        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                           :    ID. No. 1607019111
                                            :    In and for Kent County
      v.                                    :
                                            :    RK16-08-0323-01 ATT Murder 1st (F)
AARON T. PURNELL,                           :    RK16-08-0324-01 PFDCF (F)
                                            :
                    Defendant.              :

                                        ORDER

                              Submitted: January 14, 2019
                               Decided: January 23, 2019

      On this 23rd day of January, 2019 upon consideration of Aaron Purnell’s (“Mr.
Purnell”) Motion for Postconviction Relief, the Commissioner’s Report and
Recommendation, and the record in this case, it appears that:
      1. Mr. Purnell pled guilty on June 19, 2017, the day he was scheduled to go to
trial. He had initially rejected the State’s plea offer and the jury had been selected. He
then pled guilty to one count of Attempted Murder in the First Degree, 11 Del. C. § 531,
and one count of Possession of a Firearm During the Commission of a Felony (“PFDCF”),
11 Del. C. § 1447A. In exchange for his plea the State entered nolle prosequis on the
remaining counts including three additional counts of Possession of a Firearm During the
Commission of a Felony, one count of Possession of a Firearm by a Person Prohibited,
one count of Aggravated Menacing, one count of Reckless Endangering in the First
Degree, one count of Resisting Arrest with Force, and one count of Theft of a Firearm.
      2. As part of the Plea Agreement the State agreed to recommend a sentence of
forty-three years incarceration, suspended for probation after serving twenty-eight years.
Due to the nature of the charges and Mr. Purnell’s criminal history, he faced enhanced
sentencing and a total of life in prison plus 122 years had he been found guilty of all
charges. The Court followed the recommended sentence.
        3. On July 19, 2017, Mr. Purnell filed a Motion for Modification of Sentence
through counsel, which the Court denied on September 11, 2017. He did not appeal his
conviction or sentence to the Delaware Supreme Court. Mr. Purnell later filed, pro se,
the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61
alleging, in part, ineffective assistance of counsel.
        4. On October 31, 2018, the Commissioner filed her Report and Recommendation
for the denial of Mr. Purnell’s Rule 61 Motion. Mr. Purnell sent his objections to the
Report and Recommendation to the State in November 2018. However, the Court did not
receive his written objections until January 2, 2019. On that day, the Court accepted a
courtesy copy of his objections from the State and directed that they be considered filed.
After receiving them, the Court finds that the issues raised in his written objections were
raised in his previous filing. The Commissioner’s Report and Recommendation correctly
recommended denial of his motion.
        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 31,
2018;
        IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its entirety.
Accordingly, Mr. Purnell’s Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 is hereby DENIED.
                                                             /s/Jeffrey J Clark
                                                                     Judge




                                             2
Exhibit A



    3
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                        )    I.D. No. 1607019111
                                          )    In and for Kent County
       v.                                 )
                                          ) RK16-08-0323-01 ATT Murder 1st (F)
AARON T. PURNELL,                         ) RK16-08-0324-01 PFDCF (F)
                                          )
              Defendant.                  )




             COMMISSIONER'S REPORT AND RECOMMENDATION

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



Stephen R. Welch, Jr., Deputy Attorney General, Department of Justice, for the State of
Delaware.

Aaron T. Purnell, Pro se.


FREUD, Commissioner
October 31, 2018

       The defendant, Aaron T. Purnell (“Purnell”), pled guilty on June 19, 2017 the day
he was scheduled to go to trial, after he had initially rejected the State’s plea offer and the
jury had been picked, to one count of Attempted Murder in the First Degree, 11 Del. C.


