Date Submitted: May 9, 2013.
Defendant's Pro Se Motion for Postconviction Relief.
Calvin L. Scott, Jr. Judge.
Upon consideration of the Defendant's Pro Se Motion for Post-conviction Relief and the Commissioner's Report, the Recommendation that Defendant's Pro Se Motion for Post-conviction Relief Should be Denied, the Defendant's Appeal from the Commissioner's Report and the record in this case, it appears that:
On January 18, 2011, Defendant, Jason Myers ("Myers") pled guilty to one count of Robbery Second Degree. As part of the plea agreement, Myers agreed to be sentenced as a habitual offender pursuant to 11 Del. C. §4214(a). The State, in return, agreed to cap the sentence recommendation at 5 years at Level 5. On March 25, 2011, the defendant was declared a habitual offender and sentenced to 5 years at Level 5. On December 8, 2011, Myers filed a pro se motion for modification of sentence. In this motion, Myers requests modification of his sentence on three grounds: (1) Mental Health Care, SCI has a history of treating and providing for his mental health needs; (2) His supportive family member lives in Sussex County; and (3) When his sentence is complete, he will be residing in Sussex County with a family member. The transition, as outlined in his motion, would be easier in terms of living with his family and obtaining services. The Motion for Modification of sentence was denied on January 11, 2012 by the Honorable John Parkins.
On March 12, 2012, Myers filed the current motion for Post-conviction relief. In his motion, Myers raises three grounds for Post-conviction relief. Specifically, he claims that he received ineffective assistance of counsel based on: (1) Failure to Argue Diminished Capacity; (2) Failure to Communicate; and (3) Failure to Investigate. On March 20, 2013, the Court referred this motion to Superior Court Commissioner Michael Reynolds pursuant to 10 Del. C. §512(b) and Superior Court Criminal Rule 61 for proposed findings of facts and conclusions of law. The Commissioner issued a briefing schedule on April 3, 2012. On June 14, 2012, Myers filed a pro se Motion for Appointment of Counsel. On September 18, 2012, Myers filed a pro se Motion for Response to Post-conviction Motion. On September 26, 2012, Commissioner Reynolds filed an Amended Order of Briefing. On November 9, 2012, an Affidavit of Counsel in Response to Rule 61 Post-conviction Relief was filed by Mr. DelCollo. On November 28, 2012, Myers filed a pro se Motion for Response. On November 29, 2012, Commissioner Reynolds filed a letter order to counsel and Myers forwarding a copy of Mr. DelCollo's Affidavit thereby making Myers November 28, 2012 Motion for Response Moot and hereby Denied.
On December 13, 2012, Myers filed a reply to the Affidavit of Counsel. On December 14, 2012, Commissioner Reynolds issued a letter order to counsel and Myers indicating the Defendant's Reply to Affidavit of Counsel in Response to Rule 61 Post-conviction Relief is returned unread. The letter order further explained that Myers December 13, 2014 "Reply" was not authorized by the briefing order issued and that only one reply is permitted by Myers and should be incorporated into Movant's reply brief. On January 15, 2013, the State filed a response to Myers' Motion for Post-conviction Relief. On January 31, 2013, Myers filed a reply brief. On April 29, 2013, the Commissioner filed a Report and Recommendation that Myers' Pro Se Motion for Post-conviction Relief should be Denied. Myers' then filed an appeal from the Commissioner's "Report and Recommendation" on May 9, 2013.
Before addressing the merits of a postconviction relief claim, the Court must first determine whether the claims pass through the procedural filters of Rule 61(i). Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within one year of a final order of conviction; 2) any ground for relief that was not asserted in a prior post conviction proceeding is thereafter barred; 3) any ground for relief must have been asserted at trial or on direct appeal as required by the court rules; 4) any ground for relief must not have been formerly adjudicated in any proceeding leading to the judgment of conviction. The Postconviction Relief Motion is timely filed and not repetitive. The Court will, therefore, consider the merits of the Motion.
In order to establish ineffective assistance of counsel, Movant must satisfy both prongs of the analysis of such claims established in Strickland v. Washington.
The Strickland test requires the Movant to show first 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 errors 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.
Ground One of Myers' Motion argues ineffective assistance of counsel because trial counsel failed to argue diminished capacity. Myers claims he was under the influence of mind altering psychotropic and/or psychological drugs at the time of the plea. In the Affidavit of Counsel , Trial Counsel states:
"Based on Counsel's many interactions with Mr. Myers, review of the facts of the case, review of the Public Defenders' intake interview and review of Mr. Myers previous Public Defender case files, it was determined that Mr. Myers mental health issues did not rise to a potential legal defense of his crimes and, therefore, there was no basis to file for a competency evaluation/hearing."
Trial Counsel's Affidavit further states:
"Counsel also reviewed case files for Mr. Myers previous criminal cases. Counsel reviewed a Public Defender PFE Report from 2007 which concluded that Mr. Myers does suffer from mental health issues, however, it is his inability to stop using ...