        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                         :       ID No. 1708017970
                                          :       In and for Kent County
       v.                                 :
                                          :       RK17-08-0085-01
CHRISTOPHER SUDLER,                       :       DDeal + AF (F)
                                          :
             Defendant.                   :

                                       ORDER

                             Submitted: November 1, 2019
                             Decided: November 20, 2019

      On this 20th day of November, after considering Christopher Sudler (“Mr.
Sudler”)’s motion for postconviction relief, the Commissioner’s Report and
Recommendation, and the record in this case, it appears that:
      1. On April 27, 2018, Mr. Sudler pled guilty to one count of Drug Dealing with an
Aggravating Factor, 16 Del. C. § 4753(2). He pled on the day of his scheduled
suppression hearing. He faced the following charges: one count of Possession of a
Firearm During the Commission of a Felony; one count of Possession of Ammunition by
a Person Prohibited; one count of Possession of a Deadly Weapon and Illegal Drug; one
count of Possession of a Firearm by a Person Prohibited; one count of Gang Participation;
one count of Resisting Arrest; one count of Possession of Drug Paraphernalia; and one
count of Possession of Marijuana. The State entered a nolle prosequi on the later charges
in exchange for his plea. As part of the plea agreement, the State also agreed to request
dismissal of Mr. Sudler’s pending violations of probation in Kent and New Castle
Counties.
      2. The parties jointly recommended a sentence of fifteen years incarceration,
suspended after six years, followed by probation. The Court agreed and sentenced Mr.
Sudler accordingly.
        3. Mr. Sudler did not appeal his conviction or sentence to the Delaware Supreme
Court. Instead, his counsel filed a motion for correction of sentence on May 14, 2018.
The Court granted the motion on June 11, 2018. In doing so, it provided him the credit
time he was due.
        4. Mr. Sudler then filed a pro se motion for a reduction of sentence on January 31,
2019. The Court denied it as untimely. On March 6, 2019, Mr. Sudler next filed the
pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
He alleged, in part, ineffective assistance of counsel. He also alleged that his plea was not
knowing and voluntary.
        5. After considering the parties’ positions and the record, the Commissioner
denied Mr. Sudler’s motion. Mr. Sudler did not file exceptions to her Report and
Recommendation.
        NOW, THEREFORE, after a de novo review of the record in this matter, and for
the reasons stated in the Commissioner’s Report and Recommendation dated October 18,
2019;
        IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is adopted in its entirety. Accordingly, Mr.
Sudler’s motion for postconviction relief pursuant to Superior Court Criminal Rule 61 is
DENIED.
                                                              /s/Jeffrey J Clark




                                             2
Exhibit A




    3
        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                      )       ID No. 1708017970
                                       )       In and for Kent County
      v.                               )
                                       )       RK17-08-0085-01
CHRISTOPHER SUDLER,                    )       DDeal + AF (F)
                                       )
            Defendant.                 )


           COMMISSIONER'S REPORT AND RECOMMENDATION

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




Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State of
Delaware.

Christopher Sudler, Pro se.


FREUD, Commissioner
October 18, 2019

      The defendant, Christopher Sudler (“Sudler”), pled guilty on April 27, 2018 on the
day his matter was set for a suppression hearing and trial to one count of Drug Dealing
with an Aggravating Factor, 16 Del. C. § 4753(2). He also faced one count of Possession
of a Firearm During the Commission of a Felony, one count of Possession of Ammunition
by a Person Prohibited, one count of Possession of a Deadly Weapon and Illegal Drug,
one count of Possession of a Firearm by a Person Prohibited, one count of Gang


