Submitted: January 23, 2018
S. Taylor, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Kenneth R. Swanson, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
M. Parker Commissioner
29th day of January 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
November 2016, a Superior Court jury found Defendant Kenneth
R. Swanson guilty of Drug Dealing and related offenses. The
Superior Court sentenced him as a habitual offender to a
total unsuspended sentence of five years plus sixty days at
Level V incarceration followed by probation.
Swanson filed a direct appeal to the Delaware Supreme Court.
On August 21, 2017, the Delaware Supreme Court determined
that the appeal was without merit and affirmed the judgment
of the Superior Court.
RULE 61 MOTION
September 15, 2017, Swanson filed the subject motion for
postconviction relief. Swanson raised two claims of
ineffective assistance of counsel: 1) that his counsel was
ineffective for not introducing certain evidence at trial;
and 2) that his counsel was ineffective for not filing a
motion to suppress.
Before making a recommendation, the record was enlarged and
Swanson's counsel was directed to submit an Affidavit
responding to Swanson's ineffective assistance of counsel
claims. Swanson was afforded an opportunity to submit a reply
order to prevail on an ineffective assistance of counsel
claim, 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 him to show that there is a reasonable probability
that, but for defense counsel's unprofessional errors,
the outcome of the proceedings would have been
allegations of ineffectiveness will not suffice; instead, a
defendant must make and substantiate concrete allegations of
actual prejudice. Although not insurmountable, the
Strickland standard is highly demanding and leads to
a strong presumption that counsel's conduct fell within a
wide range of reasonable professional
assistance.Moreover, there is a strong presumption
that defense counsel's conduct constituted sound trial
Swanson's Rule 61 post conviction relief motion, he
contends that his trial counsel was ineffective for failing
to introduce footage of the incident captured by
"Downtown Visions" security cameras. Swanson's
trial counsel, in his Affidavit in response to Swanson's
Rule 61 motion, explains that he elected not to introduce
this evidence at trial for ...