IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE
v. I.D. No. 1611008050

MAURICE BACKUS,

Defendant.

Nee Nee Nee ree eee” Nee Nee”

Submitted: February 11, 2020
Decided: April 23, 2020

Upon Defendant’s Motion for Postconviction and Amended Motion for
Postconviction Relief,

DENIED.

Upon Postconviction Relief Counsel’s Motion to Withdraw,
GRANTED.

ORDER

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

Patrick J. Collins, Esquire, Collins & Associates, 716 North Tatnall Street, Suite
300, Wilmington, DE 19801, Attorney for Defendant Maurice Backus.

WHARTON, J.
This 2"! day of April, 2020, upon consideration of Defendant Maurice
Backus’ (“Backus”) timely pro se Motion for Postconviction Relief (““MPCR”)! and
amended pro se Motion for Postconviction Relief (“AMPCR”),? appointed
postconviction counsel’s Motion to Withdraw as Counsel,’ Backus’ response to the
Motion to Withdraw,* Backus’ Memorandum of Law in support of his AMPCR,” the
State’s Response to Defendant’s Motion for Postconviction Relief,° Backus’ Reply
to the State’s Response,’ and the record in this matter, it appears to the Court that:

1. On October 3, 2017, Backus was found guilty of Tier 4 Drug Dealing
and Aggravated Possession of Cocaine after a bench trial upon stipulated facts.®
Trial followed the denial of his suppression motion on August 14, 2017. He was
sentenced to 25 years at Level 5, suspended after 5 years for probation on the Drug
Dealing charge, into which the Aggravated Possession charge merged.!° On January

23, 2019, the Delaware Supreme Court affirmed Backus’ conviction and sentence. |!

 

' DT. 43.
? DI. 49.
3D. 56.
*D.T. 58.
‘DIL. 63.
6D.I. 67.
7D.I. 68.
sD.1. 28.
°D.I. 19.
wD 32.
" Backus v. State, 2019 WL 327963 (Del. 2019).
2
2. Backus filed his timely first MPCR pursuant to Superior Court Criminal
Rule 61 pro se on April 4, 2019.'* Backus also moved for appointment of counsel."
The Court granted Backus’ request for counsel on April 10, 2019.'4 On May 14,
2019, Backus filed his AMPCR.'° On August 23, 2019, appointed postconviction
relief counsel Patrick J. Collins, Esquire, moved to withdraw as counsel after he
reviewed the record and the applicable law, and concluded that Backus’
postconviction claims were wholly without merit and that no other substantial
grounds for relief were available to him.'® Backus filed his Response to Counsel’s
Motion to Withdraw on September 16, 2019.'’ Prior to the State submitting a
response to the motion to withdraw, Backus file a Memorandum of Law in Support
of his AMPCR on December 5, 2019.'® The State submitted its response on January
30, 2020." Backus submitted a pro se reply on February 11, 2020.7°

J In his MPCR, Backus presses two claims of ineffective assistance of
counsel (“IAC”) against his trial counsel and two against his appellate counsel.”!

First, he alleges trial counsel was ineffective in failing to adequately prepare for the

 

2D. 43.
3 DT. 44,
4D. 47,
SDT. 49,
6D. 56.
"DL 58,
8 DLT. 63.
"DI. 67.
DI. 68.
12),I. 43.
suppression hearing by failing to meet with him. Had she met with him, Backus
maintains she would have been aware of “the inconsistent testimony concerning
officers [sic] safety that impacted the suppression hearing judge [sic] decision.”
Second, he alleges trial counsel failed “to object in the middle of the suppression
hearing to the misleading accusation of cocaine sticking out of his hooded pocket.”
Third, he alleges that appellate counsel failed to communicate with him and
inadequately prepared his direct appeal with respect to issues involving the plain
view doctrine”** Finally, he alleges that appellate counsel was ineffective in failing
to move for reargument.”> In his AMPCR, Backus adds a claim that his trial counsel
was ineffective at various points of the case — the preliminary hearing, the grand jury
indictment and the suppression hearing — by failing to challenge the purported
probable cause for the stop, a Title 21 cell phone violation, and filing a frivolous

suppression motion.”°

4. PCR counsel addresses all of Backus’ claims in his motion to
withdraw.?’” PCR counsel characterizes Backus’ claims as attempts to re-litigate

matters already litigated in the Superior Court and Delaware Supreme Court under

 

