Opinion
ID No. 9901009851A.
Submitted: February 24, 2005.
May 26, 2005.
Kenneth Reeder, Delaware Correctional Center, Smyrna, DE.
Dear Mr. Reeder:
Pending before the Court are a motion for postconviction relief which defendant Kenneth Reeder ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61") and a motion to correct his sentence filed pursuant to Superior Court Criminal Rule 35(a) ("Rule 35(a)"). Defendant has requested that the Court hold a hearing on the Rule 61 motion. However, because the matters may be decided based upon the filings before the Court, no need exists to hold a hearing.
This is my decision on the pending motions.
In September, 1999, defendant was tried before a jury on a multitude of charges arising from numerous residential burglaries which took place in December, 1998 and January, 1999. On September 24, 1999, a jury found him guilty of thirty-two (32) felonies and eighteen (18) misdemeanors. Because defendant was declared an habitual offender pursuant to 11 Del. C. § 4214(a), this Court sentenced him to eight (8) years each at Level 5 on fourteen (14) of the convictions for a total of one hundred twelve (112) years at Level 5. On the remaining convictions, defendant was sentenced to incarceration suspended for probation. The Supreme Court affirmed. Reeder v. State, 783 A.2d 124 (Del. 2001), reargu. den., Del. Supr., Nos. 552, 1999 and 583, 1999, Steele, J. (May 21, 2001). The mandate was issued on May 22, 2001.
In the applicable version of 11 Del. C. § 4214(a), it is provided as follows:
(a) Any person who has been 3 times convicted of a felony, other than those which are specifically mentioned in subsection (b) of this section, under the laws of this State, and/or any other state, United States or any territory of the United States, and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title. Notwithstanding any provision of this title to the contrary, any sentence so imposed pursuant to this subsection shall not be subject to suspension by the court, and shall be served in its entirety at a full custodial Level V institutional setting without benefit of probation or parole, except that any such sentence shall be subject to the provisions of §§ 4205(h), 4217, 4381 and 4382 of this title.
Rule 61 motion
On March 23, 2004, defendant filed his pending postconviction motion, which he amended several times thereafter. Defendant's attorney who represented him both at trial and on appeal ("trial counsel") has submitted an affidavit in response to the Court's request he do so.
Defendant has raised numerous grounds for relief. However, before reviewing those grounds, I first must determine if some threshold procedural bars apply pursuant to Rule 61(i).
In Superior Court Criminal Rule 61(i), it is provided as follows:
Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any 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) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any 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 in warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to 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.
The motion is not time-barred pursuant to Rule 61(i)(1), since it was filed within three (3) years from the date the Supreme Court issued its mandate on the appeal. Because this is defendant's first motion for postconviction relief, Rule 61(i)(2), which precludes the consideration of any claim not raised in a previously-filed postconviction motion, does not apply.
The bars which are applicable to defendant's first and third claims (prosecutorial misconduct and abuse of discretion by the trial court) are those contained in Rule 61(i)(3) and (4). Those bars possibly may be overcome, but frankly, rather than going through the procedural bars and exceptions thereto, it is more judicially economical to eliminate those grounds because they are based upon factually and/or legally meritless premises. Defendant asserts ineffective assistance of counsel as his second ground of relief. He lists forty-eight (48) ways in which trial counsel was ineffective. Vague, conclusory allegations fail.Younger v. State, 580 A.2d 552 (Del. 1980). I do not examine a claim in this decision unless defendant provided concrete allegations regarding it. Thus, unless a claim is addressed below, it is denied because it was vague and/or conclusory.
Defendant repeats the same basic arguments. Thus, although his moving papers are lengthy, the substance of them is limited.
The Delaware Supreme Court, in its decision on defendant's appeal, frames the case against defendant and the legal issues raised. Thus, I quote therefrom.
1. Following trial, a jury convicted Kenneth Reeder of 32 felonies and 18 misdemeanors arising from 14 residential burglaries that occurred in late 1998 and early 1999 in Sussex County. Reeder appeals his convictions arguing that the Superior Court erred when it denied his motion to suppress evidence obtained during a warrantless search of his car and a later search of his residence pursuant to a search warrant. Arguably, the evidence seized proved crucial to his convictions.
