IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1405012220
In and for Kent County

STATE OF DELAWARE,

v.
RKl4-05-()586-()l

MARVIN D. SPADY, Drug Deal (F)

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

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

Gregory R. Babowal, Esq., Deputy Attorney General, Department of Justice, for the
State of DelaWare.

Marvin D. Spady, Pro se.

FREUD, Comrnissioner
November 28, 2018

The defendant, Marvin D. Spady (“Spady”), pled no contest on January 6,
2016, to one count of Drug Dealing, 16 Del. C. § 4753(2). He Was also facing three
additional counts of Drug Dealing, two counts of Conspiracy Second Degree, one
count of Possession of Marijuana, and one count of Possession of Drug
Paraphernalia. Spady faced the possibility of life in prison as an habitual offender
had he gone to trial and been found guilty of all the counts against him. Nolle

prosequis were entered by the State on the additional charges in exchange for Spady’ s

State v. Spady
ID No. 1405012220
November 28, 2018

plea. On January 6, 2016, the Court sentenced Spady to eight years incarceration at
Level V, suspended after three years at Level V incarceration effective May 16, 2014,
followed by one year supervision at Level III. Spady did not appeal his conviction
or sentence to the State Supreme Court instead on July 26, 2016, Spady filed a pro
se Motion for Postconviction Relief pursuant to Rule 61 alleging, in part, ineffective
assistance of counsel.

A briefing schedule was established and Spady’s former counsel and the State
filed responses to his motion. Also Spady filed replies to the former counsel’s
affidavit and the State’s response. While the matter was in briefing Spady was
released from incarceration and began serving the probationary portion of his
sentence. Probation did not go well for Spady and he was found in violation of his
probation three times. While the various violation of probation hearings were
pending, Spady’s motion for postconviction relief was stayed. Finally on October 24,
2018 at his final violation of probation hearing, Spady was discharged from his
probation and the postconviction motion was processed for decision by the Court
staff.

FACTS

The charges stem from a search conducted at the Traveler's Inn Motel in
Milford, Delaware. The Milford Police Department obtained a search warrant after
using an informant to make controlled purchases at the motel. Spady and
codefendant Jennifer M. Sparacio were located inside the room of the Traveler's Inn.
Police found 3.5 grams of heroin, $1,737.00 in a bundle, and a bag containing a

digital scale and plastic baggies. Police also searched a vehicle which was known to

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State v. Spady
ID No. 1405012220
November 28, 2018

be operated by Spady. Marijuana (0.6 grams) was found inside the vehicle.1

SPADY’S CONTENTIONS

In his motion, Spady raises the following grounds for relief:

Ground one:

Ground two:

Ground three:

Ground four:

 

Denied right to a fair trial.

The Courts by and through Judge Clark at
evidentiary hearing allowed evidence and
information to the use of the first informant whom
was suppressed in order by Judge Witham.

Denied Due Process/Prosecutorial
Misconduct.

The Courts improperly permitted the State to be able
to introduce search warrant by denying Motion in
Limine. On Oct 12, 2015 the Court issued an Order
suppressing all evidence related to use of first
informant in the investigation

Violation of Due Process 5“‘, 6‘h, 14th Amend.
US/Del. Const. Prosecutorial Misconduct.

The courts and prosecution illegally introduce
evidence of first informant, switched the Judge, and
gave def another Judge Whom was not familiar with
case. Judge Witham stated on Oct. 7, 2015 the case
was to stay with him.

Brady Violation.

In order dated 10-12-15 at time the Order of 10-24-
14 identity of C.I. the State was aware, that two
informants were involved in the case or as part of an
underlying criminal activity. The State did not make

1 State v. Spady, Del. Super., ID No. 1405012220, Aff. of Probable Cause, D.I. 1.

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ID No. 1405012220
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Ground five:

the Court aware of a second informant thus the State
withheld valuable Brady Material.

Denial of effective assistance of Counsel.

In order dated Oct. 12, 2015 speaking on the Order
dated 10-24-14 Identity of C.I. Defense counsel for
Spady was in possession of a police report that
referenced two informant and thus was also aware
that two informants were involved in the case.

Ground six: Ineffective assistance of counsel.

Had defense counsel reviewed police reports and put
in Motion for Identity of all informants in the
investigation When the State which didn’t
acknowledge the second informant to the court the
Judge would’ve suppressed all informants in the
case. Counsel was ineffective by not knowing there
was two informants until told by Def. asking him to
read police reports and the Judge informing him the
eve before trial that him & the State knew for over
a year or didn’t know about second informant. See
all Police reports C11 and C12 were directly involved
in transactions which Def was charged with. See
Controlled buy report charge on the Def page 2
report date 4-11-14 Complaint #51-14-003791 and
see all probable cause for all search warrants
refering (sic) to only C.I. l and C.I. 2 not an extra
C.I. Det Lord in all the investigation only refer to
C.I. l and C.I. 2.

