Opinion
Nos. 9702014978, IK97-02-0531-R1.
Decided: March 28, 2000. May 5, 2000
Andrew J. Vella, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
David B. Paitsel, pro Se.
COMMISSIONER'S REPORT AND RECOMMENDATION Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61ORDER
On this 5th day of May, 2000, upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) On October 1, 1997, the Defendant, David E. Paitsel, ("Paitsel") was found guilty as charged by a jury of Driving Under the Influence, 21 Del. C. § 4177 (a). A presentence investigation was ordered and on December 19, 1997 the Court sentenced Paitsel to sixteen months incarceration followed by varying levels of probation. Prior to trial, Paitsel's counsel filed several motions including a suppression motion which the Court denied following an evidentiary hearing. No appeal was filed with the Delaware Supreme Court. Instead, Paitsel filed the pending Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61.
(2) The Court referred this motion to Superior Court Commissioner Andrea M. Maybee pursuant to 10 Del. C. § 512 (b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and as meritless. No objections to the Report have been filed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated March 28, 2000,
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Recommendation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DENIED. ________________ President Judge
cmh oc: Prothonotary xc: Hon. Andrea M. Maybee Andrew J. Vella, Esq. Charles E. Whitehurst, Esq. David E. Paitsel Order Distribution (w/Report Recommendation)
On October 1, 1997, the Defendant, David E. Paitsel, ("Paitsel") was found guilty as charged by a jury of Driving Under the Influence, 21 Del. C. § 4177 (a). A presentence investigation was ordered and on December 19, 1997 the Court sentenced Paitsel to sixteen months incarceration followed by varying levels of probation.
Prior to trial, Paitsel's counsel filed several motions including a suppression motion which the Court denied following an evidentiary hearing. No appeal was filed with the Supreme Court. Paitsel has now filed the pending motion for postconviction in which he raises the following six grounds for relief.
Ground one: The Court erred in granting the State's motion in limine to exclude evidence concerning the failure of the intoxilyzer a month after it was used on defendant.
Ground two: The affidavit of probable cause was false.
Ground three: The prosecutor made comments during the trial which improperly influenced the jury.
Ground four: There was insufficient evidence to convict the defendant.
Ground five: The police officer committed perjury during the trial.
Ground six: Ineffective assistance of counsel for: a) refusing to file an appeal to the Supreme Court; b) failing to move to have the trial judge recuse himself; c) failing to call an expert concerning the intoxilyzer to object to the admission into evidence of the results of the intoxilyzer test.
Under Delaware Law the Court must first determine whether Paitsel has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61 postconviction claims for relief must be brought within three years of the conviction becoming final. Paitsel's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Paitsel's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, Del. Supr., 588 A.2d 1121, 127 (1991); Younger v. State, Del. Supr., 580 A.2d 554 (1990) (citing Harris v. Reed, 489 U.S. 255 (1989)). See Dawson v. State, Del. Supr, 673 A.2d 1186, 1190 (1996).
Super. Ct. Crim. R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgement of conviction are thereafter barred unless the movant demonstrates: 1) cause for the procedural fault; and 2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that "under mines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgement of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Only Paitsel's sixth and final claim is premised on allegations of ineffective assistance of counsel. To the extent his claim that his attorney failed to file an appeal is alleging cause for not raising the remaining five grounds sooner, he has also minimally raised counsel's effectiveness as to his remaining five grounds for relief. Paitsel has therefore seemingly alleged sufficient cause for not having asserted his six grounds for relief at trial and on direct appeal. These types of claims are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Paitsel, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance"; ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather to succeed on a claim of ineffective assistance of counsel a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ("Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997) Younger v. State, 580 A.2d at 556; Robinson v. State, Del Supr. 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must rebut a "strong presumption" that trial counsel's representation fell within the "wide range of reasonable professional assistance," and this Court must eliminate from its consideration the "distorting effects of hindsight when viewing that representation."
Strickland at 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Paitsel attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Paitsel's Rule 61 petition and should result in summary dismissal in all his grounds for relief. Even on the merits, however, Paitsel's claims are frivolous.
Paitsel asserts in his first ground for relief that the Intoxilyzer used to determine his Blood Alcohol Concentration ("BAC") was "incorrectly calibrated." Before results of an Intoxilyzer test can be admitted into evidence, the State is required to show that a reasonable period of time exists between calibrations of the Intoxilyzer. In this case, the State presented evidence that machine was calibrated both before and after the defendant's test and was in working order on both occasions. The State complied with the "reasonable" time requirement as set forth in Anderson. Paitsel's claim mistakes the facts of the case by arguing that there was an incorrect calibration. Prior to trial, the State filed a Motion in Limine to preclude the Defendant from presenting any evidence regarding the mechanical failure of the Intoxilyzer used in the case. The basis for the State's motion was the fact that the mechanical failure occurred long after the test was administered to the Defendant. The State argued that it had made the requisite showing of a reasonable time period between calibrations as required by Anderson. Additionally, the State argued that evidence of the subsequent mechanical failure of the Intoxilyzer was not relevant and would only serve to confuse the jury. The State's motion was granted. This claim is meritless and procedurally barred.
Anderson v. State, Del. Supr., 675 A.2d 943, 944 (1996).
Paitsel's second and fifth grounds for relief both appear to suggest that the arresting officer was not truthful — essentially challenging the sufficiency of the evidence. When considering a Defendant's challenge to the sufficiency of the evidence, the standard of review applied is "whether any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the defendant guilty beyond a reasonable doubt." "Under Delaware law, the jury is the sole trier of fact, responsible for determining witness credibility and resolving conflicts in testimony. It is entirely within the discretion of the jury to accept one witness' testimony and reject the conflicting testimony of other witnesses."
