarily with Campbell’s aunt, Barbara, Sarah
disclosed to Barbara that she had been sexually assaulted
by her father and that she had witnessed incidents of
sexual contact between her parents.

Barbara took Sarah to the CAC in Kent County on
September 24, 2007, and a recorded interview of then

 

3 State v. Woodlin, Del. Super., ID No. 0709033390, Freud, Comm’r (Nov. 30, 2011)
D.I. 62. Motion for Reconsideration denied by J. Young (Dec. 14, 2012) D.I. 64.

4 Woodlin v. State, 2012 WL 2870332 (Del. Supr.).

3

State v. Woodlin
ID No. 0709033390
July 18, 2017

seven-year-old Sarah was conducted. Two days after the
CAC interview, Campbell and Woodlin were arrested by
the Delaware State Police. Campbell pled guilty to a
charge of Rape in the Second Degree involving her
daughter. Campbell was sentenced to twenty-five years
of incarceration at Level V, suspended after serving ten
years, for probation supervision.

At Woodlin’s trial, Campbell testified that her daughter
observed Woodlin licking her breasts on three occasions,
and that Sarah saw Campbell touching Woodlin’s penis
three occasions.

Campbell also testified that her daughter told her that
Woodlin had touched the child ‘in her vagina area.’
While being interviewed by a Delaware State Police
Detective, Woodlin stated that ‘whatever Campbell said
is what happened. ’

Sarah testified at her father’s 2008 trial. She acknowledged
speaking with Klecan, the CAC forensic interviewer, about
her father ‘ [b]ecause he did something wrong to me. ’ Sarah
did not want to describe what her father did ‘[b]ecause it’s
nasty.’ After Sarah’s direct trial testimony was completed,
the videotaped CAC interview was admitted into evidence
and played for the jury. There was no cross-examination5

FN3 The Court has assigned pseudonyms to the children
pursuant to Supreme Court Rule 7(d).

Following are the facts from the Preliminary Hearing: During the video Ashley

 

5 Woodlin v. State, 3 A. 3d 1084, 1085 (footnotes omitted).

4

State v. Woodlin
ID No. 0709033390
July 18, 2017

told Klecan that her Daddy’s pee pee touched the in-part of her hookie, not just her
out-part. Testimony elicited from the investigative officer during the preliminary
hearing indicated that the nurse who conducted the S.A.N.E. [Sexual Assault Nurse
Examiner] examination concluded that there may have been sexual penetration of the
victim’s vagina and anus.6
WOODLIN’S CONTENTIONS
In the amended motion, Appointed Counsel raises three grounds for relief:

Ground one: Tii`al Counsel’s failure to request a Bill
of Particulars in order to differentiate
between and properly defend against
the charges undermines the reliability
of the verdict; as such, Mr. Woodlin is
entitled to a new trial.

Ground two: Trial Counsel was ineffective for
failing to introduce the findings of the
SANE report and for failing to consult
an expert witness, instead of waiting
until closing arguments to argue that
there was no physical evidence; as a
result, Mr. Woodlin suffered
constitutional prejudice

Ground three: Trial Counsel’s failure to move for a
judgment of acquittal as a result of the
State’s failure to introduce testimony
regarding when the incidents allegedly

 

6 State v. Woodlin, Del. CCP, Case No. 0709033390 (Oct. 5, 2007) Tr. at p. 7.

5

State v. Woodlin
ID No. 0709033390
July 18, 2017

occurred undermined the reliability of
the outcome; as such Mr. Woodlin is
entitled to a new trial.

DISCUSSION

Under Delaware law, the Court must first determine whether Woodlin has met
the procedural requirements of Superior Court Criminal Rule 6l(i) before it may
consider the merits of the postconviction relief claims.7 Under Rule 6l,
postconviction claims for relief must be brought within one year of the conviction
becoming final.8 Woodlin’ s motion was filed in a timely fashion, thus the bar of Rule
61(i)(l) does not apply to the motion. As this is Woodlin’s initial motion for
postconviction relief, the bar of Rule 6l(i)(2), which prevents consideration of any

claim not previously asserted in a postconviction motion, does not apply either.
Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (l) cause for relief
from the procedural default; and (2) prejudice from a violation of the movant's ri ghts.9
The bars to relief are inapplicable to a jurisdictional challenge or “to a colorable claim
that there was a miscarriage of justice because of a constitutional violation that

undermined the fundamental legality, reliability, integrity or fairness of the

 

7 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
8 super. Cc. Crim. R. 6i(i)(i).

9 Super. Ct. Crim. R. 61(i)(3).

State v. Woodlin
ID No. 0709033390
July 18, 2017

proceedings leading to the judgment of conviction.”10

Each of Woodlin’s grounds for relief are premised on allegations of ineffective
assistance of counsel. Therefore Woodlin has alleged sufficient cause for not having
asserted these grounds for relief at trial and on direct appeal. Woodlin’s ineffective
assistance of counsel claims are not subject to the procedural default rule, in part
because the Delaware Supreme Court will not generally hear such claims for the first
time on direct appeal. F or this reason, many defendants, including Woodlin, allege
ineffective assistance of counsel in order to overcome the procedural default.
“However, this path creates confusion if the defendant does not understand that the
test for ineffective assistance of counsel and the test for cause and prejudice are
distinct, albeit similar, standards.”ll The United States Supreme Court has held that:

[i]f the procedural default is the result of ineffective
assistance of counsel, the Sixth Amendment itself requires
that the responsibility for the default be imputed to the
State, which may not ‘conduc[t] trials at which persons
who face incarceration must defend themselves without
adequate legal assistance;’ [i]neffective assistance of
counsel then is cause for a procedural default.12

