Submitted: June 7, 2019
Natalie S. Woloshin, Esquire, Woloshin, Lynch &
Associates, P.A., Attorney for Defendant.
L. Ewart, Esquire, Department of Justice, Attorney for the
were to use a baseball analogy, a Rule 61 petition is the
bottom of the ninth, the home team down by three runs, no one
on base, two outs and two strikes on the hitter. The
Defendant already has been charged, tried, convicted and on
direct appeal his convictions affirmed.
Court Criminal Rule 61 ("Rule 61") petitions face
significant procedural, including timing,
hurdles. Here, however, the Defendant and the State
are in accord that no procedural issues bar review of the
substance of Defendant's claims.
Delaware Supreme Court in Albury v.
State adopted the standard for analyzing Rule 61
claims of ineffective assistance of counsel required in
Strickland v. Washington. Strickland mandated a
showing that "...counsel's representation fell below
an objective standard of reasonableness...", and
"... that there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the
proceeding would have been different."
When an appellate court examines the representation of
counsel pursuant to the first prong of the
Strickland test, that review is subject to a strong
presumption that counsel's conduct was professionally
reasonable. That presumption is designed to eliminate the
distorting effects of hindsight.
opinion defense counsel's work met the
Strickland standard. In addition I also am of the
opinion that the claimed deficient conduct, if altered as
described by defendant, would not have produced a different
result. The evidence presented at trial, including the
recorded conversations between Defendant and his inamorata
while Defendant was incarcerated, was of sufficient strength
that even if one assumed trial counsel erred, the result
would have been the same. I deny Defendant's Motion for
motion raises one issue making a full recitation of facts
unnecessary. I will try to keep it short. Defendant was
arrested in March of 2015 following an altercation with Kim
Shelton. Allegations included that Defendant threatened
Shelton and her teenage son, W.P., with a gun, pistol-whipped
Shelton, and dragged Shelton from her front to her back yard.
W.P. ran to a neighbor asking that she call emergency
services for help. The Defendant fled the area, but was
eventually captured by police authorities. Police found a
loaded gun in Shelton's back yard. Defendant was charged
with 13 offenses including two counts of aggravated menacing,
two counts of possession of a firearm during the commission
of a felony, possession of both a firearm and ammunition by a
person prohibited, assault 3rd, two counts of
terroristic threatening, and four counts of endangering the
welfare of a child.
Shelton recanted her statements to police, including claiming
she "planted" the gun by her back porch because she
knew Defendant was prohibited from possessing weapons and
ammunition, and she was trying to "...get him in
authorities discovered Defendant telephoned Shelton while he
was in prison, in violation of his "no contact"
order. The conversations were recorded by the
prison's telephone recording system, and are quite
graphic. As part of the Rule 61 process I held oral argument
as to Defendant's claim and, at the invitation of
counsel, listened to the taped phone calls. They show a
scheme between Defendant and Shelton to "revise"
her earlier statements to police.
told a version of events at Defendant's trial
substantially different from what she told police the day
they occurred. To counter the change the prosecution sought
and was granted permission to have the two main investigating
police officers testify as to what Shelton told them pursuant
to the requirements of 11 Del. C. §3507. The
officers who testified were Corporal Haddock and Corporal
Kansak of the Laurel Police Department. ...