SUBMITTED: October 26, 2017
W. Welsh, Esq.
L. Ewert, Esq.
Paris Boyer ("Defendant") has filed his first
Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 ("Rule 61"). For the reasons
expressed below the motion DENIED.
November 30, 2015 to December 7, 2015, Defendant went to
trial for the charges in case # 1409003291 A. The verdict was
mixed. Defendant was found guilty of one count of Second
Degree Conspiracy, two counts of Theft less than $ 1, 500.00,
one count of Theft by False Pretenses less than $1, 500.00,
and one count of Third Degree Burglary. The jury either
acquitted Defendant or was hung on the remaining charges.
Rather than retrying the case, the parties agreed to resolve
all of Defendant's pending charges by a plea deal. On
January 22, 2016, Defendant pled guilty to three counts of
Third Degree Burglary, one count of Possession of Burglary
Tools, and one count of Theft less than $1, 500.00 from a
Senior. As part of the plea agreement, Defendant agreed to be
sentenced under 11 Del. C. § 4214(a) as a
habitual offender for one of the Third Degree Burglary
charges. On March 18, 2016, after review of the pre-sentence
investigation, Defendant was sentenced to 15 years at Level
Five as a habitual offender for one Third Degree Burglary
charge. He received probation for the remaining charges.
Defendant appealed his sentence to the Delaware Supreme
Court. On November 29, 2016, the Supreme Court mandate was
filed, finalizing the conviction.
October 26, 2017, Defendant filed his first Motion for
Postconviction Relief. He makes three claims: (1) that the
plea he took with regard to the B and C portions of his
charges also included charges from the A case for
which he had been convicted by the jury; (2) that trial
counsel did not inform him that he was waiving his trial and
appeal rights by taking the plea, making it so the plea was
not entered into knowingly, voluntarily, and intelligently;
and (3) that the Superior Court's denial of his Motion to
Suppress was contrary to law.
first step in evaluating a motion under Rule 61 is to
determine whether any of the procedural bars listed in Rule
61(i) will force the motion to be procedurally
barred. The first two arguments Defendant advances
are not procedurally barred. However, his third argument,
that the denial of his Motion to Suppress was contrary to law
is barred by Rule 16(i)(4). If a ground for relief was
formerly adjudicated, it cannot be asserted in a motion for
postconviction relief. This includes decisions that were made
in the proceedings leading to the judgment of conviction.
Thus, the legality of Judge M. Jane Brady's denial of
Defendant's Motion to Suppress on April 2, 2015 cannot be
first argument is that some of the charges he pled to after
he was convicted by a jury in the A case are the same as
those to which he later pled guilty. The fact that Defendant
was convicted of one count of Burglary in the Third Degree by
the jury and then later pled to three counts of Burglary in
the Third Degree does not mean that he was convicted twice
for the same offense. These charges did not arise out of the
same facts, as is shown in the indictments for both cases.
Therefore, Defendant was not convicted of the same crime
twice. His argument for postconviction relief on this basis
also argued that trial counsel did not inform him that he was
waiving his trial and appeal rights by taking a plea. As a
result, Defendant asserts that he did not enter his plea
knowingly, intelligently, and voluntarily. This is,
essentially, an ineffective assistance of counsel claim. To
prevail on such a claim, Defendant must meet the two-prong
test laid out by the United States Supreme Court in
Strickland v. Washington Somerville v. State
laid out the applicable standard in the context of a guilty
Strickland requires a defendant to show that: (1)
counsel's representation fell below an objective standard
of reasonableness, and (2) counsel's actions were so
prejudicial that there was a reasonable probability that, but
for counsel's errors, the defendant would not have
pleaded guilty and would have insisted on going to
trial...[R]eview is subject to a strong presumption that
counsel's conduct was professionally reasonable. The
purpose of this presumption is to eliminate the distorting
effects of hindsight in examining a strategic course of
conduct that may have been within the range of professional
reasonableness at the time.
argues ineffective assistance of counsel based upon the
assertion that he was unaware that taking a plea would take
away his ability to challenge the previous suppression
decision. If he had known this information, Defendant would
not have agreed to the plea deal. The Court is not persuaded
by this argument. Examination of the plea colloquy shows
that. Defendant was not misled regarding his trial and appeal
rights, and that he was satisfied with his legal
representation. The relevant portion of the plea colloquy
reads as follows:
MR. WELSH: Mr. Boyer understands that by pleading guilty
today he waives any rights to appeal that he would have had
under the charges that he was found guilty of at trial, as
well as any suppression issues that he previously waived.
* * *
THE COURT: Nobody can force you to plead guilty, sir, because
when you do that, you incriminate yourself and you lose
valuable trial and appeal rights and you expose yourself to
the penalties of law. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Is anybody forcing you to ...