Submitted: March 24, 2015
On Defendant's Amended Motion for Postconviction Relief.
Caterina Gatto, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kevin P. Tray, Esquire, Wilmington, Delaware, Attorney for Defendant.
RICHARD R. COOCH, R.J.
This 8th day of June, 2015, upon consideration of Defendant's Amended Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Andre Walker was found guilty in November 2010 of one count of Robbery in the First Degree, one count of Possession of a Deadly Weapon During the Commission of a Felony, two counts of Aggravated Menacing, one count of Criminal Mischief, and one count of Resisting Arrest. Defendant was sentenced as a habitual offender in January 2011 to life plus ten years at Level V. The Delaware Supreme Court affirmed Defendant's convictions and sentences on appeal on September 6, 2011.
2. Defendant filed his first Motion for Postconviction Relief in January 2012. That motion was denied by this Court in April 2013 and the Delaware Supreme Court, upon appeal by Defendant, reversed the Superior Court's April 2013 judgment and remanded the case for the appointment of counsel.
3. Counsel was appointed, and Defendant, through counsel, filed the instant Amended Motion for Postconviction Relief on November 17, 2014. The State filed a response but the Defendant never filed a reply, although given the option. Also filed were affidavits by Defendant's trial counsel John S. Edinger, Jr., and appellate counsel Bernard J. O'Donnell.
4. Defendant's Amended Motion for Postconviction Relief sets forth four claims for relief, which may be fairly summarized as follows:
(1) Trial counsel was ineffective for failing to request proper cautionary instructions regarding Andre Walker's wearing prison attire during the trial;
(2) Trial counsel was ineffective for failing to request that the jury be instructed properly on the charge of Robbery First Degree in conformity with Delaware Law and for failing to request a lesser included offense charge of Aggravated Menacing to the charge of Robbery First Degree;
(3) Appellate Counsel was ineffective for failure to pursue a non-frivolous appeal of the denial [of] trial counsel's ...