* * *
4. This Court's determination of whether police have probable cause to search an automobile is a mixed question of fact and law. n1 * * *
n1 Downs v. State, Del. Supr., 570 A.2d 1142, 1144 (1990). As appellant characterizes his motion, the search of his residence with a warrant is improper only as "fruit of the poisonous tree" from the car search.
5. Detective Timothy Conaway investigated the residential burglaries for which the jury convicted Reeder. A witness to one burglary indicated that the burglar possibly used a dark-colored Mustang 5.0 with temporary tags. Reeder became a suspect in the burglaries after police stopped him during a routine crime prevention check while he was driving a dark-colored Mustang. Reeder's record indicated that he had been arrested several times for similar crimes.
6. Detective Conaway, accompanied by Detective Sutton and a Bethany Beach Officer, Patrolman Mumford, went to Sea Colony in Bethany Beach where they believed that Reeder worked as a construction worker. While looking for Reeder, in order to question him about the burglaries, Detective Conaway saw two silverware cases and a "Lost Boys" cassette in the backseat of a dark-colored Mustang. The Mustang belonged to Reeder. These items matched descriptions of property taken in two of the burglaries. A worker on the site approached the police and indicated that Reeder "took off, dropping everything" after seeing the police. Detective Conaway began to pursue but immediately stopped fearing that Reeder might be armed. The police then searched Reeder's car, recovered the stolen items and found a set of pry tools. The police then obtained a search warrant and searched Reeder's residence. They found more stolen items in Reeder's residence. The police later arrested Reeder for crimes related to the burglaries.
7. Reeder filed a motion to suppress all the evidence seized from his car and residence.
8. Reeder argues that the Superior Court abused its discretion when it denied his motion to suppress the evidence found in his car and residence. Reeder argues that the warrantless automobile search was impermissible because the police lacked probable cause to conduct the search and because there were no exigent circumstances requiring the Detectives to search the vehicle before obtaining a search warrant. Reeder asserts that if the initial automobile search was impermissible, then proper application of the exclusionary rule requires the suppression of the evidence discovered during the later search with a warrant of his residence.
9. Ideally, police will obtain search warrants before any search of an individual's home or property; however, the law recognizes that a search without a warrant can be reasonable in some instances. Therefore, courts have described several exceptions to the warrant requirement. Warrantless searches of an individual's home require that police have probable cause to believe that the fruit or instrumentality of a crime is within the home and that exigent circumstances require the immediate search to prevent the destruction of the evidence. n3
n3 See Minnesota v. Olson, 495 U.S. 91, 92, 109 L. Ed. 2d 85, 110 S. Ct. 1684 (1990) (describing the appropriate standard as entry may be justified by hot pursuit of a fleeing felon, the imminent destruction of evidence, the need to prevent a suspect's escape, or the risk of danger to the police or others; but, in the absence of hot pursuit, there must be at least probable cause to believe that one or more of the other factors were present and, in assessing the risk of danger, the gravity of the crime and likelihood that the suspect is armed should be considered.").
10. Delaware cases describe a broader exception when the police conduct a warrantless automobile search. "So long as the police have probable cause to believe that an automobile is carrying contraband or evidence, they may lawfully search the vehicle without a warrant." n4 This is because vehicles are mobile by nature, and this mobility increases the likelihood that crucial evidence could be lost or destroyed if not searched for immediately. Therefore, the Courts determine whether it would be reasonable for a search to be conducted without a warrant if sufficient probable cause existed, given the totality of the circumstances, in order to justify the search. n5
n4 Tatman v. State, Del. Supr., 494 A.2d 1249, 1251 (1985).
n5 Thompson v. State, Del. Supr., 539 A.2d 1052, 1055 (1988).
11. Reeder argues that the information Detective Conaway possessed when he searched Reeder's car was sufficient to justify a warrantless search only if he had, in fact, received a description of the stolen silverware cases from Mrs. Conaway. Ordinarily, differences in testimony are credibility issues to be determined by the trier of fact; however, Reeder argues that credibility determinations should be subject to review if, on the face of the record, the testimony of a witness is inconsistent and that inconsistency is based on an attempt to tailor testimony to nullify any constitutional questions about the search. n6
n6 People v. Garafolo, N.Y.2d Dept., 44 A.D.2d 86, 353 N.Y.S.2d 500 (1974) (indicating that appellate courts may review determinations of credibility made by the trier of fact, if a witness' testimony includes statements which were obviously made to avoid constitutional questions about searches).
