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State v. Hunter

Superior Court of Delaware

April 25, 2018

STATE OF DELAWARE, Plaintiff,
v.
WILLIAM HUNTER [1], Defendant.

          Submitted: February 14, 2018

          Annemarie H. Puit, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          William Hunter, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.

          LYNNE M. PARKER COMMISSIONER

          This 25th day of April 2018, upon consideration of Defendant's Motion for Postconviction Relief as to his supplemental appellate claims, it appears to the Court that:

         PROCEDURAL POSTURE OF RULE 61 MOTION

         1. After full briefing on Defendant's Rule 61 motion, the Superior Court issued its decision on September 29, 2017, denying the motion.[2]

         2. Prior to the issuance of its decision, counsel had been appointed to assist Defendant with his Rule 61 motion. Rule 61 counsel subsequently withdrew based on counsel's opinion that there were no meritorious claims that existed to support a Rule 61 motion. Defendant thereafter proceeded pro se with his Rule 61 motion.

         3. Following full briefing on the motion, the Superior Court, in its September 29, 2017 decision, fully and thoroughly addressed all of the claims raised by Defendant in his Rule 61 motion. The Superior Court concluded that Defendant's claims were all without merit. Those claims included trial counsel's alleged ineffectiveness and other substantive claims.[3]

         4. Following the issuance of the Superior Court's decision on Defendant's Rule 61 motion, Defendant requested the opportunity to raise additional claims regarding the alleged ineffectiveness of appellate counsel. The Superior Court granted that request and established a briefing schedule for the presentation of Defendant's appellate counsel claims.[4]

         5. In accordance with the Superior Court's instructions, Appellate Counsel filed an Affidavit responding to Defendant's ineffective assistance of appellate counsel claims, the State filed a response, and Defendant filed a reply thereto. Defendant's appellate claims have now been fully briefed.

         DEFENDANT'S PENDING APPELLATE CLAIMS

         6. The facts and procedural history of this case are set forth in the Superior Court's September 29, 2017 decision denying Defendant's Rule 61 motion.[5]

         7. Briefly, Defendant's convictions stem from his sexual abuse of his daughter beginning in 2008, when she was 12, and continuing until April 2011. The abuse included using a vibrator on her vagina; inserting sex toys and his fingers into her vagina and anus; and forcing her to masturbate him. The abuse continued regularly, several times a week, until April 2011.[6]

         8. Defendant was convicted of ten counts of first degree sexual abuse of child by person in a position of trust (SACPPT)[7], one count of continual sexual abuse of a child, one count of endangering the welfare of a child, and two counts of violation of privacy. Defendant was sentenced to a total of 122 years of unsuspended prison time.

         9. Defendant had been indicted on 25 counts of SACPPT. The jury found Defendant guilty of all 25 counts. Before sentencing, the State advised that SACPPT was not enacted until June 2010, and that 15 of the counts of SACPPT related to a time period before June 2010. Those 15 counts of SACPPT were dismissed by the State prior to sentencing.[8]

         10. Defendant's appellate counsel raised one issue on direct appeal. Appellate Counsel claimed that the evidence supporting those 15 SACPPT charges, that were subsequently dismissed, were highly prejudicial and should not have been admitted at trial.[9]

         11. The Delaware Supreme Court affirmed the judgment of the Superior Court on direct appeal.[10] The Delaware Supreme Court held that Defendant was charged with continuous sexual abuse of a child. That offense requires the jury to find that Defendant engaged in three or more acts of sexual conduct over a period of at least three months. Defendant's sexual abuse of his daughter before June 2010 was probative as an element of that crime.

         12. The Delaware Supreme Court further concluded that the evidence supporting those 15 counts of SACPPT was not unduly prejudicial because of the remaining 10 counts of SACPPT. The jury heard evidence of a pattern of abuse that continued for more than two years. Each count of SACPPT is a separate crime and the jury found Defendant guilty on all 25 charges. Under the circumstances, there was no reason to believe that evidence of the first 15 counts affected the jury's verdict on the remaining 10 counts.[11]

         13. In Defendant's supplemental Rule 61 submission raising his appellate counsel claims, Defendant contends that appellate counsel was ineffective for: 1) failing to appeal the motion for mistrial; 2) failing to appeal the motion to dismiss/motion for judgment of acquittal; and 3) "failing to raise all other grounds."

         14. When evaluating claims of ineffective assistance of appellate counsel, the same Strickland framework applies.[12] Defendant must show that: (1) counsel performed at a level "below an objective standard of reasonableness" and that, (2) the deficient performance prejudiced the defense.[13]

15. As to the first prong, deficient performance, Defendant must show that his appellate counsel was objectively unreasonable in failing to find arguable issues to appeal- that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them.[14] Appellate counsel is not required to, and should not, raise every nonfrivolous claim, but rather should select and advance only the strongest claims in order to maximize the likelihood of success on appeal.[15]

         16. In cases, like the subject action, in which the allegedly ineffective appellate counsel did file a merits brief on direct appeal, the defendant faces a tough burden of showing that a particular nonfrivolous issue was clearly stronger than the issue(s) that counsel did raise on appeal.[16]

         17. In addition to establishing the first prong of the Strickland standard, that appellate counsel's conduct fell below an objective standard of reasonableness, Defendant must also establish the second prong and demonstrate that counsel's deficient performance caused prejudice.[17] That is, the defendant must show a reasonable probability that, but for his counsel's deficient failure to raise an issue, he would have prevailed on his appeal.[18]

         18. Turning to the subject action, Defendant's appellate counsel, in his Affidavit in response to Defendant's Rule 61 claims, represented that he thoroughly reviewed the record including the trial transcripts, victim statement, police reports and investigative summaries. Appellate counsel reviewed all motions filed before, during and after trial and reviewed all arguments advanced at side bar.[19]

         19. Following Appellate Counsel's thorough review of the record, counsel raised the strongest issue that he believed existed and the only issue that he believed could secure a new trial for Defendant. [20]

         20. Appellate counsel made the decision not to include any other issue on appeal because he did not want to taint the issue that he raised on direct appeal with other issues that he did not believe warranted reversal. Appellate counsel points out that while the issue that he raised on direct appeal ultimately proved to be unsuccessful, it did warrant oral argument.[21]

         21. Defendant raises three claims of ineffectiveness of appellate counsel. Each of these three ...


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