                                           4
Participation, one count of Resisting Arrest, one count of Possession of Drug
Paraphernalia and one count of Possession of Marijuana which were nolle prossed by the
State in exchange for Sudler’s plea. As part of the plea deal the State agreed to drop all
of Sudler’s pending Violation of Probation allegations in Kent and/or New Castle County.
The State and Defense recommended a sentence of fifteen years incarceration, suspended
after serving six years, followed by probation. The Court agreed with the sentence
recommendation and sentenced Sudler accordingly. Had Sudler gone to trial and been
found guilty as charged he faced substantial time in prison. Sudler did not appeal his
conviction or sentence to the State Supreme Court. Instead, Sudler’s counsel filed a
Motion for Correction of Sentence on May 14, 2018 which this Court granted on June 11,
2018 and reset the effective date of the sentence.1 Next, Sudler filed a pro se Motion for
Reduction of Sentence on January 31, 2019 which the Court denied as untimely on
February 7, 2019.2 Sudler then filed the pending Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61 on March 6, 2019, in which he alleges, in
part, ineffective assistance of counsel.
                                              FACTS
      According to the Affidavit of Probable Cause and the transcript of the Preliminary
Hearing, the police suspected Sudler of drug dealing and accordingly set up surveillance
of the Hardees parking lot, 519 S. Bay Road, Dover, Delaware awaiting Sudler’s arrival.
The police then attempted to apprehend Sudler and he resisted arrest forcibly and had to
ultimately be pulled from his vehicle. A loaded hand gun and various amounts of drugs
packaged for sale were located in the vehicle. Sudler was the sole occupant of the car.
After his arrest Defense Counsel filed a Motion to Suppress evidence which was
scheduled on the morning of Sudler’s trial. The motion did not go forward as Sudler
        1
            State v. Sudler, Del. Super., I.D. No. 1708017970, Clark, J. (June 11, 2018) )(ORDER).
        2
            State v. Sudler, Del. Super., I.D. No. 1708017970, Clark, J. (Feb. 7, 2019) )(ORDER).

                                                 5
chose to plead guilty to one count of Drug Dealing in exchange for the State dropping the
remaining charges and the linked violation of probation allegations. Sudler was also
facing substantial time in prison had he been found guilty of violating his probation as a
result of the new charges.
                             SUDLER’S CONTENTIONS
      Next, Sudler filed the instant Motion for Postconviction Relief pursuant to Superior
Court Rule 61. In his motion, he raises the following grounds for relief:
             Ground one:         Illegal Search and Seizure.
                                 The Dover Police and State police had an
                                 anonymous tip that the Defendants brother
                                 Anthony Sudler was going to respond to Hardees
                                 restaurant to deliver a quantity of heroin. When
                                 police approached the Hardees parking lot it is
                                 alleged that the defendant put his vehicle in
                                 reverse to exit parking lot. There is no dashboard
                                 cam footage to corroborate any of the officers
                                 actions. There was no probable cause to warrant
                                 this illegal stop, detention, or seizure. The
                                 officers arrested Mr. Sudler without probable
                                 cause nor did they have reasonable suspicion that
                                 the defendant was armed and dangerous. That the
                                 defendant had committed, was committing, or
                                 was about to commit a crime. An anonymous tip
                                 or information is not a factual foundation that
                                 warrants probable cause.

             Ground two:         Suppression of Favorable Evidence.
                                 My lawyer said suppression hearing is good for
                                 us because they were looking for my brother
                                 Anthony Sudler, didn’t have probable cause to
                                 arrest me. I did nothing wrong by sitting in the
                                 Hardees parking lot. I never sold a drug to
                                 anyone. There was never an exchange or an
                                 agreed upon prize (sic). I was suppose (sic) to
                                 meet up with two girls to have sex with. I was

                                            6
                                       only out past curfew because I just got off of
                                       work and if that’s the case I did most of my back-
                                       up time already. I been incarcerated for 19
                                       months.

                Ground three:          Effective assistance of counsel.
                                       My lawyer kept telling me different things, first
                                       told me that 18 months was on the table. I said I
                                       would take it he told me no because we could get
                                       time served or win suppression hearing. Then he
                                       said 3 years but said we weren’t taking it, he’s
                                       going for time served. My court dates got
                                       postponed multiple times at least 7. He was not
                                       communicating with me and the last court date he
                                       said 6 years and said if I didn’t take it the
                                       prosecutor would go up to 10 years. He never
                                       worked for me to get the best possible Plea. It’s
                                       my first time doing time so I was scared.