12. Detective Conaway testified three times: once at a preliminary hearing, once at a suppression hearing and once at trial. Detective Conaway testified at the suppression hearing that he called Angie Conaway (no relation to Detective Conaway) to confirm the description of the silverware set that was stolen from her home. During the preliminary hearing, however, Detective Conaway stated that he had confirmed the identity of the silverware cases by driving to Mrs. Conaway's home after the property was seized. At trial, Mrs. Conaway [sic] testimony contradicted Detective Conaway's version of events, stating that the Detective called to say that he might have discovered her silverware but that the Detective did not ask for a description of the property. Moreover, Mrs. Conaway testified that she drove to the police station to claim her property instead of Detective Conaway bringing it to her as he had testified.
13. It is well-settled Delaware law that credibility disputes about testimony are resolved by the court below as the trier of fact. n7 The trial court's transcribed ruling about the suppression issues makes the following clear. The car searched matched the description related to the police of the burglar's car. The car, later confirmed to be Reeder's, was physically present at Reeder's known work place. Reeder fled the scene with the keys upon hearing the police had arrived. The cassette, CDs and the silver cases were seen in plain view through the car window. Although the "pry tools," flashlights and gloves were as consistent with construction work as with burglary tools, the trial court correctly concluded that the totality of the circumstances justified an immediate warrantless search of the car based upon reason to believe it contained the fruits and tools of a burglary. The police reasonably concluded that it would be impractical to leave the scene to search for Reeder and the keys or to seek a warrant for the car.
n7 See Chao v. State, Del. Supr., 453 A.2d 326, 330 (1980).
14. The trial court was aware of defendant's argument that a police officer manufactured his testimony to meet the test of probable cause and chose nonetheless to believe the officer's testimony. Even if there exists some inconsistency between the officer's testimony at his three court appearances and with that of the owner of the stolen property, the totality of the factual circumstances described at the suppression hearing constituted probable cause to search the car without a warrant. The trial court so found, and we agree. [Emphasis added.]Reeder v. State, 783 A.2d.
The Supreme Court's decision clearly explains the issues and facts regarding the suppression motion. Much of defendant's Rule 61 motion focuses on this suppression motion. His strategy is as follows. He attacks each minute detail of the ruling on the suppression motion in an effort to obtain a ruling herein which will render that suppression ruling null and void. If this Court should nullify that ruling, then, according to defendant, the case against him fails because all of the evidence against him would be suppressed as fruit of the poisonous tree. Thus, it is necessary to set forth below the Superior Court's ruling on the suppression motion.
I think I am prepared to rule at this point in time from the bench. I thank both sides for a good presentation and the good adversarial process of thrashing out the law and the facts.
I am going to deny the motion. . . . I am going to deny the motion to suppress, and it is on these grounds:
When you first read the motion, it really does raise one's interest concerning what the officer knew as far as the potential for the immediate evidentiary value of these items that he saw. But the testimony — especially the testimony concerning calling the victim and getting a blow-by-blow description of what her silver cases looked like, the color and the descriptions — is substantial.
I don't mean to be comical, but I don't know what a Lost Boys tape is. I presume that is a popular music group. . . . [I]t was interesting. You are looking at a totality-of-the-circumstances point of view.
So you have the description of the boxes, which is substantial, I think. You have the notation that this is a cassette and he has a C.D. player in there. It could have been a gift, or that kid of thing, but that is one more thing that you throw on the scales.
I agree with you as to the pry tools and the fact that they know he is working in construction. They came to the construction site and, after the fact, he found out that there were no pry marks. But, again, this is an evolving investigation that was taken over right after the new year, and this occurs on January 13th.
It is a pattern of burglaries, and the pry bar is a frequent tool used and an effective tool in gaining entrance. To that, you add the flashlights and the gloves, which, again, are innocent things, especially for someone working in construction in the winter, until they are added to the other things.
