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acknowledging common defense strategy of exposing prior convictions to lessen impact on jury and avoid the State controlling the information
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ID# 9711014716
Submitted: October 4, 2001
Decided: January 31, 2002
On Defendant's pro se Motion for Postconviction Relief.
Denied.
Maria Knoll, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State of Delaware.
William Johnson, Delaware Correctional Center, Smyrna, Delaware.
Pro Se Defendant.
OPINION
I. Introduction
William T. Johnson, Jr. (hereinafter "the Defendant") has filed this pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61. At the request of this Court, the State filed a Response and the Defendant's trial attorney, Kevin J. O'Connell (hereinafter "defense counsel"), filed an affidavit in support of his representation. Following those submissions, the Defendant filed a sundry of supplemental pleadings in addition to his original motion for postconviction relief. Upon consideration of all these submissions, the Defendant's motion for postconviction relief is denied.
II. Procedural Posture
On January 5, 1998 the Defendant was indicted for 12 felonies; three counts of Robbery First Degree, three counts of Possession of a Firearm During the Commission of a Felony (hereinafter "PFDCF"), three counts of Conspiracy Second Degree, and three counts of Wearing a Disguise During the Commission of a Felony. After a three day jury trial, the Defendant was only convicted for one of the three robberies for which he was indicted, which entailed one count of Robbery in the First Degree, one count of Conspiracy in the Second Degree, and one count of PFDCF. The Defendant was acquitted of all the other remaining charges. On December 11, 1998, the Defendant was sentenced to twenty years incarceration at Level 5 for the Robbery First Degree, three years at Level 5 for the PFDCF offense, and one year at Level 5 for the Conspiracy Second Degree offense, which is to be suspended for one year at Level 3. The Defendant subsequently filed a motion for modification of sentence, and a motion to vacate and/or dismiss his sentence, both of which were denied by this Court. The Defendant's pro se direct appeal to the Supreme Court of Delaware raised four grounds essentially claiming that the trial court committed error. Specifically, he asserted that the trial court committed reversible error by (1) refusing to suppress certain statements that the Defendant allegedly made in violation of his Miranda rights; (2) "failing to follow the proper procedures before admitting his statements into evidence;" (3) "amending the indictment during trial;" and (4) "incorrectly instructing the jury on several issues, including the accomplice liability issue." In its twelve page Order, the Court in essence found "no merit to any of the issues raised by [the Defendant]."
This Court denied the Defendant's February 3, 1999 motion to vacate his sentence as his case was presently on appeal. Therefore, this Court lacked jurisdiction to rule upon his motion, and accordingly notified him by letter dated May 27, 1999, that his motion to vacate his sentence was denied.
Johnson v. State, Del. Supr., No. 12, Holland, J. (November 2, 1999) (ORDER).
Id. at 2.
Id.
III. Facts
On November 23, 24, and 26, 1997, three convenience store armed robberies occurred in New Castle County, Delaware. During the second robbery, the store clerk on duty that night observed the robber get into the front seat passenger side of the car. The clerk immediately copied down the getaway car's license plate number, and gave it to the police who then checked the license plate number with the Delaware Department of Motor Vehicles. After determining that the car involved in the November 24th robbery was registered to the Defendant, the police commenced surveillance on his vehicle. On November 26, 1997, within a day of initiating that surveillance, the police observed the Defendant's car, with four males inside, circle another convenience store four times. When the car stopped, the police watched the front seat passenger emerge from the car, put a disguise on his face, and then enter the store. A few minutes later, the police again watched the same man leave the store with the disguise intact. Immediately after these events, another police officer confirmed with the store clerk that a robbery had just occurred, to which the surveillance team of police officers stopped the car with the four males inside, one of whom was the Defendant.Inside the car, the police found a gun on the lap of the front seat passenger, who was later identified as the Defendant's cousin, Juan Carter. The Defendant was then taken back to the Troop 2 police barracks, where he told Detective Vincent Fiscella (hereinafter "Fiscella") that he did not wish to make any statements. Fiscella complied with this request. Later, while waiting for presentment at the Justice of the Peace Court, the Defendant initiated conversation and asked Fiscella how the police knew to follow his vehicle. Fiscella informed the Defendant that the police had received a license plate number after an earlier robbery. The Defendant then told Fiscella that it was not possible to run a temporary license plate tag, and that he thought someone had called the police to "snitch on" the Defendant. The Defendant then told Fiscella that he was "just a driver" and that he could "only be charged with conspiracy" because his cousin "Juan went inside the [stores] and did the stickups."