DISCUSSION

Under Delaware Law this Court must first determine whether Spady has met

the procedural requirements of Superior Court Criminal Rule 6l(i) before it may

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ID No. 1405012220
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consider the merits of his postconviction relief claim.2 Before reaching the
procedural bars to relief listed in Rule 61(i), a threshold issue must be addressed.
Rule 61(a)(i) “govems the procedure on an application by a person in custody or
subject to future custody under a sentence” at the Superior Court.3 The Delaware
Supreme Court has explained that a person loses standing to move for postconviction
relief under Rule 61 where the defendant is not in custody or subject to future custody
for the underlying offense or challenged sentence.4 Clearly since his probation has
been discharged, Spady is no longer in custody or subject to future custody under the
sentence he is seeking to overtum, therefore he clearly lacks standing to pursue his
claim for relief under Rule 61. Thus there is no need to reach the merits of his claim.
Nevertheless I will briefly address Spady’s motion for the benefit of the Court.
This is Spady’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

 

2 Bailey v. State, 588 A.2d 1121, 1127 (Del.1991); Younger v. State, 580 A.2d 552, 554
(Del. 1990).

3 Super. Ct. Crim. R. 61(a)(i).

4 State v. Ruiz, 956 A.2d 643 (TABLE), 2008 WL 1961187 at *2 (Del. Supr. May 7,
2008), (citing Pumphrey v. State, 2007 WL 3087405 at *1 (Del. Supr. Oct. 23, 2007)). See also
State v. Silochan, 2008 WL 361848 (Del. Super. Feb. 5, 2008) denying postconviction relief
under Rule 61 where a defendant claimed he was not informed he faced deportation. Defendant
was no longer subject to custody and deportation was a collateral consequence. Defendant had
no standing. See also Ruiz v. State, 23 A.3d 866 (TABLE), 2011 WL 2651093 at *2 (Del. Supr.
July 6, 2011); State v. Cammille, 2014 WL 2538491 at *1 (Del. Super. June 3, 2014); Baltazar
v. State, 108 A.3d 1224 (TABLE), 2015 WL 257334 at *3 (Del. Supr. Jan. 20, 2015); State
v. Jackson, 2016 WL 7076990 at *1 (Del. Super. Dec. 5, 2016).

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relief be presented in initial Rule 61 motion, are met. None of Spady’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. Only Spady’s
fifth and sixth claims are based on ineffective assistance of counsel; therefore, he has
alleged cause for his failure to have raised them earlier. Spady’s remaining claims
are clearly barred due to his failure to have raised them earlier.

At this point, Rule 61(i)(3) does not bar relief as to Spady’s fifth and sixth
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, Spady must meet the two-prong test of Strickland v.
Washington.5 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." 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.7 In addition,

Delaware courts have consistently held that in setting forth a claim of ineffective

5 466 U.S. 668 (1984).

6 Id. ar 687.

7 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60
(Del. 1988))(citations omitted).

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ID No. 1405012220
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assistance of counsel, a defendant must make concrete allegations of actual prejudice
and substantiate them or risk summary dismissal.8 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.9 This
standard is highly demanding.l° Stricklana' mandates that, when viewing counsel’s
representation, this Court must endeavor to “eliminate the distorting effects of
hindsight.”ll

Following a complete review of the record in this matter, it is abundantly clear
that Spady 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 Spady’s self-serving claims that his counsel’s
representation was ineffective. Spady’s counsel clearly denies the allegations.

As noted, Spady 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 evidence against him. Prior to the entry of the plea, Spady
and his attorney discussed the case. The plea bargain was clearly advantageous to

Spady. Counsel’s representation was certainly well within the range required by

 

8 See e.g., 0utten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL
466465 at *1 (Del. Supr.)).

9 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

10 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S.
365, 383 (1986)).

11 Strickland, 466 U.S. at 689.

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ID No. 1405012220
November 28, 2018

Strickland. Additionally, when Spady entered his no contest 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.l Consequently, Spady has
failed to establish that his counsel’s representation was ineffective under the
Strickland test.

Even assuming, arguendo, that counsel’s representation of Spady was
somehow deficient, Spady 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.2 In an attempt to show prejudice, Spady 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 Spady’s grounds for relief are
meritless.

To the extent that Spady 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.3 At the

guilty-plea hearing, the Court asked Spady whether he understood the nature of the

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

2 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del.
1990)).

3 Godinez v. Moran, 509 U.S. 389, 400 (1993).
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ID No. 1405012220
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charges, the consequences of his pleading no contest, and whether he was voluntarily
pleading no contest. The Court asked Spady if he understood he would waive his
constitutional rights if he pled no contest; 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
Spady if he had discussed the no contest plea and its consequences fully with his
attorney. The Court asked Spady if he was entering into the plea as he was convinced
that the State had sufficient evidence against him that a reasonable jury could find
him guilty. The Court also asked Spady if he was satisfied with this counsel’s
representation Spady answered each of these questions affirmatively4 I find
counsel’s representations far more credible than Spady’s self-serving, vague
allegations

Furthermore, prior to entering his no contest plea, Spady signed a Guilty Plea
Form and Plea Agreement in his own handwriting. Spady’s signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
no contest and that he freely and voluntarily decided to plead guilty to the charges
listed in the Plea Agreement. Spady is bound by the statements he made on the
signed Guilty Plea Form, unless he proves otherwise by clear and convincing
evidence.5 I confidently find that Spady entered his no contest plea knowingly and

voluntarily and that Spady’s grounds for relief are completely meritless.

4 State v. Spady, Del. Super., ID No. 140501220 (Jan. 6, 2016) Tr. at 4-10.

5 Sommerville 703 A.2d at 632.

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ID No. 1405012220
November 28, 2018

CONCLUSION

I find that Spady lacks standing to have his motion considered at this time
because he has been discharged from probation and is no longer subject to the
jurisdiction of the Court. I also conclude that Spady’s counsel represented him in a
competent and effective manner and that Spady has failed to demonstrate any
prejudice stemming from the representation, Additionally, I find that Spady’s guilty
plea was entered knowingly and voluntarily. For these reasons I recommend that the
Court deny Spady’s motion for postconviction relief as moot, procedurally barred,

and completely meritless pursuant to Superior Court Criminal Rule 61(a)(l) and

61(i)(3).

/s/ Andrea M. Freud
Commissioner

AMF/dsc
oc: Prothonotary

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