IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D. # 1402003900
ANDREW LEANING, §
Defendant. §

Submitted: July 29, 2016
Decided: October 12, 2016

Upon Defendant’s Motion for Post-Conviction Relief: DENIED

This 12th day of October, 2016, upon consideration of Defendant’s Motion
for Post-Conviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”) and the record in this case, it appears to the Court that:
FACTUAL AND PROCEDURAL BACKGROUND
l. Andrew Leaning caused a three-car accident on February 6, 2014
When he ran a red light and collided With two cars. At the scene, Leaning acted
erratically, had glassy eyes, smelled faintly of alcohol, Was observed discarding a
hypodermic needle as he existed the car, and admitted at the hospital to smoking
crack cocaine that day. After a blood draw revealed Leaning Was under the
intluence, he Was arrested and charged With one count of Vehicular Assault First
Degree, two counts of Vehicular Assault Second Degree, one count of Driving
Under the Influence (“DUI”), one count of Driving Without Proof of Insurance, and

one count of lnattentive Driving.

2. Leaning Was represented throughout pretrial proceedings by Brian
Chapman, Esquire (“Trial Counsel”). On the morning of trial, Leaning pleaded
guilty to one count of Vehicular Assault First Degree, one count of Vehicular
Assault Second Degree, and one count of DUI.1 A pre-sentence investigation Was
ordered and completed for Leaning. Leaning Was scheduled to be sentenced on
July 10, 2015, but that sentencing date Was continued because Leaning recently
had relapsed into using drugs after his release from an inpatient treatment facility.2
Leaning ultimately Was sentenced, effective July 10, 2015, as folloWs: (1) as to
Vehicular Assault First Degree, three years at Level V, suspended after successli,ll
completion of inpatient drug treatment for two years at Level IV Crest, suspended
after successful completion of Crest for one year at Level III Crest Aftercare, (2) as
to Vehicular Assault Second Degree, one year at Level V, suspended for one year
at Level III, and (3) as to DUI, 60 days at Level V.3

3. Leaning did not flle a direct appeal of his conviction or sentence. He
has filed three motions for correction of sentence under Superior Court Criminal
Rule 35, all of Which have been denied by this Court. In the order denying his

third Rule 35 motion, this Court ordered that no further requests for relief filed by

 

1 D.l. 25.

2 See D.l. 51, Triai Counsel Aff. at 3-4.

3 D.I. 36. Because the DUI Was Leaning’s second conviction for that offense, the 60-day period
at Level V Was the minimum mandatory sentence for that charge.

2

Leaning Would be accepted Without Leaning first obtaining a Superior Court
judge’s permission4

4. On April 28, 2016, before that order Was issued, Leaning filed this
Motion.5 In the Motion, Leaning advances a single claim that he contends entitles
him to post-conviction relief: that Trial Counsel provided ineffective assistance by
failing “to present mitigating evidence at sentencing in violation of [Leaning’s]

”6 Both Trial Counsel and the State responded to

Sixth Amendment [rights].
Leaning’s Motion.7
ANALYSIS
A. Procedural bars to Leaning’s claims
5. Before addressing the merits of any claim for post-conviction relief,
this Court first must determine Whether the motion procedurally is barred under
Rule 61.8 A motion for post-conviction relief may be barred for timeliness and

repetition, among other things. A motion filed under Rule 61 is untimely if it is

filed more than one year after a final judgment of conviction.9 A defendant also is

 

4 D.I. 46.

5 D.1.43.

6 D.I. 45, Mem. of Law in Supp. ofR. 61 Mot. at 3.

7 D.1.51,53.

8 See Baz'ley v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554
(Del. 1990).

9 super. ct. Crim. R. 61(1)(1).

barred from filing successive motions for post-conviction relief.10 The rule further
prohibits motions based on any ground for relief that was not asserted in the
proceedings leading up to the judgment of conviction, unless the movant
demonstrates “cause for relief from the procedural default” and “prejudice from

”H Finally, the Rule bars consideration of any

violation of the movant’s rights.
ground for relief that previously was adjudicated in the case.12

6. Notwithstanding the aforementioned procedural bars, this Court may
consider a motion that otherwise is barred if the motion is based on claims that the
Court lacked jurisdiction or the motion satisfies the pleading requirements set forth
in Rule 61(d)(2).13 Rule 61(d)(2) requires that the movant plead with particularity
that (i) new evidence exists that creates a strong inference that the movant actually
is 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 or death sentence invalid.

7. Leaning’s Motion was filed less than a year after his sentence became

final, and it therefore is timely. The Motion alleges ineffective assistance of

 

10 Id. 61(i)(2); see id. 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive
motions).

111¢1'. 61(1)(3).

12 1a 61(i)(4).

13 M. 61(1)(5).

counsel, which could not be raised at any earlier stage in the proceedings14 The
Court therefore will consider the merits of Leaning’s claims.
B. Leaning’s claim of ineffective assistance of counsel

8. A defendant claiming ineffective assistance of counsel must
demonstrate both that counsel’s representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different When addressing
the prejudice prong of the ineffective assistance of` counsel test in the context of a
sentencing hearing, an inmate must show that “there is a reasonable probability
that, but for the counsel’s error, the result of [his] sentencing would have been
different.”15 Leaning cannot demonstrate either element of the ineffective
assistance standard.

9. Leaning argues Trial Counsel was ineffective in his failure to present
mitigating evidence at sentencing Leaning contends “the trial court did not order
a [p]resentence [i]nvestigation” and “no mitigating evidence was presented by
[T]rial [C]ounsel at the sentencing hearing,” despite “abundan[t]” evidence being

available to Trial Counsel.16 The record reflects Leaning was not, as he contends,

 

14 Whittle v. State, 138 A.3d 1149 (Del 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2
(Del. Super. Aug. 25, 2016).

15 Brr:w!ey v. S!czte, 1992 WL 353838, at *1 (Del. Oct. 7, 1992); State v. Torres, 2015 WL
5969686, at *11 (Del. Super. Ct. Oct. 2, 2015).

16 D.I. 43 at 1111 7, 8.

sentenced on the same day he pleaded guilty. Rather, a pre-sentence investigation
was obtained and available to the Court. The Court’s sentencing order reflects its
consideration of mitigating factors, including that Leaning’s treatment needs
exceeded his need for punishment17 Finally, Trial Counsel’s affidavit indicates he
“advised the Court” at sentencing” regarding Leaning’s “remorse for his actions,
his initiative in entering Gaudenzia for in-patient treatment[,] as well as his

”18 Thus, Leaning has not shown

significant physical and mental health issues.
Trial Counsel’s representation fell below an objective standard of reasonableness
10. Moreover, this Court has considered three applications filed by
Leaning to modify his sentence, through which the Court had ample opportunity to
reconsider its sentence and any mitigating factors Leaning believed the Court or

Trial Counsel may have overlooked. Leaning therefore cannot demonstrate that,

but for Trial Counsel’s alleged error, his sentence would have been different.

For the foregoing reason, Andrew K. Leaning’s Motion for Post-Conviction

Relief is DENIED. IT IS SO ORDERED.

J/zn,,.;/’Z %/

Abigafi Mi'l.eGrow'L;l Judge
Original to Prothonotary
cc: Barzilai K. Axelrod, Deputy Attorney General

Brian J. Chapman, Esquire
Andrew K. Leaning (SBI No. 00154197)

 

11 D.1.36.
18 D.I. 51 at4.

