IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
Plaintiff,

V. ID No. 1404000692
ALEX RYLE,
Defendant. )
)

Submitted: March 12, 2019
Decided: June 27, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
AND
RULE 61 COUNSEL’S MOTION TO WITHDRAW
SHOULD BE GRANTED

John S. Taylor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Edward F. Eaton, Esquire, The Eaton Law Firm, Wilmington, Delaware, Attorney
for Defendant Alex Ryle.

SALOMONE, Commissioner
This 27th day of June, 2019, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court as follows:

BACKGROUND AND PROCEDURAL HISTORY
l. On April 2, 2014, Defendant Alex Ryle (“Mr. Ryle” or “Movant”) was

arrested in Wilmington, Delaware for drug and weapons charges and violations of
probation. On July 7, 2014, Mr. Ryle was indicted on the following charges: (i)
three counts of Possession of a Firearm By a Person Prohibited (“PFBPP”); (ii)
Possession of Ammunition By a Person Prohibited (“PABPP”); (iii) Carrying a
Concealed Deadly Weapon (“CCDW”); and (iv) Possession of a Controlled

Substance (“Poss CS").

2. On July 15, 2014, seemingly unaware of the indictment, Mr. Ryle filed
a pro se Motion to Dismiss for Lack of Indictment. The Motion was referred to his

appointed counsel, Dade Werb, Esq. (“Mr. Werb” or “trial counsel”).

3. On September 9, 2014, Mr. Ryle filed a Motion to Dismiss Current
Counsel and/or Appoint New Counsel because Mr. Werb failed to file certain
motions requested by Mr. Ryle, including motions for “dismissal, speedy trial,
discovery, severance, and suppression.” Shortly thereafter, Mr. Werb filed a Motion

to Withdraw as Counsel.
4. On October 27, 2014, the Motions to Withdraw as Counsel and Dismiss
Current Counsel were presented to Commissioner Lynne Parker. After a thorough
and lengthy colloquy with Mr. Ryle, the Motions were granted and Mr. Ryle was to

proceed pro se.

5. After the Court’s approval of Mr. Ryle proceeding pro se, he began
filing the motions that he had previously requested be filed by Mr. Werb. By letter
dated October 28, 2014, Mr. Ryle requested discovery from the State. On November
5, 2014, he filed a Motion to Suppress. On November 10, 2014, he filed a Motion
to Sever. On November 26, 2014, he filed a Motion to Disclose the Identity of a
Confidential Informant. The latter three motions were considered by Judge Mary
Johnson on January 23, 2015 at which time both the disclosure and suppression

motions were denied.! The severance motion was ultimately denied as moot.

6. On December 8, 2014, a final case review was held before Judge

Charles Butler at which time Mr. Ryle rejected the plea offer from the State.

fle On December 22, 2014, Mr. Ryle was reindicted on the same charges:

PFBPP (3 counts), PABPP, CCDW and Poss CS.

 

' Ryle v. State, 2015 WL 354028 (Del. Super.).
8. On December 29, 2014, Mr. Ryle filed a Motion to Dismiss for Lack of

a Speedy Trial, Delay in Filing an Information, and Due Process Violations.

9. On January 20, 2015, Mr. Ryle was arraigned on the reindicted charges
and, after another colloquy with Commissioner Parker, signed a second Waiver of

Counsel Form and confirmed his desire to proceed pro se.

10. On January 23, 2015, Mr. Ryle filed a Motion to Dismiss, which was

heard and dismissed by Commissioner Mark Vavala on January 26, 2015.

11. On February 3, 2015, Mr. Ryle filed a Motion in Limine. On February
4, 2015, the State filed a Motion to Exclude Inadmissable Evidence. Both Motions
were addressed by Judge Fred Silverman at a pretrial conference held on February
9, 2015. Mr. Ryle’s Motion was dismissed as untimely and the State’s evidentiary

issues were discussed.

12. Aury trial was held before Judge Paul Wallace on February 10 and 11,
2015. Prior to the commencement of the trial, Judge Wallace precluded the State
from introducing a toxicology report into evidence because it was not provided to
Mr. Ryle in a timely manner. As a result, the State did not purse the drug offense.
The State also entered a nolle prosequi on two counts of PFBPP and the Poss CS

charge. In order to avoid introducing evidence at trial regarding his prior
convictions, Mr. Ryle stipulated that he was a person prohibited from possessing a

firearm and ammunition.

