Submitted: February 11, 2015
Upon Defendant’s Motion for Postconviction Relief – DENIED, Upon Motion to Withdraw as Counsel – GRANTED, Upon Defendant’s Motion for Appointment of New Counsel – DENIED, Upon Defendant’s Motion to Expand the Record – DENIED
The Honorable Andrea L. Rocanelli
On June 2, 2010, Defendant, Bryan M. Brochu, and Gregory Walters were drinking at McGlynn's Pub in Newark, Delaware. Both men, while intoxicated, got into a physical altercation in the parking lot. After the fight, Brochu got into his truck, drove around the parking lot "doing donuts" and struck Walters at a speed of forty-four miles per hour. Walters suffered brain damage, leaving him permanently disabled.
On August 2, 2010, Brochu was indicted on six charges: (1) Attempted Murder First Degree; (2) Possession of a Deadly Weapon During the Commission of a Felony; (3) Driving Under the Influence of Alcohol; (4) Spinning Tires; (5) No Proof of Insurance; and (6) Failure to Transfer Title and Registration.
Brochu was represented by Joseph A. Hurley, Esquire ("Trial Counsel"). On February 7, 2011, with the assistance of Trial Counsel, Brochu pled guilty to Assault First Degree, a lesser-included offense of Attempted Murder First Degree, and Possession of a Deadly Weapon During the Commission of a Felony. On April 29, 2011, the Trial Court sentenced Brochu to 20 years at Level V, suspended after 15 years for decreasing levels of probation. The Trial Court also ordered Brochu pay restitution in the amount of $174, 306.09.
On May 4, 2011, Trial Counsel filed a Motion for Reduction of Sentence with supplemental mitigation evidence. On June 16, 2011, the Trial Court modified Brochu's sentence, effectively reducing Brochu's Level V time by three years. On July 6, 2011, the Trial Court again modified Brochu's sentence, this time vacating the previous order of restitution.
On July 13, 2011, Trial Counsel filed an appeal to the Delaware Supreme Trial Court arguing that the Trial Court improperly identified excessive cruelty as an aggravating circumstance in its June 16, 2011 modified sentencing order. On January 26, 2012, while the appeal was pending, Trial Counsel filed a second Motion for Reduction of Sentence with the Trial Court. However, the Trial Court did not address the second Motion for Reduction of Sentence on the merits because the Trial Court did not have jurisdiction during pendency of appeal. In a letter to Trial Counsel, the Trial Court wrote:
I have received your motion for reduction of sentence, but cannot act on it. Since you have appealed the sentence in this case, [the Trial] Court has lost its jurisdiction. At this point, the motion [for a reduction of sentence] is neither granted or denied but will be held pending the outcome of that appeal. Having no idea what the outcome will be, I have to rely upon you, contingent on the outcome of that appea[l], to notify me whether I should act on the motion once the case has been returned to this [Trial] Court.
One week later, on February 21, 2012, the Supreme Court affirmed the Trial Court's sentence, noting that the "trial court was not required to accept Brochu's self-serving claim that the collision was an accident. There was reliable evidence from which the trial court could have concluded that Brochu, in a drunken rage, drove straight at Walters." Subsequently, on March 30, 2012, the Trial Court addressed and denied Brochu's second Motion for Reduction of Sentence.
On February 14, 2013, Brochu filed the pending Motion for Postconviction Relief ("PCR Motion"). By Order dated August 19, 2013, Andrew J. Witherell, Esquire ("Rule 61 Counsel"), was appointed to represent Brochu for the purpose of postconviction relief. On July 7, 2014, Rule 61 Counsel filed a Motion to Withdraw from representing Brochu on the basis that Brochu's postconviction claims were procedurally barred and/or meritless. On September 22, 2014, the State filed a Response to Brochu's PCR Motion and to Rule 61 Counsel's Motion to Withdraw. On February 11, 2015, Brochu filed a Reply to the State's Response and Rule 61 Counsel's Motion to Withdraw.
In addition to expanding upon his postconviction claims, Brochu also filed a Motion to Expand the Record and a Motion for Appointment of New Counsel. This is Brochu's first motion for postconviction relief. Pursuant to Superior Court Criminal Rule 61, it is within the Court's discretion to proceed in a number of different ways. For instance, the Court may summarily dismiss a postconviction motion if it "plainly appears" from the motion and the record that a defendant is not entitled to relief. Otherwise, as is the case here, the Court "shall order the [State] to file a response." Further, although not mandated by Rule 61, the Court "may direct that the record by expanded by the parties by the inclusion of additional materials . . . . [and] may direct the lawyer who represented the movant to respond to the allegations." The Court finds, under the applicable law and upon the record in this case, that it is not necessary to expand the record. In addition, Brochu is not entitled to appointment of different postconviction counsel. Brochu relies on Anders v. California,  to establish that Rule 61 Counsel failed to advocate for him because it filed a "no-merit" letter regarding Brochu's PCR Motion. However, Brochu ignores the following paragraph of the Anders decision, which states, "Of course, if counsel finds [the defendant's] case to be wholly frivolous, after a conscientious examination of it, [counsel] should so advise the court and request permission to withdraw." Indeed, Rule 61 Counsel has examined the record in this case and filed a motion to withdraw. Accordingly, Brochu's Motion to Expand the Record and Motion for New Counsel are hereby DENIED.
II. BROCHU'S MOTION FOR POSTCONVICTION RELIEF
Brochu filed his PCR Motion in 2013. Brochu asserted ten grounds for relief: (1) the Delaware Supreme Court's decision affirming his sentence was an inconsistent application of law; (2) ineffective assistance of Trial Counsel because Brochu's plea agreement to the lesser-included offense was not knowing, voluntary, and intelligent; (3) Brochu's understanding regarding his plea proceedings was not knowing, voluntary, and intelligent; (4) the ineffective assistance of Trial Counsel had a cumulative prejudical effect; (5) ineffectiveness of Trial Counsel during pre-sentencing and sentencing was prejudicial to Brochu; (6) sentencing errors by the Trial Court; (7) the sentence imposed by the ...