IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID. No. 1503013906
' In and for Kent County
V.
: RK15-04-0355-01 Burglary 2nd (F)
THOMAS L. FLEETWOOD, : RK15-04-0356-01 ATT Theft < 15 (M)
' RK15-04-0357-01 OFF Touching (M)
Defendant.

ORDER

Submitted: January 2, 2018
Decided: January 17, 2018

On this 17th day of January, 2018, upon consideration of Thomas Fleetwood’s
(“Fleetwood’s”) Motion for Postconviction Relief`, the Commissioner’s Report and
Recommendation, and the record in this case, it appears that:

l. The defendant Was found guilty on November 18, 2015 by a jury of one count
of Burglary in the Second Degree, 11 Del. C. § 825; one count of Attempted Theft as a
lesser included offense of Felony Attempted Thefc, 11 Del. C. § 531; and one count of
Offensive Touching as a lesser included offense of Assault in the Third Degree, 11 Del.
C. § 601. Fleetwood Was found not guilty of Criminal Mischief.

2. The Court ordered an Investigative Services Office report for sentencing
purposes. On January 21, 2016, the State filed a motion to declare FleetWood an habitual
offender pursuant to ll Del. C. § 4214(a). Thereafcer, the Court granted the State’s
motion and declared Fleetwood an habitual offender. On February 9, 2015, the Court
sentenced Fleetwood to a total of ten years and thirty days incarceration, suspended for
probation after serving an eight years minimum mandatory sentence.

3. The defendant filed a timely appeal to the DelaWare Supreme Court. The
Supreme Court then remanded the sentence order because of an error in Sentencing

Fleetwood on the Crirninal Mischief charge. However, the Supreme Court affirmed

Fleetwood’ s other convictionsl

4. Fleetwood then filed a pro se Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61 . His corresponding motion for Appointment of Counsel
Was denied. In his Rule 61 motion, Fleetvvood raised three grounds for relief, in part,
alleging ineffective assistance of counsel. The Commissioner issued her Report and
Recommendation denying the motion. Fleetwood filed no Written objections to the
Commissioner’ s decision.

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 December
6, 2017;

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

Criminal Rule 61 is DENIED.

/s/Jeffrey J Clark
Judge

JJC/jb

 

1 Id. at *3.

EXhibit A

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1503013906

STATE OF DELAWARE )
) In and for Kent County
)

v.
) RK15-04-0355-01 Burglary 2nd (F)
THOMAS L. FLEETWOOD, ) RK15-04-0356-01 ATT Theft < 15 (M)
) RK15-04-0357-01 OFF Touching (M)
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.

Thomas L. Fleetwood, Pro se

FREUD, Commissioner
December 6, 2017

The defendant, Thomas L. Fleetwood (“Fleetwood”), Was found guilty on
November 18, 2015 by a jury of one count of Burglary in the Second Degree, 11 Del.
C. § 825; one count of Attempted Thefc as a lesser included offense of Felony
Attempted Thefc, 11 Del. C. § 531; and one count of Offensive Touching as a lesser
included offense of Assault in the Third Degree, 11 Del. C. § 601. FleetWood Was
found not guilty of Criminal Mischief. An Investigative Services Office report Was

ordered. On January 21 2016 the State filed a motion to declare FleetWood an habitual

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

offender pursuant to 11 Del. C. § 4214(a). The Court granted the State’s motion and
declared Fleetwood an habitual offender. On February 9, 2015 FleetWood Was
sentenced to a total of ten years and thirty days incarceration including eight year s
minimum mandatory as an habitual offender, suspended for probation after serving the
eight years minimum mandatory.

A timely Notice of Appeal to the DelaWare Supreme Court Was filed. Fleetwood
raised three issues on appeal summarized by the Supreme Court as folloWs:

...(l) the Superior Court erred by failing to instruct the jury
on the lesser included offense of criminal trespass first
degree; (2) the prosecutor made improper statements during
closing argument amounting to plain error; and (3) the
Superior Court erred When it sentenced him for criminal
mischief.l
The Supreme Court remanded the sentencing claim due to the fact that there had
been a clear error in the Court’ s jury verdict form Which caused the Court to improperly
sentence Fleetwood on the Criminal Mischief charge Which he Was found not guilty.
The Court afflrmed all of F leetvvood’s other claims.2 NeXt, FleetWood, pro se, filed a
Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. His

corresponding motion for Appointment of Counsel Was denied. In his Rule 61 motion,

Fleetwood raises three grounds, in part, alleging ineffective assistance of counsel.

 

l Fleelwood v. State, 2016 WL 5864585, at *l (Del. Supr.).

