IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE
I.D. No. 1004000821

Vv.

BRANDEN WALLACE,

Nee Nee Nee ee ee” ee ee”

Defendant.

Submitted: April 12, 2019
Decided: June 13, 2019

Upon Defendant’s Motion for Postconviction Relief
SUMMARILY DISMISSED

ORDER

Upon consideration of the Motion for Postconviction Relief filed by
Defendant Branden Wallace (“Defendant”); Rule 61 of the Superior Court Criminal
Rules of Procedure (“Rule 61”); the facts, arguments, and legal authorities set forth
by Defendant; statutory and decisional law; and the entire record in this case, the
Court hereby finds as follows:

1. Defendant was on probation when Probation & Parole conducted an
administrative search that resulted in new charges as well as allegations of violation
of probation. Defendant was detained on July 23, 2010.

2. Defendant was sentenced for a violation of probation in Case No.
0907027836 by Order dated September 22, 2010, effective July 23, 2010, to 2 years

at Level V in connection with drugs and drug paraphernalia located during the
administrative search. The finding of violation of probation and sentence imposed
were affirmed by the Delaware Supreme Court.!

3. The drugs and drug paraphernalia located during the administrative
search also resulted in new charges in Case No. 100400082. Defendant agreed to a
stipulated non-jury trial on three of the new charges* — Trafficking, PWID, and
PFBPP — in exchange for the State’s promise to not seek habitual status and to
recommend a sentence of not more than 14 years, which was represented to
Defendant to be the required minimum mandatary period of incarceration.? The
stipulated non-jury trial was held on March 8, 2011, and the Court found Defendant
guilty of all three charges. On June 10, 2011, the Court sentenced Defendant to 16
years at Level V followed by decreasing levels of supervision.* The Supreme Court
affirmed the Superior Court’s decision on remand on December 31, 2012.°

4. Defendant filed his first ttmely motion for postconviction relief on June

10, 2013 (“First PCR Motion”) asserting claims of ineffective assistance of counsel

 

' Wallace v. State, 2011 WL 4478033 (Del. Sept. 27, 2011).

* The State entered a nolle prosequi on the remaining charges.

> The State mistakenly represented that the minimum mandatory sentence for the
three charges was 14 years when it was actually 16 years. This mistake was not
brought to Defendant’s attention until sentencing.

4 The minimum mandatory for the Trafficking charge was eight (8) years at Level
V. Due to Defendant’s prior convictions, the minimum mandatory for the PWID
charge was three (3) years and the minimum mandatory for the PFBPP charge was
five (5) years.

> Wallace v. State, 62 A.3d 1192 (Del. 2012).

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related to (1) Trial Counsel’s advice to Defendant regarding the plea offers and (2)
Trial Counsel’s alleged failure to seek merger of the Trafficking and PWID
sentences. Defendant was appointed counsel (“Postconviction Counsel”). By Order
dated September 27, 2017, the Court denied Defendant’s First PCR Motion,
concluding that assistance of counsel did not fall below an objective standard of
reasonableness and that Defendant could not demonstrate prejudice. The Delaware
Supreme Court affirmed the denial of postconviction relief on April 11, 2018.°

De On April 12, 2019, Defendant filed a second motion for postconviction
relief as a self-represented litigant (“Second PCR Motion”).’ Defendant’s asserted
grounds for postconviction relief consist entirely of allegations of ineffective
assistance of postconviction counsel. Specifically, Defendant alleges that
Postconviction Counsel was ineffective for failure to raise additional claims of
ineffective assistance of trial and appellate counsel in Defendant’s First PCR
Motion.

6. Postconviction relief is a “collateral remedy which provides an avenue

for upsetting judgments that have otherwise become final.”®

 

° Wallace v. State, 2018 WL 1768652 (Del. Apr. 11, 2018).

7 Accordingly, the April 6, 2017 version of Rule 61 applies. See Washington v. State,
2014 WL 4243590, at *2 (Del. Aug. 26, 2014) (applying the version of Rule 61 in
effect when defendant originally filed his postconviction motion).

8 Flamer v. State, 585 A.2d 736, 745 (Del. 1990).

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7. Before addressing the merits for postconviction relief, this Court must
first consider the procedural requirements of Rule 61(i).? A motion is procedurally
sufficient for consideration on the merits if it is the defendant’s first motion,'° the
motion is timely,'! and the motion does not assert grounds for relief already
adjudicated. '?

8. Under Rule 61(d)(2), the Court shall summarily dismiss a second or
subsequent motion for postconviction relief unless the movant was convicted after a
trial and the motion pleads with particularity either that (1) 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 convicted; or (ii) a new rule of constitutional
law, made retroactive to cases on collateral review by the United States Supreme
Court or the Delaware Supreme Court, applies to the movant’s case and renders the
conviction invalid.!? A second motion for postconviction relief is still subject to the
successive motions procedural bar even if it raises the ineffectiveness of

postconviction counsel.'4

 

° Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

'0 Super. Ct. Crim. R. 61(i)(2).

"| Super. Ct. Crim. R. 61(i)(1).

!2 Super. Ct. Crim. R. 61(i)(4).

13 Super. Ct. Crim. R. 61(d)(2)()-(ai); Super. Ct. Crim. R. 61(4)(2)(i).

'4 Holmes v. State, 2018 WL 637312, at *1 (Del. Jan. 30, 2018). See also Durham
v. State, 2017 WL 5450746, at *2 (Del. Nov. 13, 2017) (affirming the summary
dismissal of a second postconviction motion which consisted entirely of claims of

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9. Defendant must satisfy the requirements of Rule 61(d)(2) to avoid
summary dismissal of his Second PCR Motion, even if he did not have a previous
opportunity to raise ineffective assistance of postconviction counsel claims.

10. Defendant fails to plead with particularity that new evidence exists that
creates a strong inference that Defendant is actually innocent or that a new rule of
constitutional law retroactively invalidates Defendant’s convictions. Accordingly,
because Defendant cannot meet the pleading requirements of Rule 61(d)(2), his
Second PCR Motion must be summarily dismissed.

11. The Court is satisfied that the interest of justice does not require further
review.

NOW, THEREFORE, this 13th day of June, 2019, Defendant’s Second

Motion for Postconviction Relief is hereby SUMMARILY DISMISSED.

IT IS SO ORDERED.
QC &
The Honorable Andrea L. Rocanelli

cc: Criminal Prothonotary
Branden Wallace (SBI #371555)

 

 

ineffective assistance of postconviction counsel because the motion failed to satisfy
the requirements of Rule 61(d)(2)).
