Opinion
No. 590, 2002
Submitted: April 4, 2003
Decided: June 9, 2003
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN98-09-0970 thru 0974
Affirmed.
Unpublished opinion is below.
CECIL BROWNE, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 590, 2002 Supreme Court of Delaware. Submitted: April 4, 2003 Decided: June 9, 2003
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices
ORDER
Myron T. Steele, Justice
This 9th day of June 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Cecil Browne, filed an appeal from the Superior Court's October 3, 2002 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In September 1999, a Superior Court jury found Browne guilty of 3 counts of Unlawful Sexual Intercourse in the Third Degree and 2 counts of Attempted Unlawful Sexual Intercourse in the Third Degree. Browne was sentenced to a total of 40 years incarceration at Level V, to be suspended after 11 years for 15 years of decreasing levels of probation. Browne's convictions and sentences were affirmed by this Court on direct appeal.
(3) In this appeal, Browne claims that: a) his counsel provided ineffective assistance; b) he was denied his right to a speedy trial; c) his pretrial statement should not have been admitted into evidence; d) the judge should have granted a mistrial; and e) the indictment was illegal. In his reply brief, Browne makes the additional claim that his sentences are illegal.
(4) In order to prevail on his claim of ineffective assistance of counsel, Browne must show that his counsel's representation fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable."
(5) Browne claims that his first public defender provided ineffective assistance by filing untimely motions and failing to interview witnesses. He further claims that his second public defender, who represented him at trial, did not raise these issues due to a conflict of interest, thereby also providing ineffective assistance. We find these claims to be without merit, since the record is devoid of any evidence that any alleged error on the part of either of Browne's public defenders resulted in any prejudice to him.
(6) Browne next claims that he was denied his right to a speedy trial. He contends that the public defender's requests for continuances unduly delayed his trial for a year from the date of his arrest. Because Browne did not assert this claim in his direct appeal, it is procedurally defaulted unless he can establish either cause for relief from the procedural default and prejudice from a violation of his rights or a miscarriage of justice due to a constitutional violation. Whether there has been a violation of a defendant's constitutional right to a speedy trial depends on the specific facts of the case. The court applies a balancing test to the facts, weighing the conduct of the defense and the prosecution to determine whether a speedy trial violation has occurred. The factors to be weighed include the length of the delay, the reason for the delay, the defendant's assertion of his right and prejudice to the defendant.
(7) Browne's claim of a speedy trial violation is without merit. Browne was arrested on September 11, 1998. His first trial was scheduled for June 10, 1999. Prior to trial, Browne's original public defender was replaced and, on June 1, 1999, his new public defender requested a continuance in order to become familiar with the case. The trial was then scheduled for September 14, 1999, which was a date mutually convenient for the defense and the prosecution. The record does not reflect any prejudice to Browne as a result of the delay. In fact, the delay appears only to have benefitted Browne since it gave his counsel additional time to prepare. Under these circumstances, Browne has failed to establish any justification for our consideration of his procedurally defaulted speedy trial claim.
(8) Browne's next claim is that his pretrial inculpatory statement should not have been admitted into evidence at trial. Because Browne did not assert this claim in his direct appeal, he must provide justification for the procedural default in order for this Court to consider the claim. The appellate standard of review in determining whether the Superior Court should have admitted evidence at trial is abuse of discretion. There is no basis for our consideration of Browne's claim since he has not demonstrated a violation of any right as the result of the admission of his statement.
(9) Browne next claims that the Superior Court judge should have sua sponte granted a mistrial after the jury sent him a note during deliberations stating that they were unable to reach agreement on all counts of the indictment. Again, because Browne did not assert this claim in his direct appeal, he must provide justification for the procedural default. Having reviewed the trial record, we conclude that the Superior Court's failure to sua sponte declare a mistrial did not violate any right of Browne and, therefore, this claim, too, is without merit.
(10) Browne next claims that the indictment was illegal. Because Browne previously challenged the indictment in his direct appeal, he is barred from pursuing the claim in these postconviction proceedings unless reconsideration is warranted in the interest of justice. Our review of the record in this case does not lead us to conclude that reconsideration of this claim is warranted in the interest of justice.
(11) Browne's final claim is that his sentences were illegal because they were based on erroneous information and exceeded the Truth-In-Sentencing guidelines. Because this claim was not raised in Browne's direct appeal, he must provide justification to excuse the procedural default. We have reviewed the transcript of the sentencing hearing and find no violation of any right of Browne and, therefore, no justification to excuse the procedural default.
Browne was acquitted of one count each of Possession of a Deadly Weapon During the Commission of a Felony and Aggravated Menacing. In addition, two counts of Noncompliance with Bond were dismissed.
Browne v. State, Del. Supr., No. 598, 1999, Walsh, J. (Nov. 29, 2000).
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
SUPER.CT.CRIM.R. 61(i)(3).
SUPER.CT.CRIM.R. 61(i)(3)(A) and (B).
SUPER.CT.CRIM.R. 61(i)(5).
Middlebrook v. State, 802 A.2d 268, 273 (Del. 2002) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). See also Bailey v. State, 521 A.2d 1069, 1079 (Del. 1987).
Id.
Id.
SUPER.CT.CRIM.R. 61(i)(3)(A) and (B); SUPER.CT.CRIM.R. 61(i)(5).
DEL. R. EVID. 401, 402, 403; Reyes v. State, 819 A.2d 305, 311-12 (Del. 2003).
SUPER.CT.CRIM.R. 61(i)(3)(A) and (B); SUPER.CT.CRIM.R. 61(i)(5).
MacDonald v. State, 816 A.2d 750, 754-56 (Del. 2003).
SUPER.CT.CRIM.R. 61(i)(4).
SUPER.CT.CRIM.R. 61(i)(3)(A) and (B); SUPER.CT.CRIM.R. 61(i)(5).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.