2 Id.
3 Id.
4 Td.
5 Id.
* DI. 49.
7—.1. 56.
the guise of ineffective assistance of counsel.”* PCR counsel feels that the MPCR
and AMPCR fail due to Backus’ inability to establish prejudice under Strickland.”?
In response, Backus re-iterates at greater length the allegations in his MPCR and
AMPCR and disputes PCR counsel’s evaluation of those claims.*° For its part, the
State argues that Backus has failed to meet either the performance prong or the
prejudice prong of Strickland in all of his allegations.*! In reply, Backus challenges
at length PCR counsel’s assessment of the merits of his MPCR and AMPCR, and
for the same reasons argued in his motions, argues that he has demonstrated both
prejudice and performance deficiencies by counsel.*?

5. 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).° Ifa procedural bar exists, then the Court will not consider the merits of the
postconviction claim.*4 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 is filed more than one year after the conviction becomes final

or if it asserts a newly recognized, retroactively applied right more than one year

 

2 Td.

29 Td.

oD. I. 58.

1D. 67.

2D. 68.

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

4 Td.
5
after it was first recognized.*> A second or subsequent motion is repetitive and
therefore barred.*° The Court considers a repetitive motion only if the movant was
convicted at trial and the motion pleads with particularity either: (1) actual
innocence;*’ or (2) the application of a newly recognized, retroactively applied rule
of constitutional law rendering the conviction invalid® 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.*”

6. Together, the MPCR and AMPCR constitute a timely first motion for
postconviction relief, alleging IAC. Accordingly, the Court will consider the motion
on its merits. To succeed on an IAC claim, a claimant must demonstrate: (1) that
counsel’s performance was deficient; and (2) that the deficiencies prejudiced the
claimant by depriving him or her of a fair trial with reliable results.4' To prove

counsel’s deficiency, a defendant must show that counsel’s representation fell below

 

35 Super. Ct. Crim. R. 61(i)(1).
36 Super. Ct. Crim. R. 61(i)(2).
7 Super. Ct. Crim. R. 61(d)(2)(i).
38 Super. Ct. Crim. R. 61(d)(2)(ii).
39 Super. Ct. Crim. R. 61(1)(3).
4 Super. Ct. Crim. R. 61(i)(4).

“| Strickland v. Washington, 466 U.S. 668, 688 (1984).
6
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 counsel’s conduct
falls within the wide range of reasonable professional assistance.”“* A successful
Sixth Amendment claim of IAC 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.”*° An inmate must satisfy the proof requirements of both
prongs to succeed on an IAC of counsel claim. Failure to do so on either prong will
doom the claim and the Court need not address the other.*° Here, Backus cannot
demonstrate that the performance of either trial counsel or appellate counsel was
deficient on any of the issues that he raises, or that he was prejudiced.

7. The Court turns first to the claims Backus raises in his MPCR about his
trial counsel. The first of those claims is that trial counsel ineffectively litigated the
suppression motion due to her failure to prepare for, and address at the hearing,
“inconsistent testimony.” Backus claims that the officer’s testimony at the
preliminary hearing and suppression hearing differed with respect to who provided

the officer with Backus’ registration and proof of insurance and where those items

 

Td, at 667-68.

“8 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).

“4 Strickland, 446 U.S. at 689.