13. On the second day of trial, Mr. Ryle requested the appointment of

standby counsel, which was denied by the Court.

14. Following the two-day trial, the jury found Mr. Ryle guilty of PFBPP,

PABPP and CCDW.

15. On February 16, 2015, the State moved to declare Mr. Ryle a habitual
offender. That same day, Mr. Ryle filed a Motion for a New Trial under Superior
Court Rule 33. Ten days later, Mr. Ryle requested leave to amend the motion, which

was granted by Judge Wallace.

16. On August 14, 2015, Judge Wallace issued an Opinion denying the

Motion for a New Trial.”

17. On August 18, 2015, Mr. Ryle was scheduled for sentencing at which
time he renewed his request for the appointment of standby counsel. The Court
granted Mr. Ryle’s request and ordered the appointment of Mr. Werb as standby
counsel for sentencing. The sentencing was rescheduled for September 18, 2015

and then later postponed again at Mr. Ryle’s request.

 

2 State v. Ryle, 2015 WL 5004903 (Del. Super.)

4
18. On September 30, 2015, Mr. Ryle filed a Motion for Assistance of
Counsel, objecting to the appointment of Mr. Werb as standby counsel and seeking

substitute counsel.

19. On October 2, 2015, Mr. Werb informed the Court regarding certain
issues raised by Mr. Ryle, including Mr. Ryle’s request for a merger of several
charges and his objection to being sentenced as a habitual offender. That same day,
the Court entered an Order Appointing Counsel and denied Mr. Ryle’s request to
exclude Mr. Werb as counsel. The Court advised Mr. Ryle that it would not permit
“hybrid” representation nor would the Court accept any further pro se filings under

Superior Court Criminal Rule 47.

20. On October 8, 2015, the Superior Court granted the State’s motion and
ordered that Mr. Ryle to be sentenced as a habitual offender with respect to the
charges of PFBPP and CCDW. On the charge of PFBPP, the Court imposed the
minimum mandatory sentence required under the habitual offender statute of fifteen
(15) years of incarceration at Level V, with a credit of 159 days for time previously
served, with no probation to follow. On the charge of CCDW, the Court also
imposed the minimum mandatory sentence required under the habitual offender
statute of eight (8) years of incarceration at Level V, with no probation to follow.
On the charge of PABPP, the Court imposed a sentence of eight (8) years of

incarceration at Level V, suspended for decreasing levels of supervision.

5
21. On October 19, 2015, Mr. Werb filed a Notice of Appeal with the
Supreme Court of the State of Delaware. On January 8, 2016, a Stipulation of
Counsel was filed in the Delaware Supreme Court entering the appearance of
Michael W. Modica, Esq. (“Mr. Modica” or “appellate counsel’), as counsel for Mr.

Ryle.

22. On March 23, 2016, Mr. Modica filed an Opening Brief with respect to
Mr. Ryle’s direct appeal to the Delaware Supreme Court in which he raised two
issues on appeal: (i) the Superior Court Commissioner lacked the authority to grant
Mr. Ryle’s request to proceed pro se and (ii) despite having a colloquy with the
Commissioner about the risks of proceeding without counsel, Mr. Ryle did not
knowingly and voluntarily waive his right to counsel. The State filed its Answer on
April 18, 2016 and a Reply was filed on May 3, 2016. On October 11, 2016, the
Delaware Supreme Court determined that the appeal was without merit and affirmed

the judgment of the Superior Court.?

23. On August 16, 2017, Mr. Ryle filed a pro se Motion for Postconviction
Relief, alleging, inter alia, ineffective assistance of counsel, as well as a Motion for

Appointment of Counsel.*

 

3 Ryle v. State, 149 A.3d 505 (Del. 2016).
* The Motion for Appointment of Counsel was granted the same day by Judge Wallace, appointing
the Office of Defense Services to represent Mr. Ryle in connection with the postconviction motion.

