L. Johnson, Esquire, Deputy Attorney General, Delaware
Department of Justice, Attorney for the State.
Christopher S. Koyste, Esquire, Attorney for the Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION ON
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF
BRADLEY V. MANDMG, COMMISSIONER.
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:
and Procedural Background
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. 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.
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. Harden then timely filed his first pro
se motion for postconviction relief in this case on May
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. 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.
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. 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. 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 .
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
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. 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
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. Mere allegations of ineffectiveness will
not suffice; instead, a defendant must make and substantiate
concrete allegations of actual prejudice. 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.
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. A fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting efforts of ...