Opinion
Cr.A. IN99-06-1635RI through 1636RI
Submitted: October 30, 2002
Decided: November 7, 2002.
Upon Consideration of Defendant's Motion for Postconviction Relief — DENIED
ORDER
From the Petitioner-Defendant's motion to for Post Conviction relief pursuant to SUPER.CT.CR.R. 61, and responses from both, Defendants public defender, and the State, it appears that:
(1) Defendant-Petitioner Clarence Word ("Word") was indicted in 1999 on charges of Possession With Intent to Deliver Heroin, and the Use of a Dwelling for Keeping Controlled Substances.
(2) On June 17, 1999, Word was placed under police surveillance based upon a confidential informant's tip that he was selling heroin out of his place of employment, and that he stored the narcotics at his residence. At the time, Word was on probation for previous offenses that are not relevant to the disposition of this matter.
(3) During surveillance, Word's probation officer, Raymond DiClementi, called to Word from a parked car. Upon spotting DiClementi, Word immediately ran into his place of employment and up to the third floor of the building. Officer DiClementi and his partner gave chase, all the while demanding that Word stop. Word was out of eyesight for a few moments prior, then he was apprehended. The Officers informed Word of the informants allegations. Word denied all involvement, was arrested and his person was searched. The officers did not find drugs on Word or in the immediate surrounding area.
(4) Shortly thereafter, the Officers took Word to his residence at his mothers home. Word resided in an upstairs bedroom. The officers secured his mothers verbal and written consent to search the home and particularly, Word's bedroom. His mother directed the officers there. Officer DiClementi found seven bags of heroin in a cigar box on Words nightstand. Word himself directed the officers to an additional twenty-six bags of heroin in the pocket of his shirt that was hanging in the room.
(5) The narcotics were properly seized, tested and stored as evidence for trial. Word was convicted by the jury on April 18, 2001.
(6) After a hearing in this Court, Word was granted leave to pursue his direct appeal to the Delaware Supreme Court pro se. Word cited four bases for his appeal: (i) the warrantless search of his bedroom by his probation officer violated DEL. CODE ANN. tit. 11 § 4231, and his constitutional rights, (ii) he was not made aware of the identity of the confidential informant the court ruled was to remain confidential, (iii) the chain of custody for his narcotics was broken, and (iv) the trial court abused its discretion. The Supreme Court found all arguments to be without merit and affirmed the conviction.
Word v. State, 782 A.2d 268 (Del. 2001).
(7) Since Word has filed a petition for post conviction relief and numerous other papers which do no comport with the rules of this court, a brief outline of Word's papers follows:
(A) On May 13, 2002, Word filed his original petition for post conviction relief. Words motion was rejected for procedural errors and later properly re-filed. On June 4, 2002, this Court forwarded a copy of Words motion to Deputy Attorney General Joelle M. Wright ordering the State to respond pursuant to Super.Ct.Cr.R. 61(f).
(B) On June 12, 2002, Word filed a thirty-seven (37) page, handwritten amendment to his original petition and attached an eighty-one (81) page appendix titled "Amendment and Supplement with New Argument and Appendix." Additionally, by correspondence sent directly to the Court, Word demanded a duplicate photocopy of his amended motion. The State responded to Words original petition on June 13, 2002, the day after Words amended petition.
(C) Again on June 14, 2002, Word wrote a letter to the Court requesting an explanation of why defense counsel had not been asked to respond. On June 19, 2002, defense counsel was ordered to respond to Words petition within 30 days. (D) On June 20, 2002, Word filed his response to the States answer. Word's response argued additionally that (1) defense counsel failed to interview any witnesses to discover that Word's brother was to exercise his fifth amendment right against self incrimination by refusing to testify as to the ownership of the narcotics, and (2) that defense counsel was derelict in proving police deceit regarding a consent form signed by Words mother.
(E) On June 24, 2002, four separately addressed letters were received from Word. The first and second, addressed generally to the Prothonotary, averred that the Court had not received Word's amended complaint. The third, addressed to the Court directly, was a reminder of Word's amended complaint. The fourth, was address directly to Prothonotary Sharon Agnew, and incorrectly cited that his amended complaint did not appear on the record.