I think that the thing that kind of takes it over the top is that evidence of flight can be used in a criminal trial. A jury can hear evidence of flight to determine what value they think it merits.
Surely, at this point in time, these officers, from an investigator's point of view, feel that they have hit the mother lode. They saw it. They solved a ton of burglaries. And when this fellow runs on them and bolts on them, that is just the icing on the cake, as far as the evidentiary value of what they knew before they went in.
As far as their plain-view observations, I think, combined with all of the other information and the descriptions from the lady — it is not like this is a greenish-brown substance that they immediately think is marijuana — that they have a substantial belief, a reasonable belief, that those two cases are, in fact, the cases that were stolen. Certainly, they were stolen at the same time. They are located together and they match the same description.
As to the issue of whether they had to go get a warrant at that time, I don't think there is a separate exigent circumstance. The person had fled. They didn't have the keys to the vehicle; he had the keys to the vehicle. You have a major construction site at Sea Colony with buildings. They go looking for him. They can potentially lose the evidence. I don't think they have to post a guard in this circumstance.
Once they have that exigent circumstance of a motor vehicle, his rights and any person's rights of expectation of privacy are less. . . .
In considering the totality of the circumstances, I find that the officers had probable cause. But, again, I commend both of you for your work.
Transcript of August 18, 1999, Ruling on Suppression Motion.
The facts surrounding defendant's boots also are pertinent to this Rule 61 motion.
The police located a pair of Timberland boots in defendant's room while performing a search. They compared these boots to boot prints at one of the crime scenes. The boots appeared to match the prints. The boots and boot prints were introduced into evidence at the trial. These boots remain in the Court's evidence closet. This Court examined the boots as a part of its consideration of the Rule 61 motion. The boots are Timberland boots, and they are a size 10.
There was an overwhelming amount of evidence establishing defendant committed the burglaries. Trial counsel's strategy was to admit that defendant possessed some of the stolen property but to contend the State could not establish he committed the burglaries. Trial counsel argued that once Detective Conaway found some of the stolen property in defendant's room, he decided defendant was guilty of the burglaries and developed his case to fit that theory. Trial counsel pointed out inconsistencies in the police and other witnesses' testimony and pointed out where the police emphasized the items which fit the theory that defendant committed the burglaries but disregarded those items which did not fit this theory.
A) Meritless premises
A number of defendant's arguments are based on factual and/or legal premises which are completely meritless. Below, I examine how they are meritless and eliminate them for that reason. No point exists to procedurally analyze and outline all of defendant's many arguments based on them when the basic premises are devoid of any merit at all.
1) Allegedly "perjured" testimony
Defendant repeatedly argues Detective Conaway perjured himself, and bases numerous grounds for relief on the alleged perjury.
a) Silverware cases
Defendant alleges Detective Conaway perjured himself when he testified regarding what information he had with regard to the two cases of silverware he saw in defendant's vehicle before he seized and searched it.
Inconsistencies existed in the detective's testimony on this subject. His testimony also differed from the victim Angie Conaway's testimony. However, there is nothing establishing that Detective Conaway perjured himself and there is nothing requiring a finding that Mrs. Conaway's version was the correct version. Because defendant raised this issue on appeal, the Supreme Court was aware of these inconsistencies and did not deem them to be perjury and/or to constitute error requiring a reversal. All arguments stemming from this mislabeled premise fail.
b) Color of Mustang
Defendant alleges perjury with regard to Detective Conaway's testimony regarding the color of the Mustang which a witness described.
The witness who saw a Mustang at the site of a burglary testified that he described the car as dark, either black, blue or green. Transcript from Trial Proceedings occurring on September 15, 1999, at C-39; C-42-3; C-48. Detective Conaway testified that the witness had said the Mustang was dark, most probably black, but possibly dark blue. Transcript from February 4, 1999, Preliminary Hearing at 7-8; 58; Transcript from Suppression Hearing on August 18, 1999, at 27; 28; Transcript from Trial Proceedings on September 20, 1999, at 154. The police began looking for and stopping Mustangs fitting the description. The police did not look for dark green Mustangs. Transcript from Suppression Hearing on August 18, 1999, at 52.
There is nothing which remotely suggests, let alone establishes, that the detective perjured himself regarding the color of the Mustang. This is a frivolous argument and all arguments based on it fail.
