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State v. Weber

Superior Court of Delaware

August 22, 2017

PAUL WEBER, Defendant.

          Submitted: July 28, 2017

          Andrew J. Vella, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Michael W. Modica, Wilmington, Delaware, Attorney for Paul Weber.


          Katharine L. Mayer, Commissioner

          This 22nd day of August, 2017, upon consideration of Defendant's Motion for Postconviction Relief and the record in this matter, the following is my Report and Recommendation.


         Mr. Weber's case has a long and complicated history with the courts. The docket reflects almost three hundred entries and a timeline dating back almost thirteen years. Rather than attempting to address the full history of this matter, some of the relevant procedural aspects of this long and protracted case will be set forth herein in order to provide context for the remainder of the opinion.

         Paul E. Weber, Defendant, was originally indicted in this matter on September 20, 2004 on charges of Attempted Carjacking and Attempted Robbery First Degree. The charges arose from an incident that occurred on August 18, 2004 when Defendant approached Frederick Naspo at a gas station, and after the two exchanged words, there was a brief struggle and Defendant fled. Naspo testified that the man that approached him, said "I'm going to take your car, " and while attempting to wrestle away Naspo's car keys, told him that he had a gun.[1] The State police later reviewed the gas station's video surveillance system and Defendant was identified as the man involved in the altercation. One of the police officers assigned to the investigation recognized Defendant from the video and testified at trial that the man in the video had the same facial features as Weber and was wearing the same clothing as Weber when he was detained. In March 2005, following a jury trial, Defendant was convicted of both charges.

         Defendant was sentenced and later appealed his conviction and sentences. The Delaware Supreme Court affirmed the conviction for Attempted Carjacking First Degree but reversed the conviction of Attempted Robbery First Degree and remanded the matter for a new trial to allow an instruction on the lesser included offense of Offensive Touching. In April 2010, a jury once again convicted Defendant of Attempted Robbery First Degree. Soon thereafter, the Court granted the State's motion to declare Defendant an habitual offender for sentencing purposes pursuant to 11 Del. C. §4212(a) (the "Habitual Offender Statute"). The habitual offender determination included consideration of the predicate conviction of Forgery Second Degree from 2001 that resulted in a sentence of 30 days. Defendant was eventually sentenced in this matter to 25 years at Level V for the Attempted Robbery First Degree conviction.[2] This decision was also appealed and affirmed by the Delaware Supreme Court on February 21, 2012.[3] Defendant later filed a Petition for a Writ of Certiorari with the United States Supreme Court that was denied on October 1, 2012.

         Defendant's pro se motion for postconviction relief was filed on August 6, 2013. Through an Opinion issued on July 29, 2014, the Court stayed the motion and granted a motion for appointment of counsel to represent the Defendant through the postconviction process. The record was enlarged and appointed counsel filed an amended motion for postconviction relief on March 24, 2017 (the "Amended Motion"), [4] the State submitted a response, [5] and counsel for Defendant replied.[6]Defendant's Amended Motion also seeks a fact finding hearing to address his claims.[7]


         The Court must first determine whether there are any procedural bars to the motion before considering the merits of the claims.[8] As an initial matter, the State argued that Defendant's motion is barred by Superior Court Criminal Rule 61(i)(1) for having been filed more than one year after the judgment of conviction became final. On February 21, 2012, the Delaware Supreme Court issued an Order affirming the Superior Court judgment of conviction. However, if additional relief is sought, then the judgment of conviction becomes final when the United States Supreme Court issues a mandate or order finally disposing of the case on direct review.[9]Therefore, Defendant's conviction became final for purposes of Superior Court Criminal Rule 61 on October 1, 2012 when the Petition for a Writ of Certiorari was denied. Defendant's motion, having been filed on August 6, 2013, was timely.

         However, Defendant's claims face additional procedural hurdles. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is barred, unless the movant can show cause for relief from the procedural default and prejudice from a violation of the movant's rights.[10] And, any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.[11]

          The procedural bar in Rule 61(i)(3) set forth above, will not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.[12] However, this exception does not allow consideration of claims that are barred as formerly adjudicated under Superior Court Criminal Rule 61(i)(4). Ineffective assistance of counsel claims cannot be raised at any earlier stage in the proceedings and are properly presented by way of a motion for postconviction relief.[13] The fact that counsel did not raise an argument or objection during the trial proceedings does not bar a defendant from alleging that counsel's failure amounted to ineffective assistance.[14]

         In order to prevail on an ineffective assistance of counsel claim, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and the deficiencies in counsel's representation caused the defendant actual prejudice.[15] When reviewing such a claim, the Court must analyze counsel's conduct based upon all of the facts of the case and avoid peering through the lens of hindsight.[16] Defendant must show that any alleged errors were so serious that his counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.[17] "A defense attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities."[18] Great weight and deference are given to tactical decisions by the trial attorney and counsel cannot be deemed ineffective for failing to pursue motions that lack merit.[19] Further, in order to prevail on an ineffective assistance of counsel claim, a defendant must show that but for the errors, there is a reasonable probability that the outcome of the proceedings would have been different.[20] Defendant must overcome a strong presumption that counsel's conduct was reasonably professional under the circumstances.[21]


         Defendant's motion asserts six bases for relief;

Ground One: Application of the Habitual Offender Statute violated Defendant's constitutional due process rights because it was based on a conviction that was unappealable;
Ground Two: The Habitual Offender Statute violates the Equal Protection Clause because similarly situated offenders could challenge their convictions;
Ground Three: Trial counsel was ineffective for not objecting to the prosecutor's use of the term "victim" at trial;
Ground Four: Trial Counsel was ineffective by using the term "victim" throughout the trial;
Ground Five: Trial counsel was ineffective for not pursuing a renunciation defense and instruction;
Ground Six: Trial and appellate counsel were ineffective for not raising the arguments set forth as Grounds One through Five.

         A careful review of the extensive record in this case, as well as the briefs presented by the parties, leads to the conclusion that each of the claims presented by Defendant should be denied.

          Ground ...

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