6
24. Mr. Ryle raised three grounds in support of his Motion for

Postconviction Relief which are summarized as follows:
Ground One: Ineffective Assistance of Appellate Counsel

Mr. Ryle asserts that appellate counsel was ineffective for failing to challenge
“the Trial Court’s sanction of the State’s discovery violation” and that the outcome

of the appeal would have been different if appellate counsel had done so.
Ground Two: Ineffective Assistance of Trial Counsel

Mr. Ryle asserts that trial counsel’s (i) refusal to file the numerous pre-trial
motions requested by Mr. Ryle and (ii) failure to properly explain to Mr. Ryle his
legal situation, legal options and legal rights, forced Mr. Ryle to proceed pro se.
According to Mr. Ryle, if he had been represented buy counsel, the outcome of the

trial would have been different.
Ground Three: Improper Enhancement of Sentence

Mr. Ryle asserts that his sentence was improperly enhanced due to prior
violent felonies, which raises a “prejudicial issue of my crimes classification of

violence yet lacking actual violence in the actus reus of my convictions.”
FACTS
25. On April 1, 2014, Mr. Ryle was observed by the Wilmington Police

Violent Crimes Task Force during an investigation into illegal drug activity in the
area near the 400 block of East 35" Street in Wilmington, Delaware. Mr. Ryle had
an outstanding warrant for his arrest at the time due to probation violations and was

taken into custody.

26. At the time of his arrest, Mr. Ryle was in possession of a loaded 25
caliber semi-automatic handgun and a bag containing a substance that field tested

positive for cocaine. The gun was found in the pocket of Mr. Ryle’s pants.

27. After a recitation of his Miranda rights while in custody, Mr. Ryle
confessed to possessing the gun in a recorded interview. The videotaped statement
was played for the jury at trial. He also stipulated that he was a person prohibited
from possessing firearms to try to avoid any evidence of his prior convictions being

presented at trial.

28. Mr. Ryle decided to testify at trial despite warnings from the Court that
it could be a mistake to do so.* During his testimony, Mr. Ryle admitted that he was
high on crack cocaine at the time of his arrest and that he was in possession of the

gun, which he had put in his pants pocket.

 

> The Court also conducted a balancing test under D.R.E 609(a)(1).
8
29. Based upon his testimony and closing argument, it appears that Mr.
Ryle’s defense strategy was to ask the jury to find him not guilty because he only
possessed the gun “momentarily” and for the purpose of self-protection but not fpr
the purpose of committing a crime. His strategy was to elicit sympathy from the
jury by demonstrating that (i) he was high on drugs at the time of his arrest and not
aware he had the gun in his pocket and (ii) he was concerned for his safety due to a

recent murder in the area.

30. Mr. Ryle’s defense strategy also caused him to elicit testimony from
police officers about their drug investigation. At one point in the trial, Mr. Ryle
raised as an objection that the officers’ affiliation with the drug unit had been
mentioned during their testimony. The Court gave a cautionary instruction and told
the jury not to consider the fact that the police officers worked for the drug unit as
having any bearing on the facts of the case. Although the Court tried to convince
him otherwise, Mr. Ryle testified as to his use of drugs and possession of the gun on

the date of the arrest.

RULE 61 MOTION AND COUNSEL’S MOTION TO WITHDRAW

31. Mr. Ryle filed a timely pro se motion for postconviction relief and
request for the appointment of counsel on August 16, 2017. Rule 61 counsel was

appointed and given leave to amend Mr. Ryle’s pro se motion.
32. On May 23, 2018, assigned Rule 61 counsel filed a Motion to Withdraw
as Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6).

Superior Court Criminal Rule 61(e)(6) provides that:

If counsel considers the movant’s claim to be so lacking in
merit that counsel cannot ethically advocate it, and counsel is
not aware of any other substantial ground for relief available
to the movant, counsel may move to withdraw. The motion
shall explain the factual and legal basis for counsel’s opinion
and shall give notice that the movant may file a response to
the motion within 30 days of service of the motion upon the
movant.

33. In the motion to withdraw, Rule 61 counsel represented that, after
undertaking a thorough analysis of the record to evaluate the defendant’s claims,
counsel has determined that the claims are so lacking in merit that counsel cannot
ethically advocate any of them.® Counsel further represented that, following a
thorough review of the record, counsel was not aware of any other substantial claim
for relief available to Mr. Ryle. Rule 61 counsel represented to the Court that there
are no potential meritorious grounds on which to base a Rule 61 motion and has

therefore sought to withdraw as counsel.’

 

6 See, Superior Court Docket Nos. 102 & 103- Motion to Withdraw as Counsel along with the
accompanying Memorandum in Support of Motion to Withdraw and Appendix.
"Id.

10
34. On the same day, Rule 61 counsel advised Mr. Ryle of his motion to
withdraw and that he had the right to file a response thereto within 30 days, if he

desired to do so.

