November 20, 2012
STATE OF DELAWARE,
GREGORY F. ROBINSON, Defendant. No. RK08-09-0305-01 PDWPP (F)
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Deborah J. Weaver, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Gregory F. Robinson, Pro se. FREUD, Commissioner March 30, 2012
William L. Witham, Jr. Resident Judge.
On this 20th day of November, 2012, upon consideration of the Defendant's Motion for Postconviction Relief, the Affidavits of prior counsel, the State's Response, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
The Defendant, Gregory F. Robinson ("Robinson"), was found guilty by a jury on October 22, 2008 of one count of Possession of a Deadly Weapon by a Person Prohibited. The State filed a motion to declare Robinson an habitual offender which the Court ordered following a hearing. Robinson was sentenced on December 10, 2008 to a total of 8 years at Level 5, followed by probation.
Robinson, through counsel, timely appealed his conviction to the Delaware Supreme Court which was affirmed on December 8, 2009. Thereafter, on October 6, 2010, Robinson filed a pro se motion for postconviction relief wherein he alleged ten grounds for relief.
The matter was referred to the Court Commissioner for findings of fact and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62. Commissioner Freud has filed a Report and Recommendation recommending that the Court deny defendant's motion for postconviction relief.
NOW, WHEREFORE, 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 30, 2012,
IT IS ORDERED that the thoughtful and precise Commissioner's Report and Recommendation is adopted by the Court and defendant's Motion for Postconviction Relief is denied as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and as previously adjudicated and barred by Rule 61(i)(4).
Dated: March 30, 2012
COMMISSIONER'S REPORT AND RECOMMENDATION
Andrea Maybee Freud Commissioner J.
The Defendant, Gregory F. Robinson ("Robinson"), was found guilty, following a jury trial on October 22, 2008, as charged, of one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del. C. § 1448. The State filed a motion to declare Robinson an habitual offender pursuant to 11 Del. C. § 4214(A). Following a hearing the Court declared Robinson an habitual offender. On December 10, 2008, Robinson was sentenced to a total of eight years incarceration, followed by probation.
Robinson, through counsel, appealed his conviction to the Delaware Supreme Court. The two issues raised on appeal were that: 1) ". . .the Superior Court erred by denying his right of self-representation under the Sixth Amendment, by excluding him from a sidebar conference, " and 2) ". . .that the Superior Court, should have, sua sponte, acquitted him of PDWPP, because the State failed to prove that the steak knife found on Robinson was a 'deadly weapon' as defined in title 11, section 222(5) of the Delaware Code." The Supreme Court, on December 8, 2009, affirmed Robinson's conviction and sentence.
Following are the facts as set forth by the Delaware Supreme Court:
On October 2, 2007, Dover Police Officer Christopher Bumgarner ("Bumgarner") and Probation Officer Kevin McClure ("McClure") conducted a home visit of a probationer at South Queen Street in Dover. During the visit, Bumgarner observed what he believed to be a drug transaction taking place between Robinson and two other men, in a parking lot across the street. Bumgarner and McClure left the home they were visiting and crossed the street.
When Robinson noticed the officers approaching, he began walking away from the parking lot. Bumgarner ordered Robinson to stop and raise his hands in the air. Robinson stopped, and as he raised his hands, Bumgarner saw him toss a plastic bag with a small white object to the ground. McClure then proceeded to handcuff Robinson and asked Robinson whether he had on him anything that was going to poke, stick, or harm McClure during a pat down search. Robinson answered that he had a knife on him. McClure retrieved a steal knife with a 4-3/4 inches-long blade from Robinson's front pants pocket. Robinson was charged with PDWPP.
Before trial, the Superior Court appointed Alexander Funk, Esquire, ("Funk") to represent Robinson. The Court later denied Robinson's motion to appoint new counsel and informed Robinson that he would either be represented by Funk, or proceed pro se. Robinson elected to proceed pro se and the Superior Court, after explaining to Robinson the meaning of self-representation, appointed Funk as standby counsel. The Superior Court ruled that Robinson would remain at counsel table throughout the trial, unless he chose to take the stand and testify.
