      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,                      )
                                        )
      v.                                )           Cr. ID No. 1403021039
                                        )
SYLVESTER PETTYJOHN,                    )
        Defendant.                      )

                          Date Submitted: February 6, 2016
                           Date Decided: March 1, 2016

               Upon Defendant’s Motion for Postconviction Relief
                                 DENIED

      Upon consideration of the Motion for Postconviction Relief filed by

Sylvester Pettyjohn (“Defendant”); Rule 61 of the Superior Court Rules of

Criminal Procedure; the facts, arguments and legal authorities set forth in the Rule

61 Motion; statutory and decisional law; and the entire record in this case, the

Court finds as follows:

      1.    On October 1, 2014, following a two day trial, a jury found Defendant

guilty of Drug Dealing. At trial, Defendant was represented by Ross Flockerzie,

Esquire (“Trial Counsel”).

      2.    On October 10, 2014, the State filed a Motion to Declare Defendant

an Habitual Offender, which the Court granted on March 27, 2015 at Defendant’s

sentencing. Defendant was sentenced to four (4) years at Level V followed by six

(6) months at Level IV.
         3.      In April 2015, Defendant filed a timely appeal with the Delaware

Supreme Court, which affirmed this Court’s decision on October 27, 2015, finding

that Defendant’s appeal was “wholly without merit and devoid of any arguably

appealable issue.”1

         4.      On January 25, 2016, Defendant filed a Motion for Postconviction

Relief (“PCR Motion”) as a self-represented litigant.           In his PCR Motion,

Defendant asserts ineffective assistance of counsel with respect to Trial Counsel’s

representation as follows: (1) failure to file a motion to suppress; (2) failure to file

a motion to compel; (3) violating Defendant’s Sixth Amendment constitutional

rights by “agreeing with the State” that Defendant’s “accuser” (the individual who

purchased drugs from Defendant) did not need to testify at Defendant’s trial.

         5.      Defendant is not entitled to appointed counsel for his PCR Motion.

Rule 61(e)(1) provides that a judge must appoint counsel for an indigent movant’s

first timely PCR Motion if the motion seeks to set aside: (i) a conviction after a

trial that has been affirmed by final order upon direct appellate review for a crime

designated as a class A, B, or C felony; (ii) a conviction after a trial that has been

affirmed by final order upon direct appellate review and resulted in the imposition

of a sentence under 11 Del. C. § 4214(b); or (iii) a sentence of death.2 Defendant’s



1
    Pettyjohn v. State, 126 A.3d 1110 (Table) (Del. 2015).
2
    Super. Ct. Crim. R. 61(e)(1).
                                                  2
                                                                            3
conviction was affirmed by final order upon appellate review;                   however,

Defendant’s Drug Dealing conviction is for a Class D Felony under 16 Del. C. §

4754(1). Moreover, although Defendant was declared an habitual offender, he was

not sentenced under 11 Del. C. § 4214(b), nor was he sentenced to life

imprisonment or a sentence of death. Accordingly, Defendant is not entitled to

counsel under Rule 61(e)(1).

         6.     Defendant is also not entitled to counsel under Rule 61(e)(3), which

provides that a judge has discretion to appoint counsel if the judge determines:

               (i) the motion is an indigent movant’s first timely postconviction
               motion and request for appointment of counsel; (ii) the motion
               seeks to set aside a judgment of conviction after a trial that has
               been affirmed by final order upon direct appellate review; (iii)
               the motion sets forth a substantial claim that the movant
               received ineffective assistance of trial or appellate counsel; (iv)
               the motion sets forth a substantial claim that the movant is in
               custody in violation of the United States Constitution or the
               Delaware Constitution; (v) granting the motion would result in
               vacatur of the judgment of conviction for which the movant is in
               custody; and (vi) specific exceptional circumstances warrant the
               appointment of counsel.4

Defendant has not met requirement (i) because Defendant has not yet requested

appointed counsel. Defendant also has not met requirements (iii) and (vi) for the

reasons stated below.