Since the Defendant was not interviewed, he was not read his Miranda warnings.
The Defendant, while testifying, denied being with his cousin at the time of the first two robberies, and also denied having any knowledge of the November 26th robbery. The Defendant testified that he and the other men in the car were going to a movie, with no intentions of robbing a convenience store, when one of the men apparently asked the driver to pull into the Super Soda Center parking lot to go to a liquor store located next door. The Defendant allegedly believed that the man was going into the liquor store, and knew nothing about him going into the convenience store to commit robbery. The Defendant also denied making any of the incriminating statements, about which Fiscella testified.
Prior to the trial the Defendant filed a motion to suppress these statements, and this Court held a suppression hearing to determine the statements' admissibility as well as the actual notes made by Fiscella. The Court subsequently ruled that the substance of the Defendant's statements made to Fiscella were admissible.
IV. Rule 61 Motion
The Defendant has now filed the instant motion for postconviction relief, asserting numerous grounds for relief. The Defendant's assertions contained in a handwritten document of several hundred pages, are difficult to decipher but appear to allege the following nine claims:
1. Ineffective assistance of counsel because his counsel failed to file a motion for a speedy trial and suppression motions.
2. Ineffective assistance of counsel because counsel failed to file a severance motion and "the defendant's acquittal on the other robbery charges would have precluded his convictions on the remaining charges due to the "fruit of the poisonous tree doctrine."
3. Reversible error was committed by the State, as it violated Superior Court Rule 16 by failing to disclose "Fiscella's original hand-written notes to the defense and the State's admission of this evidence in rebuttal and ensuing remarks in closing were prejudicial. . . and "counsel was ineffective in neglecting to move for a mistrial and the trial court abused its discretion for not sua sponte ordering a mistrial as it was highly prejudicial to allow the trial to continue and let both prosecutors use those inadmissible statements in their closing arguments to the jury. . . ."
4. Rule 16 violation as the State failed to disclose Detective Daniel McColgan's report to the defense and failed to object to Detective McColgan's testimony in its entirety.
5. Judicial abuse of discretion — in failing to hold a Getz hearing regarding the defendant's previous convictions and in failing to issue a cautionary instruction to the jury regarding his record. Defense counsel also failed to challenge prior conviction evidence and the State committed prosecutorial misconduct by referring to Defendant's prior conviction in closing arguments.
6. Prosecutors committed reversible error and misconduct by making improper remarks during closing arguments . . . and defense counsel was ineffective by failing to object to these errors.
7. Ineffective assistance of counsel — counsel failed to object to the defendant's habitual offender status, and illegal sentence. The State and the trial judge committed double jeopardy by changing the guilty verdicts, and caused the defendant to be sentenced on charges, for which he was acquitted.
8. Trial court committed double jeopardy when the defendant was sentenced to both Robbery First Degree and PFDCF, and that counsel was ineffective in raising the issue at sentencing.
9. Fundamental error was committed regarding the defendant's indictment, and defense counsel was ineffective in failing to move to dismiss the indictment. It is upon these nine allegations that the Court will base its opinion.
