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State v. Swanson

Superior Court of Delaware

January 29, 2018

STATE OF DELAWARE, Plaintiff,
v.
KENNETH R. SWANSON, Defendant.

          Submitted: January 23, 2018

          John 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 DENIED.

          Lynne M. Parker Commissioner

         This 29th day of January 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. In 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.

         2. 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.[1]

         DEFENDANT'S RULE 61 MOTION

         3. On 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.

         4. 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 thereto.[2]

         5. In 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.[3] 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 different.[4]

         6. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[5] 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.[6]Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[7]

         7. In 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 ...


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