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Brokenbrough v. State

Supreme Court of Delaware

November 25, 2008

Rory BROKENBROUGH, Defendant Below, Appellant,
v.
STATE of Delaware, Plaintiff Below, Appellee.

Editorial Note:

This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.

Submitted: Aug. 27, 2008.

Court Below-Superior Court of the State of Delaware, in and for New Castle County, Cr. ID No. 0308021468.

Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.

ORDER

HENRY DUPONT RIDGELY, Justice.

This 25th day of November 2008, upon consideration of the appellant's opening brief and the State's motion to affirm, it appears to the Court that:

(1) The appellant, Rory Brokenbrough, filed these appeals from the Superior Court's decisions denying his motion for postconviction relief, amended motion for postconviction relief and other related motions.[1]By Order dated June 16, 2008, the appeals were consolidated. The State of Delaware has filed a motion to affirm the Superior Court judgments on the ground that it is manifest on the face of Brokenbrough's opening brief that the appeals are without merit.[2] We agree and affirm.

(2) In 2005, a Superior Court jury convicted Brokenbrough of Assault in the First Degree, Assault in the Third Degree, Attempted Robbery in the First Degree and Conspiracy in the Third Degree.[3]On direct appeal, this Court affirmed Brokenbrough's convictions.[4]

(3) Brokenbrough filed his motion for postconviction relief in April 2007 and his related amendments and motions in May, October, and November 2007. The Superior Court directed that Brokenbrough's defense counsel file a response to allegations of ineffective of counsel. Also, the State filed responses to the postconviction motion and related motions.

(4) The postconviction claims raised in Brokenbrough's various motions and amendments can be fairly summarized as follows: (a) his conviction for third degree assault as a lesser offense of first degree robbery violated due process; (b) his conviction for first degree assault was defective under Williams v. State; [5] and (c) his counsel was ineffective.[6]The Superior Court denied all of Brokenbrough's claims.[7]

(5) In his opening brief on appeal, Brokenbrough raises three allegations of ineffective assistance of counsel, only two of which he raised in the postconviction proceedings. Brokenbrough's third claim, i.e., that his counsel was ineffective for failing to properly cross-examine the wife of one of the victims, was not raised in any of his postconviction applications and was not considered by the Superior Court.

(6) A claim that is not fairly presented in the trial court, such as Brokenbrough's claim challenging his counsel's cross-examination of the wife of one of the victims, is not considered by this Court unless the interests of justice require otherwise.[8]Conversely, claims that are raised in the trial court but not pursued on appeal, namely all but two of Brokenbrough's postconviction claims, are deemed waived and abandoned and are not addressed by this Court.[9]

(7) In the two claims that are offered for appellate review, Brokenbrough alleges, first, that his counsel did not make efforts to obtain relevant discovery related to a victim's injuries. Second, Brokenbrough alleges that his counsel allowed an improper amendment of the indictment. To prevail on his claims, Brokenbrough must meet the two-pronged Strickland test by showing that his counsel performed at a level below ...


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