Opinion
Cr. I.D. No. 9711008238, Cr. A. No. IN97-12-0413R1, Cr. A. No. IN97-12-0414R1, Cr. A. No. IN97-12-0415R1
Submitted: April 23, 2002
Decided: July 1, 2002
ORDER
On this 1st day of July 2002, upon consideration of defendant's pro se motion for postconviction relief under Superior Court Criminal Rule 61, it appears that:
(1) The defendant was convicted of Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance (Cocaine), Possession of a Controlled Substance Within 1000 Feet of a School, and Distribution of a Controlled Substance Within 300 Feet of a Park or Recreation Area. He appealed his conviction. He asserted two issues on appeal: (a) the trial judge abused her discretion by failing to sustain defense counsel's objection to the relevance of a police officer's statement, and (b) the trial judge committed plain error by allowing the prosecutor to ask the question and by permitting the witness to answer it. The Supreme Court affirmed.
Hunter v. State, 2001 WL 1636741, at *1 (Del. Dec. 12, 2001).
Id. at *3.
(2) In this motion, the defendant asserts three grounds for relief: (a) an illegal arrest; (b) an illegal search and seizure; and (c) ineffective assistance of counsel. Superior Court Criminal Rule 61(i)(3) states: "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." If a defendant fails to raise an issue on direct appeal it is waived. That procedural bar can be overcome if there is a "colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction."
Super. Ct. Crim. R. 61(i)(3).
Johnson v. State, 460 A.2d 539, 540 (Del. 1983).
Super. Ct. Crim. R. 61(i)(5).
(3) The defendant waived the issues of an illegal arrest and an illegal search and seizure because he did not raise them on direct appeal. The defendant has not shown that an exception to the procedural bars is applicable here. At trial, a Wilmington Police Department Detective ("detective") testified that he was riding around an area with an alleged robbery victim looking for suspects. The detective observed a parked vehicle, with lights off, the ignition running, and three subjects inside apparently sleeping. The defendant, an occupant of the vehicle, consented to a pat-down search. The detective discovered a bulge on the defendant's person and received permission from him to retrieve the item. It filed tested positive for crack cocaine. The detective then arrested the defendant. Under the circumstances, the detective had probable cause to arrest the defendant.
Trial Transcript at 10 (April 11, 2000).
Id. at 11-12.
Id. at 14.
Id. at 14-15.
Id. at 15.
Id.
(4) The defendant's third ground for relief, ineffective assistance of counsel, was not waived. "In order to prevail under the Sixth Amendment on the grounds of ineffective assistance of counsel, 'the defendant 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.'" Given these standards, there is a strong presumption that counsel's representation was professionally reasonable. In assessing attorney performance, every effort must be made "to eliminate the distorting effects of hindsight."
Albury v. State, 551 A.2d 53, 58 (Del. 1988), quoting Strickland v. Washington, 466 U.S 668, 688, 694 (1984).
Stone v. State, 690 A.2d 924, 925 (Del. 1996).
Strickland, 466 U.S. at 689.
(5) The defendant has not proven that he received ineffective assistance of counsel. The defendant asserts that defense counsel never discussed the case or a trial strategy with him before trial. However, defense counsel stated that he met with defendant several times in the courthouse and at least once in prison. Defense counsel also indicated that he could not file a suppression motion in this case because it was legally without merit since the search and seizure were lawful. The defendant asserts that defense counsel should have confronted and called the alleged robbery victim as a witness. Defense counsel appropriately indicates that the defendant did not have a right to confront the alleged victim of a crime he was not charged with committing. No attorney deficiency has been demonstrated.
Defendant's Motion at 4.
Defense Counsel's Affidavit at 2.
Defendant's Motion at 3-4.
Defense Counsel's Affidavit at 3.
(6) For the above reasons, the motion for postconviction relief is DENIED.
IT IS SO ORDERED.