V. DISCUSSION
When considering a Motion for Postconviction Relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of any individual claim.To protect the integrity of the procedural rules, ordinarily the Court should not consider the merits of a postconviction claim where a procedural bar exists. This Court will first address the Defendant's claims, which are procedurally barred under Rule 61(i), and will reference the claims by the numerical designation previously listed in the opinion.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Flamer v. State, 585 A.2d 736, 745 (Del. 1990); Winn v. State, Del. Supr., No. 257, 1992, Moore, J. (Feb.9, 1993) (ORDER); Webster v. State, Del. Supr., No. 65, 1992, Horsey, J. (April 1, 1992) (ORDER).
State v. Gattis, Del. Super., Cr.A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (citing Younger v. State, 580 A.2d at 554; Saunders v. State, Del. Supr., No. 185, 1994, Walsh, J. (Jan. 13, 1995) (ORDER)); Hicks v. State, Del. Supr., No. 417, 1991, Walsh, J. (May 5, 1992)
A. The Defendant's third, eighth, and ninth claims are barred pursuant to Superior Court Criminal Rule 61(i)(4).
Under Superior Court Criminal Rule 61(i)(4), "[a]ny ground for relief that was 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, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." This narrowly defined "interest of justice" exception requires the movant to show that subsequent legal developments have revealed that the trial court lacked authority to convict or punish him.
Super. Ct. Crim. R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
In this case, the Defendant previously raised his third, eighth, and ninth claims in his direct appeal to the Supreme Court of Delaware. In its Order, the Supreme Court held that the police were not required to administer Miranda warnings to the Defendant because the Defendant's statements to Fiscella were spontaneous, and there was a lack of police-initiated interrogation. The Court also held that the trial court was not erroneous in failing to consider the voluntariness of the Defendant's (ORDER). statements since the Defendant (1) never contested the voluntariness of these statements, and alternatively (2) denied ever making these statements. Therefore, the trial judge had no basis to consider the voluntariness of these statements, since the Defendant denied ever making them.
Johnson v. State at 5.
Johnson v. State at 4-6.
The Defendant nonetheless has raised this contention again under his third ground for postconviction relief, but pursuant to Rule 61(i)(4), this claim is procedurally barred. The trial court held a hearing to determine the admissibility of these assertions, and found that Fiscella did not initiate any conversation with the Defendant, and that his statements to Fiscella were spontaneous and were not the result of a custodial interrogation, which would have required Miranda rights.
The Defendant's eighth postconviction claim, that this Court erroneously sentenced him on both the first degree robbery and the PFDCF charge, was also previously raised in his direct appeal. In its Order, the Supreme Court noted that Delaware's General Assembly intended to impose separate punishments for a PFDCF offense and any underlying felony, which would include robbery. Accordingly, the Court held that the trial court did not violate the double jeopardy principle for imposing separate sentences for the two separate offenses because the intent of the legislature was to impose separate punishments for a PFDCF charge and any underlying felony, as noted in Lecompte v. State. In the Defendant's case, Robbery First Degree is the underlying felony with the PFDCF offense, thus this contention fails.
Johnson v. State at 9.
Johnson v. State at 9(citing Lecompte v. State, 516 A.2d 898 (Del. 1986)).
The Defendant's ninth postconviction claim, that a fundamental error was committed regarding the Defendant's indictment, was also raised in his direct appeal, and the Court found that the indictment's amendment was executed prior to the commencement of the State's opening statements, and the amendment was merely a typographical error amending a charge which read "§ 1447" to "§ 1447A." Because the amended indictment did not allege a new or an additional offense, the Court held that it was not plain error for the trial court to have allowed the amendment to proceed. The Court also noted that the Defendant did not object to the indictment's amendment at that phase, and as such, he effectively waived his right to object to it in a subsequent appeal or proceeding.
Johnson v. State at 8.
All three of these claims have been previously raised by the Defendant at his trial, or in his direct appeal, and have likewise been adjudicated by the Supreme Court. The Defendant has not triggered the "interest of justice exception" in this motion, as he has not asserted or established that the trial court "lacked jurisdiction to convict or punish him," which is presumably because the trial court had proper jurisdiction of the Defendant. Because there has not been any new, subsequent legal developments asserted by the Defendant, which would prompt this "interest of justice" exception, the Defendant's third, eighth, and ninth claims remain procedurally barred under Superior Court Criminal Rule 61(i)(4), and this Court will not revisit the issues to address their individual merits.