2) Arguments related to boots
Defendant makes numerous arguments regarding the boots and the boot prints.
Two arguments pertain to inconsistent testimony by Detective Conaway regarding the comparison of the boots to boot prints located at the scene of one of the burglaries and to testing done (or not done) on the boots.
At defendant's preliminary hearing, Detective Conaway testified as follows regarding the boots and prints.
Q. And you didn't testify regarding recovering any fingerprints or other physical evidence linking Mr. Reeder to any of these crime scenes . . .?
A. Other than the Timberland boots and the matching prints, and the matching size, which we currently have being sent to State Bureau of Identification, we haven't got results back on that. But we have photographs and feet prints.
And we actually took the boot out to the scene, because it was in a field undisturbed, and matched, sat it right there beside it, along with the photograph, which was the same size, size ten, made a tread right beside it, identical tread. And we took that boot, along with the photograph of that print and sent it to Ron Hagman, State Bureau of Identification.
Q. And that's being processed now?
A. That's correct.
Transcript of February 4, 1999, Preliminary Hearing at 53-55.
At the trial, the boots and the pictures of the boot prints were entered into evidence. The pertinent testimony and evidence at trial pertaining to the boots and the photographs of the boot prints are located at Transcript from Trial Proceedings on September 15, 1999, at C-158-162; C-173-181; C-195-202; C-203-08. The transcript reflects the following information. The police seized boots from defendant's bedroom. The boots were entered into evidence at defendant's trial. The police did not take these boots back to the scene and compare them to the actual prints. However, they did compare these boots to the photographs of the prints made and they were a match. The police did not test what was on the bottom of the boots; i.e., to determine if it was mud or dog excrement.
I reach two conclusions regarding the boots. First, testing what was on the bottom of the boots would have been irrelevant since the boots were found a number of days after the commission of the burglary where the prints were found. Second, the inconsistencies in the detective's testimony are irrelevant. What mattered was the prints, which the jury saw by photograph, matched the boots. That was the evidence before the jury. Whether the boots were taken to the scene was irrelevant.
Because these contentions are without merit, all arguments based on them fail.
All of defendant's remaining "boot" arguments are premised upon his contention that the boots seized and placed into evidence were not a size 10 boot. That premise is incorrect because the boots placed into evidence are a size 10 boot. Because that premise is incorrect, all of his arguments flowing therefrom are frivolous and meritless. These arguments fail.
3) Arguments regarding 11 Del. C. § 3507
Defendant argues that when Detective Conaway testified at the suppression hearing that a worker on the site approached the police and indicated that Reeder "took off, dropping everything" after seeing the police and the State failed to produce this witness, a violation of 11 Del. C. § 3507 occurred.
In 11 Del. C. § 3507, it is provided:
(a) In a criminal prosecution, the voluntary out-of-court prior statement of a witness who is present and subject to cross-examination may be used as affirmative evidence with substantive independent testimonial value.
(b) The rule in subsection (a) of this section shall apply regardless of whether the witness' in-court testimony is consistent with the prior statement or not. The rule shall likewise apply with or without a showing of surprise by the introducing party.
(c) This section shall not be construed to affect the rules concerning the admission of statements of defendants or of those who are codefendants in the same trial. This section shall also not apply to the statements of those whom to cross-examine would be to subject to possible self-incrimination.
Defendant's argument employs the wrong law. The law he cites, 11 Del. C. § 3507, is inapplicable. What he should be arguing is that the Court should have excluded testimony of the worker's statement because that statement is hearsay. Delaware Rules of Evidence ("DRE"), Rules 801(c) and 802. However, hearsay is permissible to establish probable cause for a search. State v. Stecher, Del. Super., 1156 Criminal Action, 1969, Bifferato, J. (Sept. 22, 1970). See Hooks v. State, 416 A.2d 189, 202 (Del. 1980).
DRE, Rule 801(c) provides: "Hearsay. `Hearsay' is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted."
DRE, Rule 802 provides: "Hearsay is not admissible except as provided by law or by these Rules."
Thus, all of defendant's arguments based upon his contention that this statement was not legally admitted fail.
