Submitted: March 7, 2018
Below: Superior Court of the State of Delaware I.D. No.
STRINE, Chief Justice; VALIHURA and VAUGHN, Justices.
T. Vaughn, Jr. Justice.
24th day of May 2018, upon consideration of the
parties' briefs and the record on appeal, it appears to
the Court that:
Appellant, Damon Smith ("Smith"), appeals from a
Superior Court denial for postconviction relief. He contends
that the Superior Court erred when it denied his request for
postconviction relief for ineffective assistance of counsel.
September 18, 2013, at 6:00 p.m. New Castle County Police
Department Officer Michael Zolnowski went to 172 Winder Road
in New Castle, Delaware, to investigate a report of a fight
in progress involving a firearm. While en route, he learned
that individuals involved in the fight had fled in a gold
Honda Accord. A black male wearing a white t-shirt and blue
jeans was present during the altercation and in possession of
a black revolver. Officer Zolnowski responded to another
location where an off-duty officer had stopped the gold Honda
Antonia Brown was the driver of the Honda Accord and Smith
was in the passenger seat. Smith was wearing a white t-shirt
and blue jeans. Underneath the Accord's passenger seat
was a black revolver. Smith was arrested.
Antonia Brown told the officers that she, Smith, and her
boyfriend, John Smith ("John"), who was Smith's
nephew, had gone to her mother's house at 172 Winder
Road. Angela Brown (Antonia's mother), her fiancé
Derrick Byrd, and her minor son Ty Brown were at 172 Winder
Road. Angela stated that she was in her house and saw two men
exit the vehicle, John, and a man who was later determined to
be Smith. Angela observed John pull a black revolver from his
waistband and wave it at Byrd, who was in front of the house.
Angela testified that John and Smith passed the gun back and
forth, both waving it at Byrd. Byrd retreated into the house
and Angela watched as John yelled at Byrd from outside. John
hurled insults and accused Byrd of hitting Russel Brown,
Eventually, Angela exited the house making her way along the
driveway and began to argue with her daughter Antonia.
Sometime during the argument Angela's ex-husband Anthony
Brown and his girlfriend Cache Clifton arrived on the scene.
Clifton yelled at Angela, but kept her distance from the
house. After the argument concluded, Antonia and Smith left
in the gold Honda Accord. Angela did not see where John went.
Byrd told Officer Zolnowski that John and Damon Smith had
passed the revolver back and forth, both waving the gun at
him and Angela. Byrd also said John fled on foot, and Smith
was the last to possess the handgun.
Smith was indicted on two counts of Possession of a Firearm
During the Commission of a Felony ("PFDCF"), two
counts of Aggravated Menacing, one count of Possession of a
Deadly Weapon by a Person Prohibited ("PDWBPP"),
two counts of Conspiracy Second Degree, and one count of
Carrying a Concealed Deadly Weapon. The conspiracy charges
were dismissed after a preliminary hearing.
March 12, 2014, the Superior Court issued a Scheduling Order,
scheduling case reviews for March 17, 2014 and June 30, 2014.
Trial was scheduled for July 8, 2014. At his second case
review, Smith rejected a plea offer made by the State. The
morning of Smith's trial he pled guilty to one count of
Aggravated Menacing and one count of PFDCF. As part of the
plea offer, Smith agreed to be sentenced as an habitual
offender. On October 3, 2014, the State filed a motion to
declare Smith an habitual offender.
State's motion to declare Smith an habitual offender was
granted, and the Superior Court sentenced Smith to ten years
at Level V with no probation to follow. On July 20, 2015,
Smith filed a pro se motion for
correction/modification of sentence, which was denied by the
Superior Court on August 12, 2015. On December 18, 2015,
Smith filed a motion for postconviction relief claiming
ineffective assistance of counsel. As a basis for his
ineffective assistance of counsel claim, Smith asserted that
trial counsel: (1) did not subpoena any witnesses; (2) failed
to file a motion to suppress evidence at Smith's request;
(3) failed to obtain an earlier sentence recommendation from
the earlier rejected plea offer; (4) was unaware of