                                              4
§ 531, and one count of Possession of a Firearm During the Commission of a Felony
(“PFDCF”), 11 Del. C. § 1447A.          In exchange for his plea the State entered nolle
prosequis on the remaining counts including three additional counts of PFDCF, one count
of Possession of a Firearm by a Person Prohibited, one count of Aggravated Menacing,
one count of Reckless Endangering in the First Degree, one count of Resisting Arrest with
Force, and one count of Theft of a Firearm. As part of the Plea Agreement the State
agreed to recommend a sentence of forty-three years incarceration, suspended after
serving twenty-eight years, for probation. Due to the nature of the charges and Purnell’s
criminal history, he faced enhanced sentencing and a total of life in prison plus 122 years
had he been found guilty of all the charges.            The Court agreed with the State’s
recommendation and sentenced Purnell to a total of forty-three years incarceration
suspended after twenty-eight years for probation, eighteen of which were minimum
mandatory. On July 19, 2017, Purnell, through counsel, filed a Motion for Modification
of Sentence which the Court denied on September 11, 2017. Purnell did not appeal his
conviction or sentence to the Delaware Supreme Court. He filed, pro se, the pending
motion for postconviction pursuant to Superior Court Criminal Rule 61 on April 3, 2017
alleging, in part, ineffective assistance of counsel.
                                         FACTS
      Purnell was arrested on July 28, 2016, in connection with a shooting incident which
had occurred at Alder Park Apartments south of Dover on July 24, 2016. On that date,
Corporal Edwin Justiniano (“Cpl. Justiniano”) of the Delaware State Police responded to
a complaint that a man had pushed a woman in the commons area outside one of the
apartment buildings and had displayed a firearm. Upon arriving at Alder Park Apartments
at approximately 8:20 p.m., Cpl. Justiniano saw Purnell in the area where the complaint
had been reported; he could see that Purnell appeared to match the description of the


                                             5
assailant. Cpl. Justiniano told Purnell to “come over here,” at which point Purnell and
another individual who was in the area fled on foot behind one of the nearby apartment
buildings. Cpl. Justiniano, who was alone, gave chase. The second individual soon veered
off and ran in a different direction from Purnell. Cpl. Justinano chose to let that person
go and continued to chase Purnell.
          As Cpl. Justiniano pursued Purnell behind the building, Purnell turned and fired a
shot at him from a distance of about 15 or 20 feet. Luckily, the shot missed. Cpl.
Justiniano immediately returned fire but his shots also missed. He continued to follow the
fleeing Purnell, who took a circuitous route but was eventually found in a bush in a nearby
backyard. Police located a 9 mm pistol in the bush; this firearm was later determined to
have fired a 9 mm shell casing found at the scene of the shooting. When the shooting
occurred, it was not yet dark; for this reason, Cpl. Justiano was easily able to identify
Purnell as the person who tried to shoot him. Cpl. Justiniano’s motor vehicle recorder was
operating at the time of the incident and preserved an audio recording of Cpl. Justiniano’s
initial verbal interactions with Purnell and of the shots which were filed. The incident
occurred out of range of the camera so there was no visual recording.1
                                     Purnell’S CONTENTIONS
          In Purnell’s Motion for Postconviction Relief he raises the following grounds for
relief:
                  Ground one:            Ineffective Assistance of Counsel.
                                         I try (sic) to get another counsel on
                                         records. In Judge Witham said keep him
                                         are (sic) rep myself. I don’t know the law
                                         so I was force (sic) to stay with Capone.

          On a separate page Purnell lists the following issues with his counsel:

           1
               State v. Purnell, Del. Super., ID No. 1607019111, D.I. 1.

                                                     6
             Capone was never for me he told me that I would lose my trial
             because I have dreads in tatoo’s in African american also told
             my mom the same thing. He also showed me a letter from my
             mom saying Aaron please take the plea, my mom never wrote
             that because she was not at my court date! Also the 4 motion
             a prison law worker put them together in I sent them to Capone
             so he could put them in.

             Ground two:          Coerced Judge.
                                  I stated on records that Capone was not for
                                  me in that I want a new counsel. Judge
                                  stated you keep Capone are (sic) rep
                                  myself. I don’t know the law so I was
                                  forced to stay with Capone.

      The grounds listed above constitute Purnell’s entire argument. He did not file a
memorandum in support of his claims. A briefing order was issued requesting a response
from Purnell’s Trial Counsel and the State and giving Purnell until August 13, 2018 to file
a Reply to Trial Counsel and the State. Purnell did not file a response by August 13,
2018. However on September 27, 2018, Purnell filed a self-titled “Separate Memoranda
Motion In Support of 61" in which he rehashes his arguments from his postconviction
motion filed on April 3, 2018. He attempts to add an argument concerning the State
forensic firearms expert and the voluntariness of his guilty plea. As an initial matter I note
that this filing is out-of-time. I have however reviewed Purnell’s out-of-time arguments
and have decided that they are frivolous for the reasons outlined below and I will not seek
input from Trial Counsel and the State.


