Submitted: April 24, 2019
Below-Superior Court of the State of Delaware Cr. ID Nos.
STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
F. Traynor Justice
consideration of the appellant's opening brief, the
State's motion to affirm, and the record on appeal, it
appears to the Court that:
appellant, Haywood Johnson, appeals from the Superior
Court's denial of his first motion for postconviction
relief. The State has filed a motion to affirm the Superior
Court's judgment on the ground that it is manifest on the
face of Johnson's opening brief that the appeal is
without merit. We agree and affirm.
record reflects that Officer MacNamara of the Wilmington
Police Department received a tip from a confidential
informant that a man of a certain description had been
selling drugs from a white conversion van in a particular
block of Windsor Street and that the informant had observed
the subject with a semi- automatic handgun that was concealed
in the van. Officer MacNamara went to the identified block of
Windsor Street and saw a man fitting the description provided
by the informant, sleeping in the back seat of a white van.
Officer MacNamara knocked on the window of the van. As the
man, who turned out to be Johnson, opened the van door, the
officer saw, in plain view, a bag containing what appeared to
be heroin and marijuana packaged for sale. Officer MacNamara
then ordered Johnson to exit the van, which Johnson did.
Johnson then attempted to flee, but was taken into custody by
other officers. Another officer, Corporal Lynch, arrived on
the scene as officers were struggling with Johnson. Corporal
Lynch looked into the open door of the van and saw a bag
containing what appeared to be bags of heroin and also saw,
in the top of the cargo pocket on the back of the front
passenger seat, a gun that was partially obscured from view
by a blue towel. Corporal Lynch prepared an affidavit of
probable cause to obtain a warrant to search the van. After
obtaining the warrant, officers searched the van and found a
semi-automatic handgun and illegal drugs packaged for sale.
grand jury indicted Johnson on four counts of Possession or
Control of a Firearm by a Person Prohibited, three counts of
Possession or Control of Ammunition for a Firearm by a Person
Prohibited, Carrying a Concealed Deadly Weapon, Aggravated
Possession (Heroin) In a Vehicle, Aggravated Possession
(Cocaine) in a Vehicle, and Resisting Arrest. Before trial,
Johnson's counsel moved to suppress all evidence seized
as a result of the search warrant, arguing that Johnson was
unlawfully seized and arrested and that the search warrant
was improper, based on Johnson's claim that certain
statements made by Corporal Lynch in the affidavit of
probable cause were inconsistent with statements made by
Officer MacNamara in his police report. On December 1, 2017,
the Superior Court held a hearing on the suppression motion,
at which Officer MacNamara and Corporal Lynch testified. The
Superior Court denied the motion to suppress, holding that
the requirement for a search warrant was excused based on the
plain view exception and the automobile exception, and that
therefore any inconsistencies between the facts stated in the
affidavit of probable cause and those stated in the police
report did not warrant suppression. The court further held
that had a warrant been required, the affidavit demonstrated
probable cause for the search even if the purportedly
inconsistent statements were not considered.
December 12, 2017, Johnson pleaded guilty to one count of
Possession of a Firearm by a Person Prohibited and one count
of Aggravated Possession (Heroin) in a Vehicle. In exchange
for the guilty plea, the State agreed to dismiss the
remaining charges, as well as not to pursue charges of
violation of probation that were outstanding at the time of
his arrest and that exposed him to up to thirty-five years of
back time on sentences for prior convictions. The Superior
Court sentenced Johnson to a total of thirty years'
incarceration, suspended after seven years for probation.
Johnson did not file a direct appeal.
July 2018, Johnson filed a motion for postconviction relief.
Johnson argued that his counsel provided ineffective
assistance because he did not sufficiently investigate the
case and because he did not make additional arguments that
Johnson wanted to make in support of the suppression motion.
Johnson also asserted that the search and seizure were
illegal and that the State violated Brady v.
Maryland by withholding evidence of misconduct by
Carl Rone, a ballistics expert who does not appear to have
had any involvement in this case. The motion for
postconviction relief was referred to a Commissioner for a
report and recommendation under Superior Court Rule 62. The
State filed a response in opposition to the motion, and trial
counsel submitted an affidavit and documentation detailing
the investigation that counsel conducted and addressing the
advice provided to Johnson regarding the suppression issues
and potential trial strategy.
December 6, 2018, the Commissioner entered a report and
recommendation in which she concluded that Johnson's
claims other than his claims of ineffective assistance of
counsel were procedurally barred because either they had not
been raised in the proceedings leading to the judgment of
conviction or because they had been formerly
adjudicated. With respect to Johnson's claims of
ineffective assistance of counsel, the Commissioner
determined that Johnson had neither overcome the presumption
that counsel's conduct was professionally reasonable, nor
shown that counsel's actions were so prejudicial that
there was a reasonable probability that, but for
counsel's errors, Johnson would not have pleaded guilty
and would have proceeded to trial. The Commissioner therefore
recommended that the court deny Johnson's motion.
Johnson did not file any objections to the Commissioner's
report. On January 7, 2019, the Superior Court
adopted the report and denied Johnson's motion for
postconviction relief. Johnson has appealed to this Court.
review the Superior Court's denial of postconviction
relief for abuse of discretion and questions of law de
novo Superior Court Rule 62(b) provides
that a "party . . . appealing the findings of fact and
recommendations of a Commissioner under subparagraph (5) who
fails to comply with the provisions of this rule may be
subject to dismissal of said . . .
appeal." Nevertheless, we have carefully considered
Johnson's claims and concluded that the Superior
Court's judgment should be affirmed.
prevail on a claim of ineffective assistance of counsel
within the context of a guilty plea, Johnson was required to
show that (i) his counsel's conduct fell below an
objective standard of reasonableness, and (ii) there is a
reasonable probability that, but for the alleged errors of
counsel, the movant would not have pleaded guilty and would
have insisted on going to trial. A defendant must make
concrete allegations of cause and actual prejudice to
substantiate a claim of ineffective assistance of