Robert H. BURNS, Jr., Defendant Below-Appellant,
STATE of Delaware, Plaintiff Below-Appellee.
Submitted: Aug. 6, 2013.
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Court Below: Superior Court of the State of Delaware in and for New Castle County, ID No. 0605017137.
Upon appeal from the Superior Court. AFFIRMED.
Eugene J. Maurer, Jr., Esquire, of Wilmington, Delaware for Appellant.
Elizabeth R. McFarlan, Esquire, and Josette D. Manning, Esquire (argued), of the Department of Justice, Wilmington, Delaware for Appellee.
Before BERGER, JACOBS and RIDGELY, Justices.
Robert Burns was convicted by a Superior Court jury of several counts of varying degrees of sexual assault against children. We have affirmed Burns' conviction on direct appeal. Now, Burns seeks post-conviction relief and argues that he received inadequate assistance of counsel in violation of the Sixth Amendment to the United States Constitution. Burns claims his trial counsel erred in the following ways: by not affirmatively recommending Burns take an plea deal, by eliciting testimony from an adverse witness that could have implied Burns invoked his Fifth Amendment right to silence, by waiving certain foundational requirements to out-of-court statements, by permitting a characterization of the complaining witnesses as " victims," and by failing to object to the State's summation. Finally, Burns claims that the cumulative effect of his defense counsel's actions resulted in an unfair trial. The Superior Court adopted the findings of a Commissioner and denied Burns' motion for post-conviction relief. We find no abuse of discretion in the Superior Court's denial of Burns' motion for postconviction relief. Accordingly, we affirm.
Facts and Procedural History
In April of 2006, Robert Burns (" Burns" ) attended the twelfth birthday party of his niece Sara Ames. Upon seeing Burns, Sara's sister, Tina, recalled several occasions when Burns had inappropriately
touched her. Tina conferred with Sara, who also recalled several similar incidents. Eventually, Tina and Sara Ames informed their parents of these incidents. Delaware State Police investigated the claims and arrested Burns.
Prior to trial, the prosecutor met with Burns' defense counsel (" Counsel" ), to propose a plea offer. The prosecutor offered to permit Burns to plead guilty to two counts of Unlawful Sexual Contact in the Second Degree, and the State would recommend a probationary sentence. Burns would also have to register as a sex offender. Counsel conveyed the terms of the plea deal to Burns. Burns decided not to take the deal.
Burns was convicted by a Superior Court jury of Rape Second Degree, two counts of Unlawful Sexual Contact Second Degree, and one count of Continuous Sexual Abuse of a Child. The jury found Burns not guilty on all charges relating to Tina, except for one count of Unlawful Sexual Contact Second Degree. On that charge the jury could not agree. Burns was sentenced to 41 years in prison, suspended after 35 years for two years of probation. We affirmed on direct appeal.
Burns moved for postconviction relief through new counsel, alleging that he was denied his Sixth Amendment right to counsel. The Superior Court adopted a Commissioner's Report and Recommendation, denying Burns' motion for postconviction relief. This appeal followed.
During the pendency of this appeal, the United States Supreme Court decided Lafler v. Cooper,  where the Court addressed for the first time a claim of ineffective assistance of counsel that caused the rejection of a plea offer and the imposition of a more severe sentence. The Court in Lafler determined that a defendant's Sixth Amendment right to counsel extended to the plea bargaining process. We remanded this case to the Superior Court to address the application of Lafler.  The Superior Court considered the application of Lafler and denied Burns' motion for postconviction relief.
We review the Superior Court's denial of a motion for post-conviction relief for abuse of discretion. We review questions of law arising from the denial of a motion for post-conviction relief de novo. 
" [I]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defense."  Counsel must " consult with the defendant on important decisions and [must] keep the defendant informed of important developments in the course of the prosecution."  Under the Strickland test for ineffective assistance of counsel, petitioner 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."  In order to meet the second prong of the Strickland test, Petitioner has the burden to " affirmatively prove prejudice."  The Strickland test applies to Counsel's actions during plea negotiations as well as during the trial proceedings. Prejudice in the context of plea negotiations is demonstrated when:
[B]ut for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's ...