       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


STATE OF DELAWARE                           )
                                            )
       v.                                   )       IK12-09-0484-01
                                            )       PFBPP PABPP (F)
WILLIAM T. WARREN                           )       In and for Kent County
                                            )
               Defendant.                   )
       ID No. 1207020480                    )



            COMMISSIONER'S REPORT AND RECOMMENDATION

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




Stephen R. Welch, Esq., for David Favata, Esq., Deputy Attorney General,
Department of Justice, for the State of Delaware.

William T. Warren, Pro se.


FREUD, Commissioner
February 24, 2016

The defendant, William T. Warren (“Warren”), pled guilty on November 29, 2012, to
one count of Possession of a Firearm by a Person Prohibited (PFBPP), 11 Del. C. §
1448. He was also facing sixteen additional counts of PFBPP.1 Nolle prosequis were


       1
         Warren had originally faced a number of additional charges which the State had
previously nolle prosequis on October 2, 2012 for lack of merit due to new facts uncovered.
entered by the State on the additional 16 PFBPP charges in exchange for Warren’s
plea. As part of the Plea Agreement the parties agreed that Warren was a habitual
offender and that he should be sentenced to eight years minimum mandatory
incarceration followed by probation. Warren faced a minimum mandatory sentence of
eight years on each of the 17 PFBPP charges, and a maximum of life in prison if he had
he gone to trial and been found guilty as charged. The Court agreed with the
recommended sentence and sentenced Warren accordingly.
      The charges stem from a home invasion during which the victims reported having
numerous firearms stolen. Initially the victims identified Warren and his co-defendant,
Anthony Richardson (“Richardson”), as the perpetrators of the home invasion and theft.
Warren and Richardson were quickly stopped by the police based upon the victims’
description of their vehicle. Warren was the driver of the vehicle. Once stopped, the
police were able to see the stolen firearms in plain view on the car’s back seat. Warren
and Richardson were then charged with multiple offenses including Robbery and Theft
along with PFBPP. Subsequently, the victims changed their report and admitted that
Warren and Richardson had not stolen the firearms but that the victims had offered
Warren and Richardson a reward for recovering the weapons. Warren and Richardson
successfully recovered the firearms but the victim failed to give the promised reward
so Warren and Richardson kept the weapons. Consequently, the victims then called
the police and identified the defendants as having the weapons in their vehicle leading
to their arrest with the weapons in the car. Warren was a person prohibited from
possessing a firearm due to his previous felony convictions and his admitted habitual
offender status. For this reason Warren would have faced a minimum mandatory
sentence of eight years in prison on each PFBPP charge and the possibility of life in
prison had he been found guilty.

                                           2
      Clearly, given the evidence, Warren’s plea was extraordinarily beneficial to him.
Warren did not appeal his conviction or sentence to the Delaware Supreme Court.
Instead he filed the pending motion for postconviction relief pursuant to Superior Court
Criminal Rule 61 on March 19, 2013 in which he alleges, in part, ineffective assistance
of counsel.
      The matter was set for briefing and Warren’s trial counsel responded to the
claims of ineffective assistance of counsel. Next Warren moved to amend his motion
to add additional grounds for relief. The motion was granted and trial counsel was
given an opportunity to reply to the new allegation. The State also responded to the
motion and Warren filed a response. Next, prior to the matter being set for decision,
Warren filed a motion for Appointment of Counsel, which was granted and Alexander
Funk, was appointed to represent Warren in his motion. After reviewing the file,
appointed counsel determined that there were no meritorious grounds for relief and
moved to withdraw as counsel. He subsequently filed a memorandum with the Court
detailing his review of the case and Warren’s arguments. On October 7, 2015 the
Court granted appointed counsel’s motion to withdraw.
                          WARREN’S CONTENTIONS
      In his original motion filed April 11, 2013 Warren raised a variety of claims, all
grouped together under one ground for relief;
      Ground One:          Ineffective Assistance of Counsel.
                           Defense counsel failed to consult with Movant about the
                           right to appeal.

                           Defense Counsel and State promised Movant on November
                           29, 2012 that Movant would receive 18 month Level 3
                           Probation sentence - the same sentence offered to co-
                           defendant Anthony Richardson.


                                           3
                         Defense Counsel pressured Movant to provide information
                         to assist his case and gain a more favorable plea offer for
                         movant.

                         Brady Material not requested by Defense Counsel.

                         Defense Counsel did not file Motion to Suppress.

                         Defense Counsel Failed to Develop Mitigating Evidence.

      On May 15, 2013 Warren filed an amendment to his motion seeking to
incorporate an affidavit by Movant that “outlines a series of questions” that Movant
would like Defense Counsel to answer, to-wit. It is listed as ground two.

      Ground Two:        Defense Counsel should not recommend to a defendant
                         acceptance of a plea unless appropriate investigation and
                         study of the case has been completed. Do you agree or
                         disagree?