B. The Defendant's Ineffective Assistance of Counsel Claims
The Defendant's six other claims raise varying assertions of ineffective assistance of counsel. Proof of an ineffective assistance of counsel claim "requires showing that counsel's errors were so serious as to deprive the Defendant of a fair trial, a trial whose result is reliable." A movant must show "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
The Defendant's 1st, 2d 4th, 5th, 6th, 7th, and 9th claims assert justifications for his ineffective assistance of counsel claims. The Court nonetheless notes that none of these claims, standing alone, would be properly raised in this motion for postconviction relief, as they would all be procedurally barred pursuant to Superior Court Criminal Rule 61(i)(3), which bars claims that could have been brought in the proceedings leading to the judgment of conviction, or in a defendant's first appeal to the Supreme Court of Delaware.
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland v. Washington, 466 at 688, 694.).
The Defendant's first assertion claims that defense counsel failed to file a series of motions on his behalf, which would have included a Motion for Speedy Trial, a Motion to Suppress, and a Motion for Severance. At the outset, the Court finds that defense counsel's decision to not file a Motion for a Speedy Trial, was not ineffective representation, as the Defendant received a trial within nine months of his indictment, and a nine month delay is not sufficient evidence for a Sixth Amendment claim of a denial of a right to speedy trial. The Defendant was indicted on January 5, 1998, his original trial date was set for August 11, 1998 and was continued, because a State's witness was unavailable at that time, until September 29, 1998. This continued date was less than eight weeks after the original trial date, and did not have a "prejudicial effect upon [the] defendant beyond that normally associated with a criminal justice system necessarily strained by a burgeoning case load." The Defendant additionally claims that defense counsel was ineffective in failing to file Motions to Suppress evidence. This claim is readily refuted as a suppression hearing was held by the trial court, at the request of defense counsel, to determine whether the Defendant's statements were admissible.
State v. McElroy, 561 A.2d 154, 155-156 (Del. 1989) (holding that for a criminal indictment to be dismissed for unnecessary delay, the delay must be attributable to the prosecution and must be established to have had a "prejudicial effect upon the Defendant beyond that normally associated with a criminal justice system necessarily strained by a burgeoning case load.").
State v. McElroy, 561 A.2d at 155-156(reversing a trial court's dismissal of an information as it was due to a lack of judicial resources over which the State as prosecutor had no control and before the length of delay had implicated the Defendant's constitutional rights to a speedy trial.) In McElroy, the Defendant's trial de novo had been continued several times within a nine month period, and he conceded that the nine month trial delay was insufficient to support a Sixth Amendment claim of denial of a right to a speedy trial.
To the extent the Defendant is also asserting ineffectiveness because a motion to suppress evidence obtained from the automobile stop was not filed, the Court finds that the motion would not have been granted, as the police had observed conduct which clearly provided probable cause to arrest the occupants of the car. Counsel is not required to file motions that clearly have no merit simply because the Defendant desires them to be filed.
Next, the Defendant asserts that defense counsel was ineffective in failing to file a severance motion. The essence of this contention appears to be that since the Defendant was not convicted of the November 23, and 24, 1997, robberies, but was convicted of the November 26, 1997 robbery, he suffered prejudice and was convicted of the third robbery because this Court did not sever the three robberies, and try him on three separate occasions. The Defendant contends that if defense counsel had presented a motion to sever, then he would have been acquitted of the November 26th robbery, just as he was acquitted of the other two robberies. The Defendant has confused the purpose of Superior Court Criminal Rule 8, with his own personal objective for the rule. Rule 8 provides that
[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
Super. Ct. Cr. R. 8.