5 Id. at 694.

4 Strickland, 466 U.S. at 697; Ploofv. 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
were located. He further claims that had trial counsel effectively exploited that
inconsistency, the result of the suppression hearing would have been different. The
second claim of ineffectiveness alleged against trial counsel is that she failed to
effectively challenge the officer’s testimony that he observed the cocaine in Backus’
possession in plain view. The Court has carefully reviewed the transcripts of
Backus’ preliminary hearing and the suppression hearing. Backus clearly overstates
the significance of any “inconsistent testimony” concerning where and from whom
the registration and proof of insurance were produced. As the State points out, the
issues in the motion to suppress were the validity of the stop and whether the stop
was improperly extended. Moreover, the Court heard testimony from Backus’
passenger about the production of the registration and proof of insurance, presenting
the Court with differing versions. Nevertheless, the Court did not find that
discrepancy particularly significant in rendering her decision. What she did find
relevant was that Backus “bladed” (or turned) his body, a point Backus implicitly
concedes.*” He simply presents a different explanation for why he turned. The
“inconsistent testimony” was irrelevant to the Court’s suppression determination,
and further exploration of that inconsistency would not have changed the outcome

of the hearing.

 

47“Mr, Backus immediately reached toward the center console to retrieve his

registration and insurance card.” Reply to State’s Response at 1, D.I. 68.
= 8
8. Whether the cocaine was in plain view, as the officer testified, or not,
was a fact question. Trial counsel did cross-examine the arresting officer about his
ability to observe the clear bag containing the cocaine inside the black bag hanging
out of his sweatshirt pocket.** The defense offered no contrary evidence on this
point in the form of testimony from Backus or his passenger. If the clear plastic bag
holding the cocaine was protruding outside the black bag in which it was contained,
and both were visible to the officer, as he testified, the cocaine was in plain view.
The trial court expressly found that the officer “observed, in plain view, hanging out
of the jacket the defendant was wearing what appeared to be a bag of cocaine.”
The testimony of the officer was not objectionable, despite Backus’ contention, and
in the absence of contrary evidence, trial counsel had no basis to contest a plain view
seizure.

9. The Court now turns to the two additional issues brought in the AMPCR.
First, Backus alleges that his trial counsel was ineffective in failing to challenge the
probable cause for the stop of his vehicle — an allegation that he was using his cell
phone while driving - at his preliminary hearing, in the indictment returned by the
Grand Jury, and in the suppression motion she filed. With respect to the preliminary

hearing and the indictment, Backus’ complaints are frivolous. A preliminary hearing

in the Court of Common Pleas is not the proper venue to raise suppression issues.

 

Tr, Aug. 14, 2017 at 27, 28.
49 Id. at 58.
Furthermore, even tf trial counsel had successfully litigated the probable cause issue
at the preliminary hearing, that victory would have been short-lived, since the Grand
Jury returned an indictment against Backus, including a count alleging the cell phone
violation.°° Similarly, whether Backus received a citation or warning for the traffic
violation is immaterial. As to the charge in the indictment, there was no vehicle
available to counsel for “challenging the Grand Jury indictment for so-called
indicting Mr. Backus on Count III of his indictment” short of trial. Lastly, it is clear
that a Title 21 violation is sufficient grounds for stopping a defendant, and the record
supports the fact that Backus committed a Title 21 violation.°! Trial counsel was not
ineffective at the suppression hearing for failing to challenge the probable cause for
stopping Backus because there was no factual basis for such a challenge.

10. The second issue Backus raises in his AMPCR is that trial counsel was
ineffective in focusing on the validity of the stop and its extension, rather than
challenging the application of the plain view doctrine.** He terms issues raised in
the motion to suppress trial counsel filed as “frivolous.”>* The Court perceives an
inconsistency in Backus claiming that a challenge to the basis of the stop was
“frivolous” on the one hand and arguing that trial counsel’s failure to challenge the

basis of the stop at the suppression hearing amounted to ineffective assistance of

 

50 Indictment, Count III, Driving a Motor Vehicle While Using an Electronic
Communication Device, in violation of 21 Del. C. § 4176C, D.I. 20.