A movant who interprets the final sentence of the quoted passage to mean that he can

 

10 Super. Ct. Crim. R. 61(i)(5).
11 State v. Gam`s, 1995 WL 790961 (Del. Super.).

12 Murray v. Carrier, 477 U.S. 478, 488 (1986).

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State v. Woodlin
ID No. 0709033390
July 18, 2017

simply assert ineffectiveness and thereby meet the cause requirement will miss the
mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two part analysis enunciated in Strickland v. Washington13 and
adopted by the Delaware Supreme Court in Albury v. State.14

The Strickland test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness15
Second, under Strickland the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.16 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.17

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established18 However, the showing of prejudice is so central

to this claim that the Strickland court stated "[i]f it is easier to dispose of an

 

,_

3 466 U.S. 668 (1984).

1‘1 551 A.2d 53, 58 (Dei. 1988).

,...

5 Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
16 Id.

17 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State,
1995 WL 466465 at *1 (Del. Supr.)).

18 Srrickland, 466 U.s. ar 687.

State v. Woodlin
ID No. 0709033390
July 18, 2017

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."19 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation were true, the Court may dispose of the claim on this basis
alone.20 Furthermore, Woodlin must rebut a "strong presumption" that trial counsel’s
representation fell within the "wide range of reasonable professional assistance," and
this Court must eliminate from its consideration the "distorting effects of hindsight
when viewing that representation."21

Turning to Woodlin’s first ground for relief, he claims that his counsel was
ineffective for failing to ask for a Bill of Particulars. As Trial Counsel makes clear
in his affidavit he had adequate information from other sources to gain knowledge of
the alleged crimes and did not require a Bill of Particulars. As noted by the State,
Trial Counsel had access to the victim’s interview with CAC. I conclude there was
no error in Trial Counsel’s failure to file a Bill of Particulars. Furthermore, I can
discern no prejudice to Woodlin, This ground for relief is meritless

In his second ground for relief Woodlin argues that Trial Counsel should have

sought the introduction of the S.A.N.E. report. Trial Counsel stated he believed he

did not do so for strategic reasons. As noted earlier, a review of the transcript of the

 

19 Id. at 697.
20 State v. Gattis, 1995 WL 790961 (Del. Super.).

21 Strickland, 466 U.S. at 689; Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

9

State v. Woodlin
ID No. 0709033390
July 18, 2017

preliminary hearing indicates that the nurse who performed the S.A.N.E. examination
found evidence that could suggest both vaginal and anal penetration of the seven
year-old victim. In light of this fact l conclude it was a perfectly reasonable trial

strategy not to introduce the report. There clearly was no prejudice to Woodlin. l

conclude this ground for relief is meritless.

Finally Woodlin claims his attorney was ineffective because he failed to move
for a Judgment of Acquittal because there was no evidence presented as to when the

crimes occurred. A review of the trial transcripts reveals that Trial Counsel did in

fact move for Judgment of Acquittal:

Mr. Funk:

Thank you Your Honor. My first application
would be motion for judgment of acquittal. I
don’t believe the State has met it prima facie
case on several counts here; notably, the rape,
first degree count. I don’t believe the State
has produced enough evidence to allow the
jury to infer guilt or come to the conclusion of
guilt.

Notably there are a couple of issues with what
we’ve heard so far. I would highlight there
seems to be a discrepancy as to when this
exactly happened. I’ve heard no testimony as
to the exact day or time. I’ve heard
discrepancies in location. I don’t believe,
absent that, being able to establish the date
and time and location with specificity, that the
State can carry the burden.

10

State v. Woodlin
ID No. 0709033390
July 18, 2017

The Court:

Ms.

Schmidhauser:

The Court:

I’ve heard some testimony by virtue of the
jury watching the videotape as to a couple of
things, but as far as actual testimony, there
hasn’t been much that I think allows the State
to cross the burden that they have to meet.

Aii right

Your Honor, the standard in the motion for a
judgment of acquittal is looking at the
evidence in the light most favorable to the
State. Is it reasonable to conclude that the
State has met its burden? First, the date and
time are not an element of the offense. As far
as the place, certainly it has been established
through Ashley’s testimony from the CAC
that it occurred at her home; and that was in
Kent County in the State of Delaware.

Through Ashley and the Child Advocacy
Center tape, there’s also sufficient evidence
before the jury that there was sexual
intercourse between herself and her father,
that she is under the age of 16 and that he
stands in a position of trust, authority or
supervision over the child. And, again,
looking at all the evidence in the light most
favorable to the State, the State believes there
is ample evidence for the jury to conclude that
the defendant is guilty of all the charges.

All right. Applying the standard applicable to
1 1

State v. Woodlin
ID No. 0709033390
July 18, 2017

the motion for judgment of acquittal, I’m
satisfied that the motion should be denied.22
Clearly this ground is meritless Counsel did in fact move for judgment of

acquittal.

CONCLUSION
After reviewing the record in this case, it is clear that Woodlin has failed to
avoid the procedural bars of Rule 61(i). A review of his counsel’s affidavit clearly
shows that counsel represented Woodlin in a competent fashion and was not
ineffective. Additionally, Woodlin has failed to demonstrate any concrete
prejudice. Consequently, I recommend that Woodlin’s motion be denied as

procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice,

/Q/ Andrea M Freiid
Commissioner

AMF/dsc

 

22 State v. Woodlin, Del. Super., ID No. 0709033390 (Nov. 13, 2009), Tr. Vol. B, p. 16
- 18.

12