All of defendant's arguments in claims one and three and portions of his ineffective assistance of counsel claims fail because they are based on meritless factual and/or legal premises. The only remaining claims are those asserting ineffective assistance of counsel which are based on premises other than those examined above.
B) Remaining ineffective assistance of counsel claims
To establish a claim of ineffective assistance of counsel, defendant must show that trial counsel's representation fell below an objective standard of reasonableness and but for the attorney's unprofessional errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668 (1984). With regard to the actual prejudice aspect, "[d]efendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Strickland v. Washington, 466 U.S. at 694.
1) Defendant argues trial counsel was ineffective for not interviewing the worker who said defendant had run away and calling that worker to the witness stand.
First, defendant cannot establish trial counsel was ineffective in not interviewing the worker. The construction site was chaotic and the police officer did not obtain the name of this witness. Defendant cannot show trial counsel could have located him. Second, defendant cannot establish that the outcome of the trial would have been other than what it was. Defendant cannot show that the worker, if located and called to the stand during the suppression hearing, would have testified that he said other than what the police officer said he stated. Based upon subsequent events, i.e., defendant fled in another car which he abandoned and stayed on the run for a while, it is more probable than not that the worker's testimony would have confirmed the detective's testimony at the suppression hearing. This ground fails.
2) Defendant argues trial counsel was ineffective in not raising, to the trial court, the argument that Detective Conaway's testimony regarding his conversations, and the timing thereof, with Mrs. Conaway constituted perjury. He also argues trial counsel was ineffective for failing to raise this issue on appeal.
First, defendant labels the inconsistent testimony to be perjury. The trial court and the Supreme Court were aware of the inconsistencies. They did not find evidence of perjury. I reject that label within the context of this Rule 61 motion.
I deny defendant's argument that trial counsel was ineffective for failing to seek reargument on the motion to suppress based on the inconsistencies in Detective Conaway's testimony regarding this conversation, and the timing thereof, with Mrs. Conaway. At that point in the trial, the "ship had sailed" with regard to the probable cause issue. Trial counsel's strategy was to focus on the guilt phase and establish that although defendant had possession of the property, he had not burglarized the residences. That was an appropriate tactic. This Court would have denied any effort to revisit the suppression matter based upon the inconsistencies in the testimony. Thus, defendant cannot show that the outcome of the trial would have been different if trial counsel had moved for a reconsideration of the suppression motion at the end of the trial.
Finally, trial counsel did raise the issue of Detective Conaway's inconsistencies on appeal.
Thus, these arguments fail.
3) Defendant argues trial counsel was ineffective for failing to call Mrs. Conaway at the suppression hearing. However, defendant employs "Monday-morning quarterbacking" with regard to her testimony. Trial counsel had no idea that her testimony might differ from Detective Conaway's. Had he called her to testify at the suppression hearing, trial counsel ran the risk of her confirming the Detective's testimony and thereby, eliminating defendant's chances at a denial of the suppression motion. Without calling her, trial counsel was able to argue the detective was creating probable cause to justify a warrantless search. The Court does not use hindsight in determining if trial counsel was ineffective. Strickland v. Washington, supra. Even if the Court considered trial counsel ineffective for not calling Mrs. Conaway, defendant cannot establish the outcome of the suppression hearing would have been other than what it was. The Court considered several factors in concluding the officers had probable cause to seize and search the car. The information on the silverware cases was just one of numerous factors. Defendant cannot establish the outcome of the suppression motion would have been other than what it was. This claim fails.
4) Defendant argues trial counsel was ineffective for failing to conduct an investigation into Detective Conaway's disciplinary record. However, he does not detail what such an investigation would have revealed nor how the outcome of the trial would have been other than what it was. This claim fails.
5) Defendant argues that trial counsel was ineffective for failing to prepare for the suppression hearing. The transcript of the suppression hearing and rulings thereon clarify that trial counsel was prepared for the hearing, and, contrary to the defendant's contention, was aware of the law involved. In fact, the trial court twice commented upon how well of a job defense counsel performed in connection with the motion to suppress. Defendant has not established trial counsel was ineffective in pursuing the motion to suppress. Thus, this claim fails.
