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Asbury v. State

Supreme Court of Delaware

September 25, 2019

ROBERT ASBURY, Defendant Below, Appellant,
v.
STATE OF DELAWARE, Plaintiff Below, Appellee.

          Submitted: August 14, 2019

          Court Below-Superior Court of the State of Delaware Cr. ID No. 1306006968

          Before VALIHURA, VAUGHN, and SEITZ, Justices.

          ORDER

          James T. Vaughn, Jr. Justice.

         After consideration of the brief and motion to withdraw filed by the appellant's counsel under Supreme Court Rule 26(c), the State's response, and the Superior Court record, it appears to the Court that:

         (1) In September 2013, the appellant, Robert Asbury, was indicted for Attempted Rape First Degree, Rape First Degree, and Strangulation. On April 1, 2014, following a four-day trial, a jury found Asbury guilty of Attempted Rape First Degree and Strangulation, and not guilty of Rape First Degree. The Superior Court declared Asbury a habitual offender under 11 Del. C. § 4214(a) and sentenced him to life imprisonment for the attempted rape conviction. The court sentenced him to six years' imprisonment, followed by two years of probation, for the strangulation conviction.

         (2) On direct appeal, Asbury's counsel argued that the Superior Court abused its discretion when it denied Asbury's motion for a mistrial after the victim stated, in response to a question during cross-examination concerning the timeline of their relationship, that Asbury had been in jail at a particular point in time. This Court affirmed the judgment of the Superior Court.[1]

         (3) Asbury then filed a pro se motion for postconviction relief, in which he argued that his counsel provided ineffective assistance by failing to object to the allegedly defective indictment and to request a bill of particulars. The Superior Court ordered the appointment of postconviction counsel. After reviewing the record, postconviction counsel concluded that there were no meritorious grounds for relief and moved to withdraw under Superior Court Criminal Rule 61(e)(7). Asbury submitted a response, in which he argued that his trial counsel was ineffective for (i) failing to object to the allegedly defective indictment or to request a bill of particulars; and (ii) failing to interview or call witnesses who would rebut the victim's testimony that she and the appellant were not in a romantic relationship.

         (4) After additional submissions-including an affidavit from trial counsel addressing the claim of failure to contact or subpoena witnesses and a supplemental submission by Asbury in which he claimed that his postconviction counsel was subject to a conflict of interest because Asbury's trial counsel is now a Superior Court judge-the Superior Court denied Asbury's motion for postconviction relief. Asbury has appealed to this Court.

         (5) On appeal, Asbury's counsel has filed a brief and motion to withdraw under Supreme Court Rule 26(c). Asbury's counsel asserts that, based upon a complete and careful review of the record, no arguably appealable issues exist. Counsel informed Asbury of the provisions of Rule 26(c) and provided him with a copy of the motion to withdraw and the accompanying brief and appendix.[2] Counsel also informed Asbury of his right to supplement counsel's brief by stating in writing any points he would like the Court to consider. Asbury has raised four points for the Court's consideration. The State has responded to the Rule 26(c) brief and to the issues raised by Asbury, and argues that the Superior Court's judgement should be affirmed.

         (6) Our review in this appeal is twofold: (i) the Court must be satisfied that postconviction counsel has made a conscientious examination of the record and the law for arguable claims;[3] and (ii) the Court must conduct its own review of the record and determine "whether the appeal is indeed so frivolous that it may be decided without an adversary presentation."[4]

         (7) Asbury raises four issues on appeal: (i) trial counsel provided ineffective assistance when he failed to interview or subpoena certain witnesses; (ii) trial counsel provided ineffective assistance when he failed to object to a defective indictment or request a bill of particulars; (iii) postconviction counsel faced a conflict of interest because trial counsel is now a Superior Court judge; and (iv) postconviction counsel failed to perform a conscientious review of the record.

         (8) Asbury's first two claims raise the question of ineffective assistance of trial counsel. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that (i) defense counsel's performance fell below an objective standard of reasonableness; and (ii) there is a reasonable probability that but for the deficient performance the result of the proceeding would have been different.[5] The appellant must state and substantiate concrete allegations of actual prejudice.[6] The appellant must also overcome a strong presumption that counsel's performance was professionally reasonable.[7]

         (9) Asbury's claims of ineffective assistance of counsel are without merit. Asbury first contends that trial counsel was ineffective for failing to interview or subpoena certain witnesses that Asbury identified. The affidavit submitted by trial counsel indicates that he does not recall Asbury identifying all of the individuals that Asbury now asserts should have been interviewed or called as witnesses. The affidavit further states that the defense team interviewed several of the individuals that Asbury now identifies and that, in the exercise of his professional judgment, he would not have called those individuals, or any of the other individuals that Asbury identifies, because they were not present immediately before, during, or after the incident; their testimony would have been cumulative with evidence that the defense did present; they were family members whom the jury would have perceived as biased; or their proposed testimony would have opened the door to damaging evidence relating to Asbury's character, including his extensive criminal history. In light of trial counsel's analysis, we conclude that Asbury has not shown that there is a ...


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