Submitted: March 16, 2018
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
M. Parker Commissioner.
23rd day of May 2018, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
AND PROCEDURAL HISTORY
Defendant Kenneth Fowler was charged with drug dealing and
conspiracy arising out of an incident that occurred on
December 5, 2012.
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.
Following a jury trial, on September 6, 2013, Fowler was
convicted of drug dealing and conspiracy.
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.
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. During the trial, the judge
raised the possibility of severance but neither party
expressed an interest in it. 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.
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. In the subject case, the jury could have
found one, both or neither of Fowler and Taylor
guilty. Thus, the Delaware Supreme Court concluded
that the Superior Court did not commit plain error by failing
to unilaterally sever the trial.
Fowler filed a motion for reduction/modification of sentence
which the Superior Court denied by Order dated October 24,
2016. Fowler filed a motion for reargument which
was denied by the Superior Court by Order dated December 14,
January 13, 2017, Fowler filed his first Rule 61
motion. 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.
March 7, 2017, Fowler filed another motion for modification
of sentence which was denied by Order dated March 15,
PENDING RULE 61 MOTION
September 26, 2017, Fowler, with the assistance of counsel,
filed his second Rule 61 motion. Fowler filed an amended
motion on November 14, 2017.
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.
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
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.
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
claim that Fowler raises in his second Rule 61 motion is
procedurally barred and without merit.
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.
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
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.
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
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. 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.
Mere 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 strategy.
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. 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. 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
United States Supreme Court recognized that there are
countless ways to provide effective assistance in any given
case. 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. 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. 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
is against this backdrop that Fowler's claim of
ineffective assistance of counsel is considered.
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. In this case, the jury could
have found one, both or either of Fowler and his co-defendant
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