Here, all of the offenses charged in the Defendant's indictment relate to similar transactions; that of the November 23, 24, and 26, 1997 convenience store robberies, and constitute part of a common scheme or plan. "Where the offenses are of the same general character, involved similar course of conduct and are alleged to have occurred within a relatively brief span of time, it is proper to try the offenses together." Defense counsel stated in his affidavit that
Younger v. State, 496 A.2d 546, 550 (Del. 1985).
[a]ny effort to sever the charges would have been denied by the Court, since it was appropriate for the State to indict all of the robbery and firearm charges together in this case, [and] since [the Defendant] was only found guilty of one of the robberies, it is difficult for him to allege that he suffered prejudice as a result of having all charges heard in one proceeding.
Defense Counsel's affidavit at 2.
When evaluating counsel's conduct, this Court must indulge "a strong presumption that counsel's conduct was professionally reasonable." Here, defense counsel realized that a motion to sever the charges would have no merit under the case law developed in this area, and would inevitably be denied by the Court. Again, defense counsel is not required to file motions, which based upon his experience and knowledge are not legally or factually supportable, even if the Defendant has a different opinion. Here the jury simply convicted the Defendant of the charges for which the State had the strongest evidence and for which the officers had actually observed his conduct. Obviously the jury, as evidenced by its verdict, was able to compartmentalize the evidence as to each of the offenses and there was no prejudice to the Defendant by trying the offenses together. As such, the Court finds defense counsel's decision was a sound one, and made well within the wide range of professionally reasonable conduct.
Albury v. State, 51 A.2d at 59 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).
Fourth, the Defendant asserts that the State violated Rule 16 by failing to disclose Detective McColgan's police report to defense counsel, and that defense counsel was ineffective for failing to object to McColgan's testimony at trial. Detective McColgan's testimony related to the surveillance of the Defendant on November 26, 1997 and thus was obviously relevant and properly admitted. Further, his police report was not discoverable evidence under Rule 16. The Defendant summarily asserts that McColgan's police report was fabricated by the State on the day of trial, but does not present any evidence as proof for this allegation. The Defendant's ineffective assistance of counsel claim similarly fails because defense counsel had no basis to object to Detective McColgan's testimony.
Superior Court Criminal Rule 16(2) states in pertinent part that "this rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses."
The Defendant's fifth claim asserts that defense counsel was ineffective, and the State and this Court were erroneous, for admitting his prior convictions into evidence. Delaware Rule of Evidence 609 states that
(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted but only if the crime (1) constituted a felony under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect or (2) involved dishonesty of false statement, regardless of punishment.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date. . . .
Before this trial, the Defendant had been previously convicted of Second Degree Robbery, Second Degree Forgery, and Felony Theft. These offenses are all felonies and crimes involving dishonesty, and as such, the State would have been entitled to utilize them if the Defendant chose to testify and take the stand. Because these prior convictions were clearly admissible evidence, the Defendant did not suffer from ineffective assistance of counsel when his attorney chose a strategic maneuver to reveal these prior convictions during the direct exam, instead of concealing them.
The tactic of exposing a Defendant's prior convictions, which are clearly admissible evidence, during a direct examination, is often engaged by defense attorneys to lessen the impact of those convictions on the jury. The image presented by a defense attorney often tends to be more agreeable for a jury to hear, than a potential spin the State may place upon the identical convictions.
The trial transcript establishes that once the defense revealed the Defendant's prior convictions, the State never revisited those convictions on cross-examination. As stated earlier, "this Court must indulge a strong presumption that counsel's conduct was professionally reasonable." "[S]trategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Therefore, the Defendant's ineffective assistance of counsel claim, based upon these allegations, is denied.
Albury v. State, 51 A.2d at 59 (citing Strickland v. Washington, 466 U.S. 668, 689 (1984)).
Id. at 690.