Tr, Aug. 14, 2017, at 5.

2D J. **

3 Id.
10
counsel on the other. In any event the Court has reviewed the suppression motion™
and determines that the issues it raised certainly were not frivolous and were issues
that a reasonably effective defense attorney legitimately could raise. The Court also
rejects Backus’ plain view argument for the same reasons is set out above. In sum,
it is clear to the Court that the reason the cocaine in Backus’ possession was not
suppressed was not due to any failing on trial counsel’s part, but rather, to the fact
that the cocaine was constitutionally seized.

Il. Backus also challenges the effectiveness of his representation on appeal.
First he claims appellate counsel was ineffective for failing to meet with him and for
failing to challenge the applicability of the plain view doctrine as Backus requested
him to do.°°> Second, he alleges appellate counsel was ineffective in failing to move
for reargument. Both of these claims are without merit. In the appellate context,
“t]he [djefendant must first show that his counsel was objectively unreasonable in
failing to find arguable issues on appeal — that is, that counsel unreasonably failed
to discover nonfrivilous issues and to file a merits brief raising them.”°° Appellate
counsel “need not (and should not) raise every nonfrivilous claim, but rather may
9957

select from among them in order to maximize the likelihood of success on appeal.

Nonetheless, it is “still possible to bring a Strickland claim based on counsel’s failure

 

“DI. 9.

5D.I. 43.

% Neal v. State, 80 A.3d 935, 946 (Del. 2013) (quoting Smith v. Robbins, 528 U.S.
259, 285 (2000)).

57 Id. (citing Smith, 528 U.S. at 288).
11
to raise a particular claim, but it is difficult to demonstrate that counsel was
incompetent.”°* A defendant faces a tougher burden of “showing that a particular
nonfrivilous issue was clearly stronger than issues that counsel did present” where
appellate counsel filed a merits brief, than in the case where appellate counsel filed
a no merit brief.’ Further, Backus must still show prejudice, “That is, [the
defendant] must show a reasonable probability that, but for his counsel’s
unreasonable failure [to raise a clearly stronger issue], he would have prevailed on
his appeal.”°° Backus cannot demonstrate either that counsel’s performance was
deficient in that the issue that was not presented was “clearly stronger” than the
argument actually presented on appeal, or prejudice.

12. Here, appellate counsel filed a merits brief challenging this Court’s
denial of his motion to suppress.°! Backus would have had appellate counsel contest
the trial court’s determination that the cocaine was in plain view. As the Delaware
Supreme noted in affirming the trial court, “[W]hen a trial judge’s finding is based
on ... a coherent and facially plausible story that is not contradicted by extrinsic
evidence, that finding, if not internally inconsistent, can virtually never be clear

9962

error. Just such a circumstance obtained here. Challenging the trial court’s

 

38 Id.

39 Id.

0 Id. at 947 (quoting Smith, 528 U.S. 285).

‘ Backus v. State at *1.

@ Id. at *2 (quoting Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 492 (Del.

2000) (citing Anderson v. City of Bessimer City, N.C., 470 U.S. 564, 575 (1985)).
12
application of the plain view doctrine would have been a fool’s errand. Similarly,
moving for reargument of the unanimous panel’s decision would have been
pointless. As with the suppression hearing, Backus’ conviction was affirmed, not
because of Backus’ appellate counsel’s failings, but because there were no
meritorious issues on which to base an appeal.

14. Accordingly, the Court finds that there was no performance deficiency
on the part of either Backus’ trial counsel or his appellate counsel. Further, the Court
finds that Backus suffered no prejudice as a result of counsel’ performance.

THEREFORE, the Backus’ Motion for Postconviction Relief and Amended
Motion for Postconviction Relief are DENIED.

Postconviction relief counsel’s Motion to Withdraw as Counsel is

GRANTED.
IT IS SO ORDERED.

/
but

Ferris W. Wharton, J.

13