The grounds listed above represent all of Sudler’s claims. He did not submit a
memorandum in support of the motion.
                                            DISCUSSION

      Under Delaware law, the Court must first determine whether Sudler has met the
procedural requirements of Superior Court Criminal Rule 61(I) before it may consider the
merits of the postconviction relief claims.3 Under Rule 61, postconviction claims for relief
must be brought within one year of the conviction becoming final.4 Sudler’s motion was
filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As
this is Sudler’s initial motion for postconviction relief, the bar of Rule 61(i)(2), which
prevents consideration of any claim not previously asserted in a postconviction motion,
does not apply either.
        3
            Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
        4
            Super. Ct. Crim. R. 61(i)(1).

                                                 7
      Grounds for relief not asserted in the proceedings leading to judgment of conviction
are thereafter barred unless the movant demonstrates: (1) cause for relief from the
procedural default; and (2) prejudice from a violation of the movant's rights.5 The bars
to relief are inapplicable to a jurisdictional challenge or “to a claim that satisfies the
pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of Rule 61.6 To
meet the requirements of Rule 61(d)(2) a defendant must plead with particularity that new
evidence exists that creates a strong inference that the movant
is actually innocent in fact of the acts underlying the charges of which he was convicted7
or that he pleads with particularity a claim that a new rule of constitutional law, made
retroactive to cases on collateral review by the United State or Delaware Supreme courts,
applies to the defendant’s case rendering the conviction invalid.8 Sudler’s motion pleads
neither requirement of Rule 61(d)(2).
      None of Sudler’s claims were raised at the plea, sentencing or on direct appeal.
Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause for the
default and prejudice. Only Sudler’s third claim is based on ineffective assistance of
counsel; therefore, he has alleged cause for his failure to have raised it earlier. Sudler’s
first and second claims which are essentially the same allegation regard suppression of
evidence were not raised on appeal. Furthermore, Sudler specifically acknowledged
during his plea that he was waiving his rights to contest the evidence against him.9 Finally
as the State noted in its response, Sudler was on probation at the time of his arrest and
was found out after his curfew and identified by his probation officer, For these reasons
        5
            Super. Ct. Crim. R. 61(i)(3).
        6
            Super. Ct. Crim. R. 61(i)(5).
        7
            Super. Ct. Crim. R. 61(d)(2)(i).
        8
            Super. Ct. Crim. R. 61(d)(2)(ii).
        9
            State v. Sudler, Del. Super., I.D. No. 1708017970, (April 27, 2018), Tr. at 3, 5-7.

                                                   8
alone there was a legitimate reason to have attempted to arrest Sudler. Clearly, Sudler’s
first and second grounds for relief are procedurally barred by Rule 61(i)(3) and are
meritless.
       At this point, Rule 61(i)(3) does not bar relief as to Sudler’s third ground for relief
provided he demonstrates that his counsel was ineffective and that he was prejudiced by
counsel’s actions. To prevail on his claim of ineffective assistance of counsel, Sudler
must meet the two-prong test of Strickland v. Washington.10 In the context of a guilty
plea challenge, Strickland requires a defendant show: (1) that counsel's representation fell
below an objective standard of reasonableness; and (2) that counsel's actions were
prejudicial to him in that there is a reasonable probability that, but for counsel's error, he
would not have pled guilty and would have insisted on going to trial and that the result of
a trial would have been his acquittal.11 The failure to establish that a defendant would not
have pled guilty and would have proceeded to trial is sufficient cause for denial of relief.12
In addition, Delaware courts have consistently held that in setting forth a claim of
ineffective assistance of counsel, a defendant must make concrete allegations of actual
prejudice and substantiate them or risk summary dismissal.13 When examining the
representation of counsel pursuant to the first prong of the Strickland test, there is a strong
presumption that counsel's conduct was professionally reasonable.14 This standard is



        10
             466 U.S. 668 (1984).
        11
             Id. at 687.
        12
           Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
 60 (Del. 1988))(citations omitted).
        13
        See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
 WL 466465 at *1 (Del. Supr.)).
        14
             Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

