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Harden v. State

Supreme Court of Delaware

March 1, 2018

DARIUS O. HARDEN, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: February 20, 2018

         Court Below: Superior Court of the State of Delaware Cr. ID 1305019629

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.

          ORDER

          Leo E. Strine, Jr. Chief Justice

         This 1st day of March 2018, the Court has carefully considered the State's motion for rehearing en Banc of our February 6, 2018 Opinion, which reversed the judgment of the Superior Court. A majority of this Court concludes that the motion for rehearing en Banc is without merit and should be denied.[1]

         We make just one comment on the State's motion. In its motion, the State does not try to argue that defense counsel discharged his professional duties toward Harden adequately in terms of preparing him for his sentencing hearing. Instead, the motion focuses exclusively on the argument that there is no reasonable probability that if Harden's counsel had performed adequately in preparing for the sentencing hearing, Harden would have received the exact sentence the State was advocating-15 years-rather than the 18 years Harden got. Given that the reasonable probability standard does not mean more likely than not, [2] given the respect that courts traditionally show in considering recommendations made by the State in the sentencing context, and given the deference courts typically show to good faith plea bargains, we do not see a rational basis for the State's contention that the very sentence for which they advocated at the hearing would not have been a reasonably probable outcome of Harden's sentencing hearing had his counsel implemented a reasonable strategy to take advantage of the favorable plea his predecessor had secured.

         NOW, THEREFORE, IT IS ORDERED that the motion for rehearing en Banc is DENIED.

          VALIHURA, Justice, dissenting, with VAUGHN, Justice, joining:

         Given the firm stance of the three justices who heard this case as the original Panel, we see no point to a rehearing. But we respectfully dissent in the denial of rehearing en banc only to make clear that we would have voted to affirm the Superior Court's denial of post-conviction relief. The Superior Court found that, even assuming Harden could show that his counsel's performance at his sentencing hearing could satisfy Strickland's first prong, [3] Harden had failed to show a reasonable probability that, but for defense counsel's unprofessional error, the outcome of the proceeding would have been different. The Panel declines to defer to that judgment.

         As our colleagues on the Panel acknowledged, the trial judge "was well prepared for the sentencing, knew the record, and gave a reasonable sentence in light of the record before her."[4] Further, this same trial judge considered Harden's Rule 61 petition and, thus, was well-suited to determine whether or not, even assuming the performance of Harden's counsel fell below an objective standard of reasonableness, there was a reasonable probability of a different sentencing outcome. Accordingly, she was in the best position to know whether it was reasonably probable that she would have given Harden a different sentence. As this Court explained in Neal v. State, "[t]he likelihood of a different result must be substantial, not just conceivable."[5] Indeed, the Commissioner similarly observed when reviewing Harden's motion, "under Strickland, the 'probability' of a different outcome does not mean a mere 'possibility'-it is a higher standard."[6]

         The trial judge found ample reason to impose a sentence that exceeded the State's recommendation, and she reaffirmed this view in evaluating Harden's petition for postconviction relief. Specifically, the trial judge agreed with the Commissioner's findings of fact and recommendation, which included the Commissioner's rejection of Harden's claim of prejudice under Strickland. The trial judge found Harden's claims of prejudice "hypothetical at best, " and expressly stated that Harden could not show how his allocution would have changed the Court's decision regarding the sentence.[7] In rejecting Harden's request for post-conviction relief, the trial court emphasized that, prior to the sentencing hearing, it "had a presentence investigation conducted that probed the criminological background to Defendant's underlying conviction" and, as a result, the court "was well aware and amply prepared to impose what it considered an appropriate sentence in this case."[8]

         Even the Panel acknowledged that the record unquestionably supports the departure from the State's recommended sentence.[9] The Panel, again, points out that "[t]he same judge who presided over Harden's sentencing hearing heard Harden's objections to the Commissioner's recommendation and issued a thorough decision explaining why she agreed that his petition should be dismissed."[10] Under these circumstances, we believe that this Court should have deferred to the Superior Court's determination that Harden was not prejudiced by his sentencing counsel's performance and that Harden failed to demonstrate the requisite probability of a different outcome.

         In imposing the sentence, the trial judge did comment on Harden's failure to express remorse. Harden, who had kicked and punched his girlfriend in her face, stomach, and ribs-fracturing her nose and knocking out her teeth in front of her five-year-old son- focused on himself during his allocution and how he had "lost a lot this year." Although the Panel acknowledges the brutality of this attack and Harden's "horrific record of violence, "[11] the Panel hints, or perhaps more overtly suggests, that the sentencing judge reacted emotionally, [12] and that "there is a reasonable probability that the sentencing judge's disturbance by Harden's lack of remorse influenced [Harden's] sentence."[13] This is principally where we part company with our colleagues: we would give the trial judge credit that she did not react emotionally and, instead, we would credit her careful determination (buttressed by the Commissioner's independent review) that she would have given the same sentence.

         Moreover, as the trial judge stated, "[s]etting aside Defendant's failure to express remorse, Defendant is simply unable to prove prejudice under Strickland where the Court's three other aggravating factors bore no relation to Defendant's defaulted opportunity to express true remorse for his conduct."[14] For this additional ...


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