(F) July 18, 2002, Word sent another letter requesting a copy of his amended complaint.
(G) July 31, 2002, he filed a motion for summary disposition stating that defense counsel failed to timely respond to Words petition as ordered by the Court; defense counsel responded on the same day. Defense counsel filed a response on August 5, 2002. Word next responded to defense counsels response on August 6, 2002. Then, Word filed additional papers on August 12, moving to strike defense counsels response and renewing his motion for summary disposition.
(H) Word next, on August 19, 2002, filed his response to defense counsels response to his original and amended petition for post conviction relief.
(I) On October 9, 2002, Word filed a petition requesting court appointed counsel to pursue post conviction relief. This petition was denied. Word then sent a letter to this Court requesting an update on the status of his July 31, August 6, and August 12 motions.
(J) Finally, on October 30, 2002, Word filed a motion to have funds appointed for expert testimony, or in the alternative, a court appointed expert in accordance with Delaware Rules of Evidence "702, 703, 704, 705, and 706(a), (b), (d). . ." for purposes of aiding Word's prosecution of the ineffective assistance of counsel claim. Word's request is premised upon the allegation that a court appointed Fourth Amendment expert would aid in the reversal of Words conviction and the ultimate disposition of this matter.
(8) Considering all submissions, Word appears to claim that his counsel was ineffective. 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."
(9) First, Word claims ineffective assistance of counsel in that his counsel failed to investigate and prepare for trial by not filing a motion to suppress evidence, failed to challenge the validity of his mother's consent to the search of her home, and advised him that no arguable issues existed for his direct appeal.
(10) All the issues Word raises here have previously been reviewed and decided by the Supreme Court. There was no basis for a motion to suppress. On direct appeal, the Supreme Court determined that the search of Word's bedroom, and the seizure of drugs from the bedroom, were pursuant to the valid consent of Word's mother. The validity of Word's mother's consent was uncontested; she testified at the trial that her consent was voluntary. The complaint Word was informed that he had no issues for a direct appeal is specious; his attorney was required to inform Word if counsel concluded, after conscientious examination of the record, that an appeal was without merit.
(11) Secondly, Word claims that "the trial court erred as a matter of law and abused its discretion when it improperly placed burden of prosecuting a direct appeal of right on the defendant at pro se." Word sought leave to pursue an appeal pro se. The risks of proceeding on his own behalf were part of the colloquy. Word knowingly, voluntarily, and intelligently accepted these risks. Having been unsuccessful in the appeal, Word cannot charge his counsel with the consequences of his own decision.
Word continuously requested copies of his filings and other related papers stating that (i) he was an indigent, incarcerated defendant without the means to use the photocopy machine available to him in the state correctional facility, and (ii) that receiving copies of his documents was critical as he had attached his only original copies to his post conviction relief petition and related papers filed with the Court.
The Court takes notice of Words complaint in that defense counsel filed a response to Words amended petition in an untimely manner. Given the voluminous filings by Word in this matter, however, and the time required by all involved to address each issue, Word was not prejudiced by defense counsels action and this Court will not further entertain the complaint.
See Word v. State, Cr.A. Nos. IN99-06-1635RI, and IN99-06-1636RI, Del Pesco, J. (Order, Oct. 22, 2002) available at 2002 WL 31412533 (Del.Super.).
See Strickland v. Washington, 466 U.S. 668, 688, 694, reh'g denied, 467 U.S. 1267 (1984).
See SUPR.CT.R. 26(c).
See Word's Amended Petition and Appendix.
Having failed entirely to meet the Strickland test, the motion for postconviction relief is hereby DENIED. In view of Word's propensity for filing papers with the Court, I am instructing the Prothonotary to reject any further filings related to his conviction of April 18, 2000, including reargument of this decision. He may, of course, pursue an appeal to the Supreme Court.
IT IS SO ORDERED