Johnson v. State, Del. Supr., No. 42, 1999 (Aug. 4, 1999) (Order) (citing Robertson v. State, Del. Supr., 596, A.2d 1345, 1355 (1991)).
Johnson, supra (citing Tyre v. State, Del. Supr., 412 A.2d 326, 330 (1980); Pryor v. State, Del. Supr., 453 A.2d 98, 100 (1982)).
Paitsel claims that the affidavit of probable cause prepared by the arresting officer in this case was false in several respects. The arresting officer testified at both the suppression hearing and at trial. On both occasions, the officer was subject to rigorous cross-examination by defense counsel regarding the affidavit of probable cause. The defendant also testified and had an opportunity to present evidence in support of his case. Questions of fact and issues of credibility were presented to the jury at trial for their consideration. This ground for relief is meritless.
See Johnson, supra.
Paitsel also claims that the arresting officer perjured himself on the witness stand. Again, factual disputes and issues of credibility were placed before the jury. That same jury found Paitsel guilty. This ground for relief is meritless.
Paitsel in his third ground for relief alleges that the State addressed inappropriate remarks to the jury in an effort to secure a conviction. To prevail on a claim of prosecutorial misconduct, Paitsel must show that the "improper arguments by the prosecutor" not only created the possibility of prejudice, but that the errors worked to his actual substantial disadvantage.'" Paitsel has failed to demonstrate how the State's comments created a substantial disadvantage in light of the overwhelming evidence presented in support of his conviction, including the fact that his blood alcohol reading was .11 well over the allowed limit. This claim is meritless.
Sullivan v. State, Del. Supr. 636 A.2d 931, 942 (1994) (quoting Saunders v. State, Del. Supr., 602 A.2d 623, 625 (1984)); see also Stevenson v. State, Del. Supr., 709 A.2d 619, 633 (1998).
Paitsel's fourth allegation is that his conviction was not supported by the evidence because no evidence regarding drugs was introduced at trial. The evidence presented at trial revealed that Paitsel was driving on the night in question and that his BAC was .11. Clearly there was sufficient evidence to support a conviction under 21 Del. C. § 4177. Paitsel's claim is frivolous and wholly without merit and should be denied.
Paitsel's final claim is that his trial counsel provided ineffective assistance. As noted, Paitsel must prove both cause of prejudice to prevail on this ground. In his ineffective assistance claim, Paitsel first asserts that counsel failed to file an appeal despite a request to do so. However, a review of the letter sent by counsel to Paitsel reveals that an appeal was discussed and determined to be without merit. Defense counsel indicates such in his affidavit. There is no indication, however (other than Paitsel's unsubstantiated claim), that Paitsel requested that an appeal be filed or that counsel refused to do so. Paitsel has not offered any credible reason for his failure to file an appeal which would justify his procedural default. Paitsel has not established cause for his procedural default. Additionally, Paitsel has failed to make concrete allegations of prejudice and substantiate them as required.
In Paitsel's next claim he asserts that counsel failed to present a motion requesting that the presiding judge recuse himself. Paitsel asserts that he had prior contact with the presiding judge but fails to demonstrate how he was prejudiced by such contact. The mere fact that there has been "[p]revious contact between the judge and a party, in the same or a different judicial proceeding, does not require automatic disqualification." Paitsel must demonstrate that the "alleged bias or prejudice of the judge `. . . stem[s] from an extrajudicial source and results in an opinion on the merits on some basis other than what the judge has learned from his participation in the case.'" Paitsel is simply unable to provide a proper factual or legal basis which would support the contention that counsel should have requested that the judge recuse himself. He merely asserts that he asked counsel to move to have the presiding judge recuse himself. His claim should, therefore, be denied.
Los v. Los, Del. Supr., 595 A.2d 381, 384 (1991).
Los, 595 A.2d at 384 (citing United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966)).
Paitsel also claims that counsel failed to call an expert regarding the reliability of the Intoxilyzer. Trial counsel is given wide latitude in making tactical decisions at trial. The decision to call an expert is one that falls within the discretion of counsel under Strickland. Moreover, in his affidavit, counsel states that the hiring of an expert was not discussed by Paitsel or counsel. Notwithstanding the above, the calling of an expert would have been precluded by the Court's ruling regarding the reliability of the Intoxilyzer. The State met its burden under Anderson thereby taking the reliability issue out of play. Again, Paitsel has failed to substantiate a concrete allegation of prejudice. This claim is without merit and should be denied.
Strickland v. Washington, 466 U.S. 668, 689 (1984).
Paitsel finally claims that counsel failed to object to the admission of the Intoxilyzer results. Paitsel's argument is squarely contradicted by the record. Counsel attempted on more than one occasion and under several theories to exclude the admission of the Intoxilyzer evidence. At suppression, counsel argued that there was no probable cause for the Intoxilyzer to be administered, therefore rendering its results inadmissible. Counsel also objected to the results during the State's Motion in Limine and at trial. In fact, counsel attempted at every turn to suppress the Intoxilyzer reading. Paitsel's final claim has no basis in fact. Therefore, his claim of ineffective assistance should be denied.
After reviewing the record in case, I conclude that Paitsel has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that Paitsel's postconviction motion be dismissed as procedurally barred by Rules 61(i)(3) for failure to prove cause and prejudice and as meritless.
Commissioner Andrea M. Maybee
oc: Prothonotary cc: Hon. Henry duPont Ridgely Andrew J. Vella, Esq. David E. Paitsel File