The Defendant's sixth claim asserts that defense counsel was ineffective for failing to object to comments made by the State in its closing remarks to the jury. As stated in Hughes v. State, the balance that must be struck between permissible and impermissible prosecutorial comments, calls for judicial discretion. The Supreme
437 A.2d 559, 571 (Del. 1981).
Court held that the trial court:
must prohibit a prosecutor from calling the testimony of statement of a witness or party as a "lie" unless, (a) that is a legitimate inference which may be drawn from the evidence, and (b) the prosecutor relates his argument to specific evidence which tends to show that the testimony or statement is a lie.
Hughes 437 A.2d at 571.
The Hughes court further held that "[i]n reviewing charges of prosecutorial misconduct based on the impermissive use of the epithet "lie" or "liar," we consider whether the remark prejudicially affected the substantial rights of the accused." After a thorough review of the trial transcript, and of the State's closing remarks, the Court finds that the State was well within the boundaries of what are permissible comments for closing remarks. In its closing remarks to the jury, the State declared [y]ou can take into consideration people's conviction as to their credibility. So when he wants to throw mud on these folds think about his credibility; convicted robbery, convicted forgery, convicted theft.
Id.
You can take those into consideration when you say is that a man I can believe. That's why they're unable to say he's a bad guy but can I believe him, especially when there is nothing else with which to believe him.
As stated earlier, these were permissible comments for the State to make to the jury, with respect to their consideration of the Defendant's credibility. The Defendant's contention that "there were no steps taken to mitigate the effects of the 'errors'" is simply not supported by the record. This Court instructed the jury that the comments made by the State were only to be used by them in considering the credibility of the Defendant's testimony. His counsel raised an objection prior to the comments being made by the State and this lead to the customary instructions. Clearly this was not ineffective conduct.
The Defendant's seventh claim asserts that defense counsel was ineffective for failing to object to the Defendant's sentence as an Habitual Offender, and that the Court committed fundamental error by changing the guilty verdicts, which allegedly caused the Defendant to be erroneously sentenced. In addressing the assertions in this claim, the Court initially finds that the Defendant was correctly declared and sentenced as an Habitual Offender. Second, the Defendant's verdict sheet reflects that the jury convicted him of Counts 9, 10 and 11 involving Criminal Action Nos. 97-12-0626 for Robbery First Degree, 97-12-0627 for Possession of a Firearm During the Commission of a Felony and 97-12-0628 for Conspiracy Second Degree, which were the identical criminal action numbers reflected in the Court's sentencing Order. The Defendant was sentenced to the crimes the jury convicted him of, and his claims are therefore entirely meritless.
Defendant's Motion at 43-44.
The State filed a motion to have the Defendant declared an Habitual Offender pursuant to 11 Del. C. § 4214(a), as he was convicted of Second Degree Robbery on February 5, 1991, Second Degree Forgery on May 24, 1995, and Felony Theft on October 23, 1996. Pursuant to the statute, the Court appropriately granted the State's motion, the Defendant was declared an Habitual Offender, and he was sentenced in the appropriate manner.
Finally, the Defendant's ninth claim was addressed earlier in this opinion, but is also commingled with an ineffective assistance of counsel claim. Pursuant to Rule 7(e) an indictment may be amended at any time before a verdict is rendered as long as an additional or different offense is not charged, and so long as substantial rights of the Defendant are not prejudiced by the amendment. As previously stated, the indictment was amended to correct a typographical error to the correct statutory charge, from 11 Del. C. § 1447 to 11 Del. C. § 1447A, consistent with the offense actually charged in the indictment. A new or different offense was not charged, and the substantial rights of the Defendant were not implicated in this minor amendment. As such, defense counsel had no basis to object to this amendment and failure to do so does not rise to the level of ineffective assistance of counsel.
CONCLUSION
For the above stated reasons, this Court finds that the Defendant's claims under this motion for postconviction relief are procedurally barred pursuant to Rule 61(i)(4), and his remaining ineffective assistance of counsel claims are wholly without merit, and as such all the assertions raised in this motion are denied.
IT IS SO ORDERED.