6) Defendant argues trial counsel was ineffective on appeal, also. On appeal, trial counsel raised the following three issues he considered to be meritorious:
a) Insufficient probable cause to justify a warrantless search of defendant's vehicle;
b) Lack of exigent circumstances to justify a search of defendant's vehicle; and
c) The original sentence imposed was proper and the Court erred in modifying it. Defendant has not set forth a single issue otherwise which might have been meritorious and which would have resulted in a different outcome. This claim fails.
7) Defendant argues trial counsel was ineffective for failing to file a reply brief on appeal. Defendant does not, however, set forth any argument(s) the reply brief would have contained which would have made a difference in the outcome of the appeal. This claim fails.
8) Defendant argues trial counsel was ineffective for failing to seek a sentence modification. This claim fails because a sentence modification has nothing to do with the proceedings leading to his conviction, which is to what a Rule 61 motion is limited.
For all of the foregoing reasons, defendant's motion for postconviction relief fails.
Rule 35(a) motion
Defendant argues that the Court abused its discretion in sentencing defendant, and bases that contention on the decision in Crosby v. State, 824 A.2d 894 (Del. 2003) ("Crosby"). This actually is a motion to correct an illegal sentence pursuant to Rule 35(a), not a Rule 61 motion. However, the Court will address it anyway.
The Supreme Court's decision on the appeal lays out the factual scenario involving defendant's sentence.
15. Following Reeder's conviction, the court initially imposed a mandatory 32-year sentence at Level V after concluding that Reeder merited habitual offender status on four counts. The State filed a Motion for Correction of Sentence and, after a hearing, declared Reeder a habitual offender on all 14 counts and increased his sentence to 112 years.
16. Reeder argues that the Superior Court erred when it granted the State's Motion for Correction of Sentence and then enhanced its initial sentence. The court initially sentenced Reeder as a habitual offender on only four of the fourteen burglary counts. The State's motion alleged that the Superior Court misapplied 11 Del. C. § 4214, which defines punishment for habitual offenders when it did not sentence Reeder as an habitual offender on each count. n8
n8 Del. C. § 4214 states in pertinent part: (a) Any person who has been 3 times convicted of a felony . . . and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this section shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title . . .
17. Reeder argues that § 4214 permits a court to use its discretion in determining if a defendant is a habitual offender. Reeder notes that the statute's language uses the word "or" in the phrase "fourth or subsequent conviction," and argues that this indicates that the section is discretionary, otherwise the word "and" would be used in order to make the section mandatory. This statutory language Reeder argues, implies that the sentencing court, following a third felony conviction, has discretion to declare a defendant an habitual criminal on one or all convictions. Reeder argues that since declaring habitual offender status is discretionary, the Superior Court erred when it granted the State's motion for correction of sentence and sentenced him as an habitual offender on all 14 counts as if it were mandatory.
18. We disagree that habitual offender status is discretionary under § 4214. Each separate burglary conviction requires a separate sentence. Because of this, the State has the discretion to seek habitual offender status for each count or none. Delaware law clearly indicates that "where the State initiates the habitual offender process, the court is limited to granting only the result sought by the State." n9 We conclude that the phrase "fourth or subsequent conviction" merely recognizes the possibility that defendants may have more than three prior felony convictions and that the use of the word "or" does not imply that the courts have discretion in determining habitual offender status. Simply put, the General Assembly, in enacting § 4214, limited the Superior Court's sentencing discretion once the State properly initiates the habitual offender status process. Therefore, the Superior Court did not err when it corrected Reeder's sentence and resentenced him as an habitual offender on each burglary count.
n9 Kirby v. State, 1998 Del. LEXIS 147, Del. Supr., No. 344, 1997, Walsh, J. (Apr. 13, 1998) (ORDER).Reeder v. State, 783 A.2d.
Crosby requires the Court to consider whether the sentence imposed on a conviction is greatly disproportionate to the conduct being punished. The Court does not look at the total sentence, which was lengthy due to the multitude of convictions. Instead, it looks at the sentence imposed on each burglary conviction, which was the minimum sentence possible. The sentence on each conviction was not greatly disproportionate to the conduct being punished. Defendant's motion for correction of an illegal sentence is denied.
For the forgoing reasons, I deny defendant's motion for postconviction relief and motion for correction of illegal sentence.
IT IS SO ORDERED.