3
    See Pettyjohn, 126 A.3d 1110.
4
    Super. Ct. Crim. R. 61(e)(3).
                                             3
       7.      Defendant’s claims that Trial Counsel was ineffective for failing to

file a motion to suppress and a motion to compel are conclusory and without merit.

First, Defendant fails to specify what evidence Trial Counsel should have moved to

suppress and compel. Second, the strategic decision to file a motion to suppress or

a motion to compel is not the type of decision that is within the client’s ultimate

authority;5 therefore, Trial Counsel was not required to file these motions merely

because Defendant requested that Trial Counsel do so.6 Third, the record does not

reflect that it was unreasonable for Trial Counsel to refrain from filing either a

motion to suppress or a motion to compel and Defendant fails to allege any

prejudice he suffered as a result to establish ineffective assistance of counsel under

Strickland.7


5
  See e.g., Taylor v. State, 28 A.3d 399, 406 (Del. 2011) (internal citations omitted) (“A criminal
defendant has ‘ultimate authority to make certain fundamental decisions regarding the case, as to
whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.’ . . .
[because] these choices ‘implicate inherently personal rights which would call into question the
fundamental fairness of the trial if made by anyone other than the defendant.’”).
6
  See id. at 405-06 (internal citations omitted) (“When an attorney represents a defendant, the
authority to manage the day-to-day conduct of the trial generally rests with the attorney. An
attorney who represents a criminal defendant has an ‘overarching duty to advocate the
defendant’s cause and more particular duties to consult with the defendant on important
decisions.’ To be sure, the attorney’s duty to consult with the defendant regarding ‘important
decisions’—including questions of overarching defense strategy—does not require counsel to
obtain the defendant’s consent to ‘every tactical decision.’”).
7
  The standard used to evaluate claims of ineffective counsel is the two-prong test articulated by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), as adopted in
Delaware, see Albury v. State, 551 A.2d 53 (Del. 1988). The movant must show that (1) trial
counsel’s representation fell below an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for trial counsel’s errors, the result of the proceeding would have
been different. Strickland, 466 U.S. at 687. Failure to prove either prong will render an
ineffective assistance of counsel claim insufficient. Id. at 688; Dawson v. State, 673 A.2d 1186,
1196 (Del. 1996). Moreover, the Court shall dismiss entirely conclusory allegations of
                                                 4
       8.     Defendant’s Sixth Amendment claim is also without merit.

Particularly, the officers at Defendant’s trial testified to their observations of a

hand-to-hand drug transaction involving Defendant. Accordingly, although the

purchaser of the drugs did not testify at Defendant’s trial, there was no right to

confrontation violation when the officers testified to their own observations and the

State did not seek to admit any statements made by the purchaser.8

       9.     Moreover, to the extent that Defendant claims that Trial Counsel was

ineffective for “agreeing with the State” that the purchaser did not need to testify,

Defendant has failed to establish that Trial Counsel had such an agreement with the

State and that even if Trial Counsel did, that Trial Counsel’s performance was

unreasonable or that Defendant suffered prejudice as a result.

       10.      Accordingly, Defendant is not entitled to relief under his PCR

Motion because Defendant has failed to establish that Trial Counsel’s performance

fell below an objective standard of reasonableness or that Defendant suffered any

prejudice as a result.




ineffective counsel. Younger v. State, 580 A.2d 552, 555 (Del. 1990); Jordan v. State, 1994 WL
466142, at *1 (Del. Aug. 25, 1994).
8
  See Archy v. State, 976 A.2d 170 (Del. 2009) (citing Crawford v. Washington, 541 U.S. 36, 36,
(2004) (providing that the “Confrontation Clause bars ‘admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to testify, and the defendant had a
prior opportunity for cross-examination.’”).



                                               5
     NOW, THEREFORE, this 1st day of March, 2016, Defendant Sylvester

Pettyjohn’s Motion for Postconviction Relief is hereby DENIED.

     IT IS SO ORDERED.

                                  Andrea L. Rocanelli
                                  ____________________________________
                                  The Honorable Andrea L. Rocanelli




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