At trial, Robinson presented an opening statement and cross-examined the two witness for the prosecution. He rested without presenting any witnesses for the defense. Robinson also participated in the prayer conference and gave a closing argument.
Robinson did not participate, however in the one sidebar conference held during his trial, which occurred in response to Robinson's cross-examination of McClure. During the cross-examination, Robinson asked McClure whether 'the suspect [was] on probation?' The prosecutor objected to the question, and asked the trial judge whether she and standby counsel could approach the bench. The judge granted the prosecutor's request. Robinson did not ask to participate in the sidebar conference and did not object to the participation of standby counsel.
A short sidebar conference ensued, in the presence of the jury, during which the trial judge, the prosecutor, and standby counsel, but not Robinson, discussed the content of Robinson's question.FN1 After Robinson's question was clarified, the prosecutor withdrew her objection. The sidebar conference concluded, and the trial judge, announcing no ruling on the prior objection asked Robinson whether he wanted to restate his question. Robinson's cross-examination of McClure then continued.
FN1. The transcript reflects the following discussion at sidebar:
MS. BUSWELL: Did I just hear him say: Have I ever been on probation?
THE COURT: I think that's what he said.
MS. BUSWELL: Is that what you heard him say?
THE COURT: I'm having a hard time hearing.
MR. FUNK: What I heard him say was: Was I the one that was on probation?
MS. BUSWELL: Okay.
MR. FUNK: That's what I thought. I thought he said: Was I the one that was on probation?
MS. BUSWELL: Okay. I will withdraw my objection.
MR. FUNK: I can't hear.
THE COURT: Ask her.
MS. BUSWELL: That's okay. I will just withdraw my objection.
THE COURT: Okay. Thank you.
Next, Robinson filed the instant Motion for Postconviction Relief pursuant to Superior Court Rule 61. In his motion, he raises the following grounds for relief:
Ground One: Probable Cause.
Ground Two: Illegal Search and Seizure.
Ground Three: Miranda Warnings.
Ground Four: Erroneaus (sic) Filing of Police Warrant and Arrest Affidavit.
Ground Five: Trial Court Abused It's Discretion by Denying
Petitioner[']s October 21, 2008 Suppression Motion.
Ground Six: Pro se Rights and the Judge[']s Abuse of Discretion .
Ground Seven: Habitual Offender Status.
Ground Eight: Ineffective Assistance of Counsel. Petitioner was fully taken advantage of by Court appointed lawyer Alexander Funk who "knowingly" helped the State to convict Petitioner. Court appointed lawyer Alexander Funk never discussed Petitioner[']s cas[e] with Petitioner nor even went into details about Petitioner[']s case. Court appointed lawyer Alexander Funk was very, very ineffective towards Petitioner from the start and became very, very hostel (sic) towards Petitioner when Petitioner refused to accept the State[']s plea bargains. Court appointed lawyer Alexander Funk violated the confidentialality (sic) Rule by discussing Petitioner[']s case with correctional officers. Court appointed lawyer Alexander Funk, failed to prepare for trial, failed to investigate, failed to locate or interview witnesses, failed to subpoena witnesses, failed to talk to his investigator named Mark Robinson after sending him to Petitioner to gather information from Petitioner. Court appointed lawyer James Stiller refused to raise grounds for Petitioner. Court appointed lawyer James Stiller was very ineffective in representing Petitioner on direct appeal.
Ground Nine: Racial Profiling.
Ground Ten: Incompetent to Stand Trial.
Under Delaware law, the Court must first determine whether Robinson 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 one year of the conviction becoming final. Robinson'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 Robinson'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.
