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State v. Harden

Superior Court of Delaware

February 21, 2017

DARIUS O. HARDEN, Defendant.

          Andrea L. Johnson, Esquire, Deputy Attorney General, Delaware Department of Justice, Attorney for the State.

          Christopher S. Koyste, Esquire, Attorney for the Defendant.



         This 21st day of January, 2017, upon consideration of defendant Darius Harden's amended motion for postconviction relief (hereinafter "Motion"), I find and recommend the following:

         Facts and Procedural Background

         On July 8, 2013, Harden was indicted by a Grand Jury for the crimes of Home Invasion, Assault in the Second Degree, Terroristic Threatening, Theft, Offensive Touching and Endangering the Welfare of a Child. On March 10, 2014, Harden pleaded guilty to one count of Assault in the Second Degree.[1] A presentence investigation was order and sentencing occurred on May 30, 2014. As contemplated by the express terms of the guilty plea agreement signed by Harden, the State filed a motion to declare him a Habitual Offender pursuant to 11 Del. C. §4214(a). Harden's plea agreement was a global one in that it encompassed two separate cases and a pending violation of probation. As part of the plea agreement, the State agreed to cap its Level V recommendation at 15 years. At sentencing, Harden was declared a Habitual Offender and sentenced to 18 years at Level V with no probation to follow.

         Harden did not appeal his conviction to the Delaware Supreme Court. However, Harden did file a motion for reduction of sentence pursuant to Superior Court Crim. Rule 35(a). This motion was denied by the sentencing judge on December 1, 2014.[2] Harden then timely filed his first pro se motion for postconviction relief in this case on May 5, 2015.

         Pursuant to Superior Ct. Crim. Rule 62, Harden's Motion was referred to the undersigned Commissioner on June 15, 2015. Based upon my initial review of Harden's Motion I did not see the need for an evidentiary hearing. Following a review of Harden's pro se motion I ordered a transcript of the May 30, 2014 sentencing hearing.[3] It should be noted that Harden was represented by two different lawyers, both of whom filed an affidavit in response to Harden's pro se claims. Harden was represented by the Honorable Ferris F. Wharton up to and including the entry of his guilty plea. Upon Judge Wharton's appointment to the Superior Court, Harden's case was transferred to Assistant Public Defender Joseph M. Leager, Jr., who represented him at sentencing.

         On June 3, 2015, the day before the most recent version of Rule 61 took effect, Harden filed a motion for appointment of counsel. On July 13, 2015, the Honorable Vivian L. Medinilla, who was also the sentencing judge, granted Harden's motion for appointment of counsel.[4] Due to a shortage of available lawyers, the Office of Conflicts Counsel was not able to appoint counsel to represent Harden for his postconviction motion until March 24, 2016.[5] On April 26, 2016, 1 issued a new scheduling order that required Mr. Leager and the State to file responses to the amended Motion. On July 18, 2016, with the assistance of counsel, Harden filed an amended Motion for postconviction relief and raised the following two claims:

Ground one: Sentencing counsel was ineffective for failing to meet with Mr. Harden prior to the sentencing hearing to develop a sentencing strategy and to prepare Mr. Harden on providing a mitigating allocution, resulting in prejudice to Mr. Harden [].
Ground two: If sentencing counsel's statements at the sentencing hearing were not made with a strategic purpose, then sentencing counsel was ineffective, resulting in prejudice to Mr. Harden [].

         On August 17, 2017, Mr. Leager filed a supplemental affidavit in response to Harden's amended Motion. On October 14, 2016, the State filed its Memorandum In Opposition to Harden's Motion. On November 16, 2016, Harden filed his Reply to the State's Response.[6]

         Legal Standard

         To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[7] The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires the defendant to show that there is a reasonable probability that, but for defense counsel's unprofessional errors, the outcome of the proceedings would have been different.[8]

         When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong.[9] Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[10] An error by defense counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment.[11]

         In considering post-trial attacks on counsel, Strickland cautions that trial counsel's performance should be reviewed from his or her perspective at the time decisions were being made.[12] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of ...

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