2 Id. at *3.

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

FACTS
The following is a summary of the facts as noted by the Supreme Court in its
opinion on Fleetwood’s Direct Appeal:

(1) A Superior Court jury convicted Thomas L. Fleetwood
of burglary second degree, misdemeanor attempted theft,
and offensive touching after he was caught in Kennard and
Takeisha Smith’s apartment holding their belongings The
jury acquitted Fleetwood of criminal mischief....

(2) Just after 1100 a.m. on March 22, 2015, Kennard called
his sister, Takeisha, and asked her to take him to a
convenience store. They had just moved into a new
apartment together, located above the Driftwood Spirits
liquor store on South Bradford Street in Dover. When the
two of them returned from the store, they noticed the outside
door to the apartment was open.

(3)
Kennard entered the apartment first with Takeisha close
behind him. Although it was dark, Takeisha saw Fleetwood,
a stranger to her, in the laundry room. He was holding her
laptops and steaks nom their freezer. Takeisha asked the
man what he was doing in their home, and if the items he
was holding were theirs. Fleetwood then dropped the items
on the floor and said, ‘They sent me. They sent me from
Smyrna.’ He told them he had both of their cell phones so
they could not call 911. He then attacked Kennard.

(4) As Kennard and Fleetwood fought, Takeisha’s
cell phone fell out of Fleetwood’s pocket. She
immediately picked it up and dialed 911. When the
police arrived, Kennard told them that he did not

3

State v. Thomas L. Fleetwood
ID No. 1403008516

December 6, 2017

know Fleetwood, but recognized him nom a nearby
pub earlier in the evening. A Dover Police
Department detective took photographs of the scene
showing steaks and pieces of Takeisha’s broken
laptops on the floor. One laptop was torn in half and
the other device would not turn on. Police arrested
Fleetwood and charged him with burglary second
degree, attempted theft, assault third degree, and
criminal mischief. The assault third degree charge
was reduced before trial to offensive touching.

(5) At the close of trial, Fleetwood requested an
instruction on criminal trespass first degree, a lesser
included offense of burglary. The Superior Court
denied the request, finding that the evidence at trial
did not support the instruction. The jury convicted
Fleetwood of burglary second degree, misdemeanor
attempted theft, and offensive touching, but acquitted
him of criminal mischief.3

FLEETWOOD’S CONTENTIONS

In his motion Fleetwood raises three grounds for relief:

Ground one: Ineffective Assistance of Councel (sic).

Councel (sic) failed to conduct any
meaningful pre-trial investigations,
never question witnesses, nor explore _
develope any line of defense despite
suspect testimony.

 

3 Fleetwood, 2016 WL 5864585, at *1.

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

Ground two:

Ground three:

These claims represent Fleetwood’s arguments in total as he did not file any

Ineffective assistance of Councel (sic).
Councel (sic) rendered ineffectiveness
by failing to timely object or challenge
solicited testimony by state witness,
procedural error, which was highly
prejudicial.

The appelant (sic) court abused it
discretion: The appellant (sic) court
conceded to appelant’s (sic)
claiins/assertion of the Prosecution
having made improper and prejudicial
remarks but failed to grant relief.

memorandum supporting his motion,

Under Delaware law, this Court must first determine whether Fleetwood has met
the procedural requirements of Superior Court Criminal Rule 61 (1) before it may
consider the merits of his postconviction relief clairn.4 Under Rule 61, postconviction
claims for relief must be brought within one year of the conviction becoming final.5
Fleetwood’ s motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not
apply to the claims raised in his motion, As this is Fleetwood’s initial motion for

postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any

 

DISCUSSION

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

5 Super. Ct. Crim. R. 6l(i)(l).

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

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: (1) cause for the
procedural fault and (2) prejudice nom a violation of the movant’s rights.6 The bars
to relief are inapplicable to a jurisdictional challenge or to a colorable claim or
miscarriage of justice stemming from a constitutional violation that “undermines the
fundamental legality, reliability, integrity or fairness of the proceeding leading to the
judgment of conviction.”7

Fleetwood’s third ground for relief is simply a restatement of the argument he
previously raised in his direct appeal. Superior Court Criminal Rule 61(i)(4) bars any
ground for relief that was formerly adjudicated unless reconsideration of the claim is
warranted in the interest of justice.8 Fleetwood raised this claim before and the
Supreme Court found no prejudice resulting from the Prosecutor’ s closing arguments
Fleetwood has made no attempt to argue why reconsideration of this claim is warranted
in the interest of justice. The interest of justice exception of Rule 61(i)(4) has been

narrowly defined to require that the movant show that “subsequent legal developments

 

6 Super. Ct. Crirn. R. 61(i)(3).
7 Super. Ct. Crirn. R. 61(i)(5).

8 Super. Ct. Crim. R. 61(i)(4).

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

have revealed that the trial court lacked the authority to convict or punish” him.9
Fleetwood has made no attempt to demonstrate why this claim should be revisited.
This Court is not required to reconsider Fleetwood’ s claim simply because it is “refmed
or restated.”10 F or this reason, these grounds for relief should be dismissed as
previously adjudicated under Rule 61 (i)(4).

