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State v. Fowler

Superior Court of Delaware

May 23, 2018

STATE OF DELAWARE, Plaintiff,
v.
KENNETH FOWLER, Defendant.

          Submitted: March 16, 2018

          Sonia Augusthy, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Michael W. Modica, Esquire, Wilmington, Delaware, Attorney for Defendant Kenneth Fowler.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.

          Lynne M. Parker Commissioner.

         This 23rd day of May 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. Defendant Kenneth Fowler was charged with drug dealing and conspiracy arising out of an incident that occurred on December 5, 2012.

         2. On December 5, 2012, Fowler, while driving a car, was stopped by the police because he was wanted on an unrelated outstanding warrant. Leroy Taylor was the passenger in the car that Fowler was driving. The police smelled marijuana on Leroy Taylor and noticed that inside the car there was a Ziploc bag by the center console just between the passenger's seat and the center console. Inside the Ziploc bag the police found six baggies of cocaine. The Superior Court tried Fowler with Taylor as codefendants.[1]

         3. Following a jury trial, on September 6, 2013, Fowler was convicted of drug dealing and conspiracy.

         4. Fowler filed a direct appeal to the Delaware Supreme Court. On September 29, 2016, the Delaware Supreme Court determined that Fowler's direct appeal was without merit and affirmed the judgment of the Superior Court.[2]

         5. On direct appeal Fowler claimed, among other things, that the trial court erred by not sua sponte ordering severance of Fowler's trial from his co-defendant's trial because his co-defendant's defense strategy was hostile to Fowler's own strategy.[3] During the trial, the judge raised the possibility of severance but neither party expressed an interest in it.[4] The Delaware Supreme Court held that Fowler effectively waived any right to severance by not taking the Superior Court up on what was in essence an offer to sever the trial.[5]

         6. The Delaware Supreme Court on Fowler's direct appeal further held that even if it considered the claim of plain error for the trial court's not severing of the trials of the co-defendants, the outcome would be the same. Although Fowler and codefendant Taylor had defenses that were at least partially at odds, those tensions did not rise to the level of mutually exclusive defenses that would require severance.[6] In the subject case, the jury could have found one, both or neither of Fowler and Taylor guilty.[7] Thus, the Delaware Supreme Court concluded that the Superior Court did not commit plain error by failing to unilaterally sever the trial.[8]

         7. Fowler filed a motion for reduction/modification of sentence which the Superior Court denied by Order dated October 24, 2016.[9] Fowler filed a motion for reargument which was denied by the Superior Court by Order dated December 14, 2016.[10]

         8. On January 13, 2017, Fowler filed his first Rule 61 motion.[11] In that motion, Fowler claimed ineffective assistance of trial and appellate counsel. On January 24, 2017, the Superior Court summarily dismissed Fowler's first Rule 61 motion.[12]

         9. On March 7, 2017, Fowler filed another motion for modification of sentence which was denied by Order dated March 15, 2017.[13]

         DEFENDANT'S PENDING RULE 61 MOTION

         10. On September 26, 2017, Fowler, with the assistance of counsel, filed his second Rule 61 motion.[14] Fowler filed an amended motion on November 14, 2017.[15]

         11. Fowler's Rule 61 counsel requested a hearing to confirm that Fowler was no longer pursuing any claims alleging ineffective assistance of appellate counsel in his Rule 61 motion. Rule 61 counsel had represented Fowler on direct appeal and counsel did not want to be placed in a conflict situation in his continued representation of Fowler on the pending Rule 61 motion.[16]

         12. The request was granted and the hearing held on January 18, 2018, at which time Fowler confirmed that he was not proceeding with any allegations of ineffective assistance of appellate counsel.[17]

         13. In the pending Rule 61 motion, Fowler raises one claim. Fowler claims that his trial counsel was ineffective for failing to move for severance of his trial from his codefendant's trial and/or by waiving severance when the matter was raised by the trial judge.

         14. Before making a recommendation, the record was enlarged and Fowler's trial counsel submitted an Affidavit responding to Fowler's claim, the State submitted a response to the claim, and Fowler was afforded an opportunity to submit a reply thereto.[18]

         15. The claim that Fowler raises in his second Rule 61 motion is procedurally barred and without merit.

         16. First, Fowler's claim is procedurally barred because he has failed to satisfy the pleading requirements required to be met before being permitted to proceed with a second Rule 61 motion. Fowler filed the subject Rule 61 motion in 2017, and it is the Rule 61 in effect at the time of the filing of this motion that is applicable.[19]

         17. Pursuant to the applicable Rule 61 in effect at the time of the filing of this motion, for second Rule 61 motions, like that presented in the subject action, motions are to be summarily dismissed unless the defendant establishes: 1) that new evidence exists that creates a strong inference that the defendant is actually innocent of the charges for which he was convicted, or 2) the existence of a new rule of constitutional law made retroactive to cases on collateral review rendered his convictions invalid.[20]

         18. Fowler has not pled with particularity that any new evidence exists that creates a strong inference that he is actually innocent of the charges for which he was convicted nor that there is a new rule of law that would render his conviction invalid.

         19. Fowler does not raise anything new or recently discovered. Fowler's claim stems from facts known to him at the time his trial in 2013, and he already raised the claim raised herein in some fashion on direct appeal, which was decided in 2016. On direct appeal, Fowler contended that the trial court erred when it failed to sever his trial from his co-defendant's trial. Fowler now claims that his trial counsel was ineffective for failing to request that his trial be severed from his co-defendant's trial. Fowler was aware of, had time to, and the opportunity to raise this claim in his first Rule 61 motion. As such, Fowler has failed to meet the pleading requirements allowing him to proceed with his pending Rule 61 motion. In accordance with the mandates of Rule 61, Fowler's pending motion should be dismissed.[21]

         20. Second, even if this claim was considered on its merits, Fowler would not prevail. 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.[22] 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.[23]

         21. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[24] 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.[25]Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[26]

         22. In considering post-trial attacks on counsel, Strickland cautions that trial counsel's performance should be reviewed from the defense counsel's perspective at the time decisions were being made.[27] It is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.[28] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of hindsight. Second guessing or "Monday morning quarterbacking" should be avoided.[29]

         23. The United States Supreme Court recognized that there are countless ways to provide effective assistance in any given case.[30] Even the best criminal defense attorneys would not defend a particular client in the same way. Consequently, defense counsel must be given wide latitude in making tactical decisions.[31] Counsel's representation must be judged by the most deferential of standards. There is a strong presumption that defense counsel's conduct constituted sound trial strategy.[32] Great weight and deference are given to tactical decisions by the trial attorney. There is a strong presumption that counsel's conduct was reasonable and constituted sound trial strategy.[33]

         24. It is against this backdrop that Fowler's claim of ineffective assistance of counsel is considered.

         25. The Delaware Supreme Court on Fowler's direct appeal has already held that this case was not one that rose to the level of the defendants having mutually exclusive defenses which would require severance.[34] In this case, the jury could have found one, both or either of Fowler and his co-defendant Taylor guilty.[35]

         26. Fowler's trial counsel acknowledges that he never moved to sever Fowler's trial from his co-defendant's trial, or to pursue severance further when it was raised by the trial court. Fowler's trial counsel explains that the decision not to do so was a tactical decision. In his ...


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