Several of Robinson's claims were previously raised prior to trial, during the trial or on direct appeal. In each case this Court or the Supreme Court found his claims meritless. Specifically Robinson's first, second and fifth claims were addressed by the Court in response to Robinson's motion to suppress. Robinson's third claim for relief was also addressed by the trial court. Robinson's claim in his sixth ground for relief concerning the sidebar was raised on direct appeal. Finally his seventh ground for relief was addressed at a full hearing prior to his sentencing. Robinson's first, second, third, fifth, a portion of his sixth and his seventh grounds for relief are barred by Rule 61(i)(4).
In order for Robinson to invoke the "interest of justice" exception to Rule 61(i)(4), he must show that subsequent legal developments have revealed that the trial court lacked the authority to convict or punish him, the previous ruling was clearly in error or the factual basis for the previous ruling has changed in such a way that renders the earlier ruling fundamentally unjust. The court is not required to reconsider an issue simply because the defendant has "refined or restated his claim." Thus, only if Robinson can establish that ". . .the previous ruling was clearly in error or there was an important change in circumstances, in particular, the factual basis for issue previously pose, " is he entitled to review. Robinson has failed to allege any facts or legal developments which would justify review under the "interests of justice" exception, therefore he is not entitled to relief and each of these claims are procedurally barred.
Robinson's remaining grounds for relief were not raised earlier and they are consequently barred by Rule 61(i)(3). Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for relief from the procedural default; 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 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."
Only Robinson's eighth claim is premised on allegations of ineffective assistance of counsel. Robinson has therefore alleged sufficient cause for not having asserted this ground for relief at trial and on direct appeal. However Robinson gives no reason for his failing to have raised his fourth, a portion of his sixth ground for relief, ninth or tenth grounds earlier and consequently they are procedurally barred for his abject failure to allege cause or prejudice. Robinson's ineffective assistance of counsel claim is not 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 Robinson, 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:
[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;' [i]neffective assistance of counsel then is cause for a procedural default.
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.
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.
Generall y, 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, Robinson 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." Robinson has failed to make any allegations of prejudice arising from his counsel's alleged ineffective representation and has not made any concrete allegations. Therefore his claims are clearly barred by Rule 61(i)(3).
Robinson's allegations regarding Mr. Funk's ("Funk") representation are skeletal and conclusory. Funk prepared amply for trail as demonstrated in the attached pre-trial motions. Furthermore, Robinson has failed to allege how, but for Funk's actions, the outcome of the trial would have been different. The State's burden in this case was proof beyond a reasonable doubt. However, all that the State was required to prove in this matter is that Robinson possessed a deadly weapon and that he was a person prohibited. It is impossible to understand how any witness would have changed the outcome of the trial. Funk addressed the confidentiality allegation in his affidavit by explaining that he was informing the Department of Corrections what Robinson planned to do so that they could either keep him at the courthouse or take him back to the prison.
As to Mr. Stiller ("Stiller"), Robinson alleges that "James Stiller was very ineffective in representing Petitioner on Direct Appeal." This statement is the epitome of a skeletal and conclusory allegation. Stiller has submitted a complete affidavit which includes some of his communications with Robinson. Stiller did raise two grounds on Robinson's behalf. Stiller has an obligation to the Court and is not required to raise meritless claims simply because Robinson wanted him to raise them.
In sum, Robinson has failed to meet the procedural requirements of Superior Court Criminal Rule 61 and/or failed to allege how his attorneys' performances fell below an objective standard of reasonableness. Nor did Robinson make concrete allegations of actual prejudice resulting from ineffective assistance of counsel. Clearly Robinson has failed to overcome the bars of Rule 61(i)(3).
After reviewing the record in this case, it is clear that Robinson has failed to avoid the procedural bars of Rule 61(i). A review of his counsels' affidavits clearly shows that counsel represented Robinson in an exemplary fashion and were in no way ineffective. Consequently, I recommend that Robinson's motion be denied as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and as previously adjudicated and barred by Rule 61(i)(4)