35. On July 16, 2018, Rule 61 counsel forwarded Mr. Ryle’s response to

the Court.

36. The record was expanded and both appellate and trial counsel submitted
Affidavits in response to Mr. Ryle’s Motion for Postconviction Relief. The State
filed its response to Mr. Ryle’s Motion for Postconviction Relief on October 24,
2018. Mr. Ryle filed his reply to the State on January 28, 2018. The State filed its

sur-reply on March 5, 2019.

37. In order to evaluate Mr. Ryle’s Rule 61 motion and to determine
whether his Rule 61 counsel’s motion to withdraw should be granted, the Court
should be satisfied that Rule 61 counsel made a conscientious examination of the
record and the law for claims that could arguable support Mr. Ryle’s Rule 61 motion.
In addition, the Court should conduct its own review of the record in order to
determine whether Mr. Ryle’s Rule 61 motion is so totally devoid of any, at least,

arguable postconviction claims.°

 

8 Matos v. State, 2015 WL 5719694, *2 (Del.).

11
LEGAL ANALYSIS OF CLAIMS

38. Before considering the merits of the claims, the Court must first
determine whether there are any procedural bars to the Rule 61 Motion.’ This is Mr.
Ryle’s first motion for post-conviction relief and it was timely filed.'!° Pursuant to
Super. Ct. Crim. R. 61(i)(3) and (4), any ground for relief that was not previously
raised is deemed waived, and any claims that were formerly adjudicated, whether in
the proceedings leading to the judgment of conviction, in an appeal, in a
postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter
barred.'' However, ineffective assistance of counsel claims cannot be raised at any
earlier stage in the proceedings and are properly presented by way of a motion for

postconviction relief.’

39. In order to prevail on a claim of ineffective assistance of counsel, the
defendant must satisfy the two-prong standard set forth in Strickland vy.

Washington.'? This test requires the petitioner to show: (a) counsel’s deficient

 

” Younger y. State, 580 A.2d 552, 554 (Del. 1990).

10 See Super. Ct. Crim. R. 61(i)(1) (motion must be filed within one year of when conviction
becomes final); Super. Ct. Crim. R. 61(m)(2) (If the defendant files a direct appeal, the judgment
of conviction becomes final when the mandate is issued).

'! See Super. Ct. Crim. R. 61(i)(5) and (d)(2)(i), (ii).

2 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-Mayes, 2016 WL
4502303, at *2 (Del. Super. Aug. 25, 2016).

13 Strickland v. Washington, 466 U.S. 668 (1984).

12
performance, i.e., that his attorney’s performance fell below “an objective standard

9914

of reasonableness,”!* and (b) prejudice.!>

40. Under the first prong, judicial scrutiny is highly deferential. Courts
must ignore the distorting effects of hindsight and proceed with a strong presumption
that counsel’s conduct was reasonable.'® The Strickland Court explained that a court
deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of

counsel’s conduct.!’

41. Under the second prong, in order to establish prejudice, the movant
must show that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine the confidence in the
outcome.”!® In other words, not every error that conceivably could have influenced
the outcome undermines the reliability of the result of the proceeding.'!? The court
must consider the totality of the evidence and must ask if the movant has met the

burden of showing that the decision reached would reasonably likely have been

 

4 Td. at 688.
'S Td. at 694,
'6 Td. at 689.
'" Td. at 690.
'8 Td, at 694.
19 Td. at 693.

13
different absent the errors.2° “The benchmark for judging any claim of
ineffectiveness must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.”!

42. Mere allegations of ineffectiveness will not suffice; instead, a defendant
must make and substantiate concrete allegations of actual prejudice.” Although not
insurmountable, the Strickland standard is highly demanding and leads to a strong
presumption that counsel’s conduct fell within a wide range of reasonable
professional assistance.7? Moreover, there is a strong presumption that defense

counsel’s conduct constituted sound trial strategy.”
MOVANT’S RULE 61 MOTION IS WITHOUT MERIT
I. Ground One: Ineffective Assistance of Appellate Counsel

43. With respect to Ground One of his Rule 61 Motion, Mr. Ryle claims th
at appellate counsel was ineffective for failing to challenge “the Trial Court’s

sanction of the State’s discovery violation.” Appellate counsel addressed this claim

 

0 Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strickland v. Washington, 466 U.S. 668, 695-
696 (1984).