                                      DISCUSSION
      Under Delaware law, this Court must first determine whether Purnell has met the
procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the


                                              7
merits of his postconviction relief claim.2 This is Purnell’s first motion for postconviction
relief, and it was filed within one year of his conviction becoming final. Therefore, the
requirements of Rule 61(i)(1) - requiring filing within one year and (2) - requiring that all
grounds for relief be presented in initial Rule 61 motion, are met. None of Purnell’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. Purnell’s first
claim and to some extent his claim concerning his guilty plea are based on ineffective
assistance of counsel; therefore, he has alleged cause for his failure to have raised them
earlier. His second ground for relief and his claim concerning the firearms expert are
however clearly barred by Superior Court Criminal Rule 61(i)(3) for failure to show cause
or prejudice.
      At this point, Rule 61(i)(3) does not bar relief as to Purnell’s grounds for relief
alleging ineffective assistance of counsel, provided he demonstrates that his counsel was
in fact ineffective and that he was prejudiced by counsel’s actions. To prevail on his claim
of ineffective assistance of counsel, Purnell must meet the two-prong test of Strickland v.
Washington.3 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.4 The
failure to establish that a defendant would not have pled guilty and would have proceeded



        2
            Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
        3
            466 U.S. 668 (1984).
        4
            Id. at 687.

                                                  8
to trial is sufficient cause for denial of relief.5 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.6 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.7 This standard is highly demanding.8 Strickland mandates that,
when viewing counsel's representation, this Court must endeavor to “eliminate the
distorting effects of hindsight.”9
       Following a complete review of the record in this matter, it is abundantly clear that
Purnell 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 Purnell’s self-serving claims that his counsel’s representation was ineffective.
Purnell’s counsel clearly denies the allegations.
       As noted, Purnell was facing the possibility of life in prison plus 122 years had he
been convicted, and the sentence and plea were reasonable under all the circumstances,
especially in light of the exceptionally strong evidence against him. Prior to the entry of
the plea, Purnell and his attorney discussed the case. The plea bargain was clearly
advantageous to Purnell. Counsel’s representation was certainly well within the range

        5
           Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
 60 (Del. 1988))(citations omitted).
        6
        See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
 WL 466465 at *1 (Del. Supr.)).
        7
            Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
        8
          Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
 U.S. 365, 383 (1986)).
        9
            Strickland, 466 U.S. at 689.

                                                   9
required by Strickland. Additionally, when Purnell entered his guilty plea, he stated he
was satisfied with defense counsel’s performance. He is bound by his statement unless
he presents clear and convincing evidence to the contrary.10 Consequently, Purnell has
failed to establish that his counsel’s representation was ineffective under the Strickland
test.
        Even assuming, arguendo, that counsel’s representation of Purnell was somehow
deficient, Purnell 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
allegations of actual prejudice and substantiate them or risk dismissal.11 In an attempt to
show prejudice, Purnell 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 Purnell’s grounds for relief are meritless.                   To the extent that
Purnell 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.12 At the guilty-plea hearing, the Court asked Purnell whether he
understood the nature of the charges, the consequences of his pleading guilty, and whether
he was voluntarily pleading guilty. The Court asked Purnell if he understood he would
waive his constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and


         10
           Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
 931, 937-938 (Del. 1994)).
         11
           Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
 556 (Del. 1990)).
         12
              Godinez v. Moran, 509 U.S. 389, 400 (1993).

                                                 10
whether he gave truthful answers to all the questions on the form. The Court asked
Purnell if he had discussed the guilty plea and its consequences fully with his attorney.
The Court asked Purnell if he was entering into the plea as he was guilty of the charges.
The Court also asked Purnell if he was satisfied with this counsel’s representation. Purnell
answered each of these questions affirmatively.13 I find counsel’s representations far more
credible than Purnell’s self-serving, vague allegations.
      Furthermore, prior to entering his guilty plea, Purnell signed a Guilty Plea Form and
Plea Agreement in his own handwriting. Purnell’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.
Purnell is bound by the statements he made on the signed Guilty Plea Form, unless he
proves otherwise by clear and convincing evidence.14 I confidently find that Purnell
entered his guilty plea knowingly and voluntarily and that Purnell’s grounds for relief are
completely meritless.
                                         CONCLUSION
      I find that Purnell’s counsel represented him in a competent and effective manner
and that Purnell has failed to demonstrate any prejudice stemming from the representation.
I also find that Purnell’s guilty plea was entered knowingly and voluntarily. I recommend
that the Court deny Purnell’s motion for postconviction relief as procedurally barred and
completely meritless.

                                              /s/ Andrea M. Freud
                                                Commissioner


        13
             State v. Purnell, Del. Super., ID No. 1607019111, (June 19, 2017), Tr. at 3 to 10.
        14
             Sommerville, 703 A.2d at 632.

                                                  11