                                                   9
highly demanding.15 Strickland mandates that, when viewing counsel's representation, this
Court must endeavor to “eliminate the distorting effects of hindsight.”16
      Following a complete review of the record in this matter, it is abundantly clear that
Sudler has failed to allege any facts sufficient to substantiate his claim that his attorney
was ineffective. I find trial counsel’s affidavit, in conjunction with the record, more
credible that Sudler’s self-serving claims that his counsel’s representation was ineffective.
Sudler’s counsel denies the allegations.
      Sudler was facing the possibility of substantial time in prison had he been convicted
on the charges and subsequently convicted for violating his probation as well. The
sentence and plea were very reasonable under all the circumstances, especially in light of
the overwhelming evidence against him. Prior to the entry of the plea, Sudler and his
attorney discussed the case. The plea bargain was clearly advantageous to Sudler.
Counsel’s representation was certainly well within the range required by Strickland.
Additionally, when Sudler entered his guilty plea, he stated he was satisfied with defense
counsel’s performance. He also admitted his guilt twice.17He is bound by his statement
unless he presents clear and convincing evidence to the contrary.18 Consequently, Sudler
has failed to establish that his counsel’s representation was ineffective under the
Strickland test.
      Even assuming, arguendo, that counsel’s representation of Sudler was somehow
deficient, Sudler must satisfy the second prong of the Strickland test, prejudice. In
setting forth a claim of ineffective assistance of counsel, a defendant must make concrete
        15
           Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
 U.S. 365, 383 (1986)).
        16
             Strickland, 466 U.S. at 689.
        17
             State v. Sudler, Del. Super., I.D. No. 1708017970, (April 27, 2018), Tr. at 6, 8.
        18
          Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931,
 937-938 (Del. 1994)).

                                                  10
allegations of actual prejudice and substantiate them or risk dismissal.19 In an attempt to
show prejudice, Sudler simply asserts that his counsel was ineffective. His statements are
insufficient to establish prejudice, particularly in light of the evidence against him.
Therefore, I find Sudler’s third ground for relief meritless.
      To the extent that Sudler alleges his plea was involuntary, the record contradicts
such an allegation. When addressing the question of whether a plea was constitutionally
knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of
constitutional rights was knowing and voluntary.20 At the guilty-plea hearing, the Court
asked Sudler whether he understood the nature of the charges, the consequences of his
pleading guilty, and whether he was voluntarily pleading guilty. The Court asked Sudler
if he understood he would waive his constitutional rights if he pled guilty including the
right to suppress evidence; if he understood each of the constitutional rights listed on the
Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and whether he gave truthful
answers to all the questions on the form. The Court asked Sudler if he had discussed the
guilty plea and its consequences fully with his attorney. The Court asked Sudler if he was
entering into the plea because he was guilty of the charge. The Court also asked Sudler
if he was satisfied with this counsel’s representation. Sudler answered each of these
questions affirmatively.21
      Furthermore, prior to entering his guilty plea, Sudler signed a Guilty Plea Form and
Plea Agreement in his own handwriting. Sudler’s signatures on the forms indicate that he
understood the constitutional rights he was relinquishing by pleading guilty and that he
freely and voluntarily decided to plead guilty to the charges listed in the Plea Agreement.

        19
           Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556
 (Del. 1990)).
        20
             Godinez v. Moran, 509 U.S. 389, 400 (1993).
        21
             State v. Sudler, Del. Super., ID No. 1708017970 (April 27, 2019) Tr. at 4-11.

                                                 11
Sudler is bound by the statements he made on the signed Guilty Plea Form, unless he
proves otherwise by clear and convincing evidence.22 I confidently find that Sudler
entered his guilty plea knowingly and voluntarily and that Sudler’s grounds for relief are
completely meritless.
                                        CONCLUSION
      I find that Sudler’s counsel represented him in a competent and effective manner
and that Sudler has failed to demonstrate any prejudice stemming from the representation.
I also find that Sudler’s guilty plea was entered knowingly and voluntarily. I recommend
that the Court deny Sudler’s motion for postconviction relief as procedurally barred and
completely meritless pursuant to Superior Court Criminal Rule 61(i)(3) and (4).




                                            Andrea M. Freud
                                            Commissioner

AMF/dsc




        22
             Sommerville 703 A.2d at 632.

                                               12