2! Cooke v. State, 977 A.2d 803, 840 (Del. 2009)(quoting Strickland, 466 U.S. at 686).

22 Younger v. State, 580 A.2d 552, 556 (Del. 1990).

3 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del.
2008).

24 Strickland v. Washington, 466 U.S. 668, 689 (1984).

14
in his Affidavit and explained that he examined, but rejected, Movant’s claims
relating to the adverse rulings and did not have a good faith basis to appeal any
adverse ruling by the trial court relating to any alleged discovery violations. In his

letter to Mr. Ryle, dated Februrary 8, 2016, Mr. Modica advised Mr. Ryle as follows:

I reviewed the transcript to see if the Court committed
error in any of its evidence decisions. I did not detect any
significant error that would support a reversal of your
conviction based upon the erroneous admission of
evidence. Judge Wallace ruled in your favor on a number
of issues, including on the issue relating to the medical
examiner’s report. Based on that ruling the State was
forced to dismiss the possession of drug charge.
Significantly, he ruled in your favor on which convictions
could be presented to the jury. He prevented all of your
felony convictions from being admitted at trial and only
allowing the misdemeanor conviction to be considered by
the jury. Moreover, I don’t believe that the Court
committed error by denying your motion to suppress, or
any of your other motions.

44. Simply put, appellate counsel did not advance claims that he did not
believe were supported by the record. Mr. Ryle asserts such conduct amounts to
ineffective assistance of counsel. That is not the law. Contrary to Mr. Ryle’s

position, an officer of the Court has a duty to NOT raise frivolous claims.”

45. Moreover, as appellate counsel aptly stated in his Affidavit, “this was a

simple case.” A capias had been issued for Mr. Ryle’s arrest for his violations of

 

25 Fairthorne Maint. Corp. v. Ramunno, 2007 WL 2214318 (Del. Ch.).

15
probation. The police, therefore, had the authority to take Mr. Ryle into custody and
execute the warrant without the need for probable cause. A search incident to the
arrest led to the discovery of a concealed deadly weapon that Mr. Ryle was

prohibited from possessing based on his prior felony convictions.

46. As Mr. Modica further stated in his Affidavit, in pertinent part:

Defendant is unable to demonstrate that the Trial Court
abused its discretion in denying any of his motions,
including any motions relating to discovery. Even if the
Trial Court abused its discretion in denying any of the
Defendant’s discovery motions, such error would be
harmless as he is unable to demonstrate that the outcome
would be different. In other words, there is no discovery
requested, that if provided, would have changed the fact
that defendant was lawfully arrested and searched, and that
he possessed a prohibited weapon concealed on his person.

Based on the foregoing, Mr. Modica’s actions were objectively reasonable
under the circumstances. He brought claims on appeal with merit (that were worthy

of oral argument) and did not bring those without merit.

47. Movant has failed to meet his burden under Strickland on his claim of
ineffective assistance of appellate counsel because he has not shown that there was
a reasonable probability that but for the purported professional error of not raising

the discovery violations, there would have been a different outcome on appeal.

16
II. Ground Two: Ineffective Assistance of Trial Counsel

48. With respect to Ground Two of his Rule 61 Motion, Mr. Ryle claims
that trial counsel was ineffective for failing to (i) diligently evaluate his case, (ii)
properly advise him of his legal rights and (iii) zealously advocate his position by
refusing to file certain motions to dismiss for lack of indictment, speedy trial,
severance, discovery and suppression. Mr. Ryle asserts that each of the foregoing
failures compelled him to proceed pro se and had he been represented by counsel,

the outcome of the trial would have been different.

49. In his Affidavit, trial counsel explained that the requested motions
would have been either untimely or superfluous. For example, Mr. Werb stated that
based on his experience in Superior Court, had a motion to dismiss for lack of
indictment been filed prior to the July 7, 2014 indictment, the State would have
requested more time to indict, which request would have been granted. Similarly,
he explained that although his initial request for discovery was sent to the State on
April 14, 2014, he did not believe that filing a motion to compel would have been
warranted as of August 7, 2014 as Mr. Ryle had yet to have his first case review (at

which time discovery was provided).

50. As the case proceeded, Mr. Ryle continued to send trial counsel letters

and draft motions he wanted him to file with the Court. In his Affidavit, Mr. Werb

17
stated that he reviewed each motion and determined that the motions had no

colorable basis or merit based on his evaluation of the case.

