JEFFREY W. THOMAS, Defendant Below, Appellant,
STATE OF DELAWARE, Plaintiff Below, Appellee.
Submitted: November 16, 2018
Below: Superior Court of the State of Delaware Cr. ID No.
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. Traynor Justice.
appellant, Jeffrey W. Thomas, has appealed the Superior
Court's denial of his motion for postconviction relief
under Superior Court Criminal Rule 61. After careful
consideration of the parties' briefs and the record, we
affirm the Superior Court's judgment.
May 2014, Thomas and his co-defendant, Monica Heath, were
indicted on charges arising from the burglary of an apartment
in Dover. In July 2014, Heath pleaded guilty to three charges
and was sentenced.
Thomas proceeded to trial in 2015 and was convicted of
second-degree burglary, theft of a motor vehicle,
second-degree conspiracy, and misdemeanor theft. At
sentencing, Thomas was declared a habitual offender and was
sentenced to a total of twenty-two years of Level V
imprisonment suspended after twenty-one years for six months
of Level IV work release and six months of Level III
probation. On direct appeal, we affirmed Thomas'
convictions and sentence under Supreme Court Rule
direct appeal, Thomas claimed, in part, that the Superior
Court erred in failing to give an accomplice liability jury
instruction and when overruling his trial counsel's
objections to a police detective's testimony describing
self-incriminating statements made by Thomas to the detective
during a recorded interview. We considered those claims-and
others made by Thomas-and concluded that the claims were
June 2016, Thomas filed a motion and an amended motion for
postconviction relief ("Postconviction Motion") and
a motion for appointment of counsel. By order dated August 8,
2016, the Superior Court denied the motion for appointment of
counsel. The Superior Court referred the Postconviction
Motion to a Commissioner for a report and recommendation.
After considering the Postconviction Motion, affidavits filed
by Thomas' trial counsel in response to the allegations
of ineffective assistance of counsel, the State's
response to the Postconviction Motion, and Thomas' reply
to the State's response, the Commissioner issued a report
on October 11, 2017, recommending that the Postconviction
Motion should be denied. The Commissioner found that Thomas'
ineffective assistance of counsel claim was without merit
because it was based, in part, on claims that were
adjudicated on direct appeal. Also, the Commissioner found
that Thomas had not demonstrated that he was prejudiced by
any of the alleged deficiencies of his trial counsel. By
order dated January 30, 2018, upon a de novo review
of the record, the Superior Court adopted the
Commissioner's report and recommendation and denied the
his appeal from the denial of his Postconviction Motion,
Thomas contends that he had a right to the appointment of
counsel to pursue postconviction relief, and that the denial
of his motion for appointment of counsel was an abuse of
discretion. Thomas' contentions are without merit.
Rule 61(e) governs the appointment of counsel for an indigent
movant's first motion for postconviction relief. Under
the rule, the appointment of counsel is required if the
postconviction motion and the motion for appointment of
counsel are timely and properly filed and the movant seeks to
set aside "a judgment of conviction after a trial that
has been affirmed by final order upon direct appellate review
and is for a crime designated as a class A, B, or C
felony." For a lesser-designated crime, the
appointment of counsel is not required, but counsel may be
appointed if the judge determines, among other things, that
"the motion sets forth a substantial claim that the
movant received ineffective assistance of trial or appellate
counsel." A substantial claim of ineffective
assistance of counsel is one that has some possibility of
Thomas was not entitled to the appointment of counsel under
Rule 61(e) because he was not convicted of a class A, B, or C
felony. The Superior Court denied Thomas'
motion for appointment of counsel after determining that he
did not set forth a substantial claim of ineffective
assistance of counsel. On appeal, we agree with that
Thomas' ineffective assistance of counsel claim was based
on his trial counsel's failure to request an accomplice
liability jury instruction, to object to the admission of the
police detective's testimony, and to subpoena Heath to
testify at Thomas' trial. None of the ...