Fleetwood’s remaining two claims, however, are premised to some degree, on
allegations of ineffective assistance of counsel. These types of claims are not normally
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. For this reason, many
defendants, including Fleetwood, 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 responsibility for the default be imputed to the State,
which may not “[conduct] trials at which persons who face
incarceration must defend themselves without adequate legal

 

9 Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d 736,
746 (Del. 1990)).

10 Riley v. State, 585 A.2d 719, 721 (Del. 1990).
ll State v. Gattis, 1995 WL 790961 (Del. Super.), at *3.

7

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

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
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. Washingt0n13 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 reasonableness.15
Second, under Strz`cklana’ the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings

6

would have been different, that is, actual prejudice.1 In setting forth a claim of

ineffective assistance of counsel, a defendant must make and substantiate concrete

 

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

,_.

3 466 U.S. 668 (1984).

4 551 A.2d 53, 58 (Del. 1988).
15 466 U.S. at 687-88; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

16 466 U.S. at 694; see Dawson, 673 A.2d at 1190; Accord, e.g., Zebroskz` v. State, 822 A.2d
l038, 1043 (Del. 2003); Ay€FS v. Sl`al‘e, 802 A.2d 278, 281 (Del. 2002); Sl‘eC/Cel V. Slale, 795 A.2d
651, 652 (Del. 2002); Johnson v. State, 813 A.2d 161, 167 (Del. 2001); Bl'alach v. Stale, 773 A.2d
383, 387 (D€l. 2001); Oul‘l€n v. State, 720 A.2d 547, 552 (Del. l998); Skl'l’ll’lel” v. Slal€, 607 A.2d
ll70, ll72 (D€l. l992); Flamer v. Stale, 585 A.2d 736, 753-754 (D€l. 1990).

8

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

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 established.18 However, the showing of prejudice is so central to
this claim that the Stricklcmd court stated "[i]f it is easier to dispose of an
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, the defendant 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

In the case at bar, Fleetwood attempts to show cause for his procedural default

 

17 See, e.g., Outlen v. State, 720 A.2d 547, 552 (Del. 1998); Righter v. State, 704 A.2d 262,
263 (Del.1997); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Skz'nner v. State, 1994 Del.
LEXIS 84; Brawley v. Stale, 1992 WL 353838 ; Younger v. State, 580 A.2d 552, 556 (Del. 1990);
Robinson v. Stale, 562 A.2d 1184, 1185 (Del. 1989). Accord Wells v. Petsock, 941 F.2d 253, 259-60
(3d Cir. 1991).

18 466 U.S. at 687.
19 Id. at 697.
20 State v. Gattis, 1995 WL 790961 (Del. Super.), at *4.

21 466 U.S. at 689; Dawson, 673 A.2d at 1190; Wright v. State, 671 A.2d 1353, 1356 (Del.
1996).

State v. Thomas L. Fleetwood
ID No. 1403008516
December 6, 2017

by making merely conclusory assertions of ineffectiveness of counsel. ln regards to
prejudice, Fleetwood simply claims that the failure of counsel to raise certain issues
was prejudicial Under the circumstances of the case, Fleetwood’s allegations are
meritless. The Supreme Court found no error in the trial. The record includes Trial
Counsel’s affidavit in which she unequivocally denies any error in her representation
of Fleetwood. Trial Counsel also state that she did in fact adequately prepare for the
trial and called all appropriate witnesses at trial.22 Fleetwood has utterly failed to
demonstrate prejudice as a result of his counsel’s representation This failure is fatal

to Fleetwood’s motion. His motion is therefore procedurally barred.23

CONCLUSION

AHer reviewing the record in this case, it is clear that Fleetwood has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). Consequently, 1
recommend that Fleetwood’ s postconviction motion be denied as procedurally barred
by Superior Court Crirninal Rule 61(i)(3) for failure to prove cause and prejudice and
Superior Court Criminal Rule 61(i)(4) as previously adjudicated on direct appeal.
/s/Andrea M. Freud

Commissioner

AMF/dsc

 

32 See Affidavit of Counsel for a complete overview of Counsel’s preparation for trial.

23 See, e.g. Wright, 671 A. 2d at 1356; Wright v. State, 1992 Del LEXIS 62; Brawley v,
State, 1992 WL 353838.

10