51. An ineffective assistance of counsel claim based on the failure to file a

motion is without merit if trial counsel lacked a legal or factual basis to do so.”

52. Moreover, Mr. Werb provided a detailed account of the dates when he
met with Mr. Ryle (in person or by videophone) and the matters that were discussed
at each meeting. In the Court’s view, this recitation demonstrates that trial counsel
properly advised Mr. Ryle at each stage of the proceedings and was diligent in doing

SO.

53. After Mr. Ryle’s request to proceed pro se was granted, Mr. Ryle filed
the motions that he had previously requested that trial counsel file on his behalf.
With a few exceptions, most of those motions were denied by the Court. Those that
were granted inured to Mr. Ryle’s benefit at trial. Given that the Court ultimately
considered these motions, Mr. Ryle cannot show he was prejudiced by trial counsel’s

failure to file them.

54. Under the facts and circumstances of this case, trial counsel’s actions
were objectively reasonable. He declined to file untimely motions to dismiss and to

compel discovery. Even if those actions were judged to be unreasonable, there is no

 

6 State v. Exum, 2002 WL 100576, *2 (Del. Super.), affirmed, 2012 WL 2017230, *1 (Del.).
18
reasonable probability that, but for those actions, the result of trial would have been

different.

55. Movant has failed to meet his burden under Strickland on his claim of
ineffective assistance of trial counsel because the purported failures on the part of
trial counsel have not been shown to so undermine the proper functioning of the
adversarial process such that the trial cannot be relied upon as having produced a

just result.
II. Ground Three: Improper Enhancement of Sentence

56. With respect to Ground Three of his Rule 61 Motion,”’ Mr. Ryle claims
that his sentence was improperly enhanced. In essence, he asserts that counsel
should have argued for a change in the law based on the dissent in Forehand vy.

State.*8

57. In Forehand, then Chief Justice Steele states in his dissent that he fails
to see a rational basis to classify an Escape from Conviction charge as a violent

felony. Mr. Ryle, in turn, argues that the felonies that triggered the enhancement of

 

*7 Ground Three is not specifically raised by Mr. Ryle as an ineffective assistance of counsel claim
to support his Rule 61 Motion, but the Court will treat the issue raised in his letters as if being set
forth for that reason.

28 997 A.2d 673 (Del. 2010).

19
his sentence as a habitual offender were not, in fact, crimes of violence and did not

endanger the public in any way.

58. This ground for relief could have been asserted in the appeal and is
barred under Rule 61 unless it is deemed warranted in the interest of justice. Here,

it is not.

59. Failure on the part of an attorney to argue for a change in existing law
does not constitute ineffective assistance of counsel, which would have been
necessary to maintain a claim that Mr. Ryle’s underlying felonies are not properly

classified as violent.

60. Under Forehand, for purposes of constitutional analysis, statutes are
presumptively valid and will be upheld if a rational basis supports the classification

of the offense—whether the underlying crime involved violence or not.”?

61. In Mr. Ryle’s case, however, the predicate offenses were violent in
nature and included Assault in the First Degree, Aggravated Menacing and CCDW.
Appellate counsel would have had no basis to argue for the change in the law for

which Mr. Ryle claims.

 

29 Forehand, 997 A.2d at 674.
20
62. To the extent Movant is claiming ineffective assistance of appellate
counsel for failing to argue a change in existing law, Movant has failed to meet his
burden under Strickland as counsel’s conduct was objectively reasonable and

Movant can show no prejudice.

CONCLUSION

Movant has failed to establish that either his appellate counsel or trial counsel
were deficient in any regard or that he suffered actual prejudice as a result thereof.
The court has reviewed the record carefully and has concluded that Movant’s Rule
61 motion is without merit and devoid of any other substantial claims for relief. The
court is also satisfied that Movant’s Rule 61 counsel made a conscientious effort to
examine the record and the law and has properly determined that Movant does not

have a meritorious claim to be raised in his Rule 61 motion.

21
For all of the foregoing reasons, Movant’s Motion for Postconviction Relief
should be DENIED and Rule 61 counsel’s motion to withdraw should be

GRANTED.

IT IS SO RECOMMENDED.

Chmmissioner Janine M. Salomone

oc: Prothonotary

cc: Dade D. Werb, Esquire
Michael W. Modica, Esquire
Alex Rye (SBI 00463547)

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