Opinion
ID No. 9705002445.
Submitted: December 5, 1999.
Decided: February 24, 2000.
On Defendant Terrell L. Davis' Pro Se Motion for Postconviction Relief. SUMMARILY DISMISSED.
ORDER
This 23rd day of February, 2000, upon consideration of Defendant's pro se Motion for Postconviction Relief, it appears to this Court that:
1. Terrell L. Davis (Defendant) has filed this pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Defendant requests that the judgment against him should be vacated and a new trial granted based on (1) the fact that the "State failed to prove two acts of delivery of cocaine," (2) "Corrections [sic] of illegal sentenced [sic]," and (3) ineffective assistance of counsel. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED.
Defendant's Motion for Postconviction Relief at 3.
Id.
2. Defendant was arrested on May 8, 1997 for Delivery of Cocaine, a Narcotic Schedule II Controlled Substance (16 Del. C. § 4176 [ 16 Del. C. § 4716](b)(4)) and Delivery of a Controlled Substance Within 300 feet of a Park or Recreation Area ( 16 Del. C. § 4768). Following a jury trial, Defendant was convicted of Delivery of Cocaine and was sentenced to pay a fine of $50,000 (which was suspended) and to serve 15 years imprisonment at level five followed by five years of probation at varying levels. The 15 years sentence was a mandatory minimum sentence pursuant to 16 Del. C. § 4763. Defendant was also convicted of Delivery of a Controlled Substance Within 300 feet of a Park or Recreation Area and was sentenced to one year probation.
Defendant has filed a motion for postconviction relief which requests that the judgment against him should be vacated and a new trial granted based on (1).the fact that the "State failed to prove two acts of delivery of cocaine," (2) "Corrections of illegal sentenced," and (3) ineffective assistance of counsel. Defendant's trial counsel, Assistant Public Defender James F. McCloskey, is now deceased.
Id.
Id.
3. Ground one of Defendant's motion alleges that the "State failed to prove two acts of delivery of cocaine." In the attached "Memorandum of Law in Support of Motion for Post-Conviction Relief," Defendant argues that
[t]he States [sic] prime [sic] facie case failed to provide some credible evidence tending to prove delivery of cocaine [and] [a]t best, the prosecution prime [sic] facie case proved that the individual possess and mode on delivery of cocaine . . . within 300 feet of [a park] . . . is problematic.
Defendant's attached "Memorandum of Law in Support of Motion for Post-Conviction Relief" at 6.
Ground two of Defendant's motion seeks "Corrections [sic] of illegal sentenced [sic]." Defendant essentially contends in his attached "Memorandum of Law in Support of Motion for Post-Conviction Relief," that the "sentence is illegal on its face."
Id. at 8.
4. When considering a motion of postconviction relief, the Court must first apply the procedural bars of Rule 61(i) before considering the merits of the individual claims. 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. Under Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the Rules of Superior Court, is thereafter barred unless the movant shows both (1) cause for relief from the procedural default and (2) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different.
Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)); see also Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 745 (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. (Apr. 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 56, 1992) (ORDER)).
Younger, 580 A.2d at 556 ( citing Murray v. Carrier, 477 U.S. 478, 492 (1986)).
Flamer, 585 A.2d at 748.
5. Defendant did not raise grounds one and two on appeal to the Supreme Court. Defendant has failed to explain why the two grounds were not raised on appeal. Furthermore, Defendant has failed to show (1) "some external impediment" which prevented him from raising the claim and (2) a "substantial likelihood" that if the issue had been raised on appeal, the outcome would have been different. Grounds one and two of Defendant's motion for postconviction relief are therefore summarily dismissed pursuant to Super. Ct. Cr. R. 61(i)(3).
6. Ground three of Defendant's motion alleges ineffective assistance of counsel. Specifically, Defendant states in the motion that
[t]he trial court will not consider a pro-se application by defendant who are represented by counsel. Super. C. Crim. R. 47 and Delaware Supreme Court will not hear ineffective assistance of counsel on direct appeal. Cause for the procedural default are met.
Defendant's Motion for Postconviction Relief at 3.
In his "Memorandum of Law in Support of Motion for Post-Conviction Relief" Defendant argues that
[Defendant's] lawyer failed to seek the lawful objective of his client through reasonable available means promitted [sic] by law by failing to obtain an accurate physical measurement from were the alleged drug transaction actually occurred to the parkland.
Defendant's attached "Memorandum of Law in Support of Motion for Post-Conviction Relief" at 9.
7. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. Defendant must prove his allegations by a preponderance of the evidence. In addition, the Delaware Supreme Court has consistently held that when 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.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Robinson v. State, Del. Supr., 291 A.2d 279 (1972).
State v. Mason, Del. Super., Cr. A. No. IN93-02-0279-RI, Barron, J. (April 11, 1996) (Mem. Op.) at 7.
8. Defendant has not made the requisite showing as to the first prong. Whenever evaluating the conduct of counsel, this Court must indulge "a strong presumption that counsel's conduct was professionally unreasonable." Further, the Court must make "every effort . . . to eliminate the distorting effects of hindsight[.]" [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" The inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the 6th Amendment.
Albury at 58.
Sirickland, 466 U.S. at 689.
Id. at 690.
Murray, at 492 (1986).
9. Defendant alleges that counsel did not obtain an accurate measurement from where the drug transaction took place in relation to the park. Proximity within 300 feet of a park is an element of the offense for which Plaintiff was charged and convicted. At trial, the police officer who arrested Defendant testified that the area where the drug transaction occurred was within three hundred feet of a park and that "[t]his is [sic] measured many times because of prior drug investigations done by the County. All of [Raven Turn, where Defendant was alleged to have delivered the cocaine] is within three hundred feet of the parkland." Counsel for Defendant on cross examination specifically asked the police officer if she had measured the distance to the park. The Detective indicated that she personally did not measure the distance to the park but that "[t]he parkland had been measured numerous times." This was sufficient evidence for the jury to have found that Defendant delivered the cocaine within 300 feet of a park. Defendant has not shown how "counsel's representation fell below an objective standard of reasonableness." Ground three is therefore summarily dismissed.
Trial Tr. at 52.
Id. at 56.
10. For the reasons stated, Defendant's pro se Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.