                         An appropriate investigation involves interviewing the
                         victims and visiting the crime scene. Were these two things
                         included in your investigation?

                         Are you aware that Brady material is a part of Due Process?

                         Did you file for, and provide to Movant, Brady material?

                         Defense Counsel should not misrepresent matters of fact or
                         law.

                         Important rights of the accused can be protected and
                         preserved only by prompt legal action. Defense Counsel
                         should consider all procedural steps which in good faith may
                         be taken, including, for example, Motion for Pre-Trial
                         Release; Motion for Change of Venue or Continuance;
                         Motion to Suppress Evidence.


                                         4
                                  Motion to Suppress Movant’s Statement no filed.

                                  Defense Counsel did not keep Movant promptly informed
                                  regarding developments in the case and the progress of
                                  preparing the defense.

                                  Defense Counsel did not provide copies of the statements
                                  from the alleged victims.

                                  Certain decisions relating to a case are ultimately for the
                                  Movant to decide and Defense Counsel to decide. The
                                  decisions to be made by Movant after consultation with
                                  Defense Counsel include: what plea to enter; whether to
                                  accept a plea agreement; whether to waive jury trial;
                                  whether to testify in his or her own behalf; and whether to
                                  appeal.

                                  Movant’s desire to appeal.

          As noted above, after reviewing the two grounds for relief were meritless and
that appointed counsel concluded that Warren’s time were no legitimate grounds for
relief.
                                           DISCUSSION
          Under Delaware law, this Court must first determine whether Warren has met
the procedural requirements of Superior Court Criminal Rule 61(I) before it may
consider the merits of his postconviction relief claim.2 This is Warrens’ 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 Warren’s claims were raised at the plea, sentencing, or on direct appeal.

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

                                                   5
Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause for the
default and prejudice.       To some extent each of Warren’s claims are based on
ineffective assistance of counsel; therefore, he has alleged cause for his failure to have
raised them earlier.
       At this point, Rule 61(i)(3) does not bar relief as to Warrens’ grounds for relief,
provided he demonstrates that his counsel was ineffective and that he was prejudiced
by counsel’s actions. To prevail on his claim of ineffective assistance of counsel,
Warren 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 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


       3
           466 U.S. 668 (1984).
       4
           Id. at 687.
       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.)).

                                                6
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 Warren has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective. I find trial counsel’s affidavit and appointed counsel’s motion
to withdraw, in conjunction with the record, more credible that Warrens’ self-serving
claims that his counsel’s representation was ineffective. Warrens’ counsel clearly and
unequivocally denies the allegations. Furthermore, appointed counsel thoroughly
reviewed the record in this case an concluded that none of Warren’s claims were
meritorious and that no other meritorious claims could be found.
       As noted, Warren was facing the possibility of life in prison had he been
convicted, and the sentence and plea were reasonable under all the circumstances,
especially in light of the overwhelming evidence against him. Prior to the entry of the
plea, Warren and his attorney discussed the case. The plea bargain was clearly
advantageous to Warren. Counsel’s representation was certainly well within the range
required by Strickland. Additionally, when Warren 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,


       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.
       10
          Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (Del. 1994)).

                                                  7
Warren has failed to establish that his counsel’s representation was ineffective under
the Strickland test.
       Even assuming, arguendo, that counsel’s representation of Warren was
somehow deficient, Warren 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, Warren simply asserts that his counsel was ineffective.
His statements are insufficient to establish prejudice, particularly in light of the
overwhelming evidence against him. Therefore, I find Warrens’ ground for relief are
meritless.
       To the extent that Warren 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 Warren whether he understood the nature of the charges, the
consequences of his pleading guilty, and whether he was voluntarily pleading guilty.
The Court asked Warren 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 whether he gave truthful
answers to all the questions on the form. The Court asked Warren if he had discussed
the guilty plea and its consequences fully with his attorney. The Court asked Warren
if he was giving the plea of his own free will because he was satisfied that the State had

       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).

                                               8
sufficient evidence to convict him. The Court also asked Warren if he was satisfied
with this counsel’s representation. Warren answered each of these questions
affirmatively.13 I find counsel’s representations far more credible than Warrens’ self-
serving, vague allegations.
      Furthermore, prior to entering his guilty plea, Warren signed a Guilty Plea Form
and Plea Agreement in his own handwriting. Warrens’ 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. Warren 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 Warren entered his guilty plea knowingly and voluntarily and that Warrens’
first ground for relief are completely meritless.
                                      CONCLUSION
      I find that Warrens’ counsel represented him in a competent and effective
manner and that Warren has failed to demonstrate any prejudice stemming from the
representation. I also find that Warrens’ guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Warrens’ motion for post conviction
relief as procedurally barred and completely meritless.


                                                    /s/Andrea M. Freud
                                                    Commissioner

AMF/jb
oc: Prothonotary

      13
           State v. Warren, (November 29, 2012) Tr. at 6-9.
      14
           Sommerville 703 A.2d at 632.

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