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State v. Weber

Superior Court of Delaware

July 29, 2019

PAUL WEBER, Defendant.

          Submitted: July 1, 2019

          Andrew J. Vella, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Paul Weber, pro se, James T. Vaughn Correctional Center, Smyrna, Delaware.


          Katharine L. Mayer Commissioner

         This 29th day of July, 2019, upon consideration of Defendant's (Second) Motion for Postconviction Relief, and related pleadings, and the record in this matter, the following is my Report and Recommendation:


         Paul E. Weber ("Defendant") was charged with Attempted Carjacking First Degree and Attempted Robbery First Degree for an incident that occurred on August 18, 2004. It was alleged that Defendant approached Frederick Naspo at a gas station, and attempted to wrestle away Naspo's car keys to steal his car.[1] In March of 2005, following a jury trial, Defendant was convicted of both charges.

         On appeal, the Delaware Supreme Court affirmed the conviction for Attempted Carjacking First Degree but reversed the conviction of Attempted Robbery First Degree, and remanded the matter for a new trial to allow an instruction on the lesser included offense of Offensive Touching. In April of 2010, a jury once again convicted Defendant of Attempted Robbery First Degree.

         Defendant's conviction was subsequently affirmed by the Delaware Supreme Court.[2] In doing so, the Delaware Supreme Court rejected Defendant's argument that the State failed to prove attempt, and that Defendant was entitled to an instruction for the defense of renunciation.[3]

         On August 22, 2017, the undersigned issued a Report and Recommendation (the "Report") that Defendant's first Motion for Postconviction Relief (the "First Motion") should be denied.[4] One of the issues presented by way of the First Motion was an argument that trial counsel was ineffective for not pursuing a renunciation defense and instruction. The Report found this argument had no merit because the evidence sufficiently demonstrated that Defendant had engaged in a substantial step planned to culminate in the commission of the crime but the victim resisted.[5] Since the charges at issue were Attempted First Degree Robbery and Attempted First Degree Carjacking, the jury could find that the offenses were completed before Defendant made efforts to voluntarily renounce his acts.[6] Therefore, trial counsel was not ineffective for focusing on other defenses.

         Despite the Defendant's copious challenges to his conviction and sentence, and the decisions authored by the State and Federal courts, affirming his conviction and denying relief, Defendant remains undaunted and has once again moved for postconviction relief.[7] Defendant now presents his (Second) Motion for Postconviction Relief, Memorandum of Law, and Supplemental Motion for Postconviction Relief.[8] Defendant argues the United States Supreme Court recently established a new rule of constitutional law, that when applied retroactively to his case, renders his conviction invalid. Put simply, Defendant's singular basis for relief is that his constitutional rights were violated by trial counsel's failure to abide by his decision to present a renunciation defense.


         The Court must first determine whether there are any procedural bars to the motion before considering the merits of the claims.[9] Defendant's conviction became final for purposes of Superior Court Criminal Rule 61 on October 1, 2012.[10]Defendant's Second Motion, having been filed on April 16, 2019, is untimely. [11]

         The remaining procedural bars are applicable as well. The First Motion is deemed to have set forth all grounds for relief available to the movant, and Defendant's Second Motion is barred unless the motion satisfies certain pleading requirements.[12] Defendant did not argue the unconstitutionality of trial counsel's failure to present a renunciation defense during the original trial proceedings, and therefore, this claim was waived.[13] And, because Defendant did later raise the issue, in other ways, on appeal and through the First Motion, although re-couching it differently here, it is barred as formerly adjudicated.[14]

         "If it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified."[15]Defendant's Second Motion is procedurally barred and therefore, it is hereby recommended that the Court summarily dismiss the Second Motion.

         Defendant, relying on Superior Court Criminal Rule 61 (d)(2)(h), [16] attempts to evade the procedural bars by arguing McCoy v. Louisiana, 138 S.Ct. 1500 (2018) (hereinafter "McCoy''), created a new rule of constitutional law rendering his conviction presumptively invalid.[17] According to Defendant's interpretation, he need not make a showing that there is a likelihood that he would have prevailed on a renunciation defense, but rather, his constitutional rights were violated because trial counsel disobeyed his direction to assert the defense.

         The United States Supreme Court elected to consider the issues presented by Robert McCoy because there was a division of opinion among state courts of last resort.[18] One of the opinions considered was the Delaware Supreme Court's decision in Cooke v. State, 977 A.2d 803, 842-846 (Del. 2009) (hereinafter "Cooke"). The holding in McCoy was consistent with the Delaware Supreme Court's decision in Cooke. Specifically, McCoy held:

The Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty.[19]

Cooke likewise held that trial counsel's pursuit of a guilty but mentally ill verdict, over his client's desire to present an innocence defense, violated the defendant's "constitutional right to make the fundamental decisions regarding his case."[20] The conclusion reached in both decisions is that a lawyer may not concede a client's guilt if a client expressly asserts that his objective is to maintain his innocence.[21]

         Defendant has two hurdles he must clear before his Second Motion may be considered on the merits. First, he must base his relief on a new rule of constitutional law that is retroactively applied. Second, he must demonstrate this law is applicable to his case. Defendant has not succeeded.

         Delaware has adopted a general rule of non-retroactivity for cases on collateral review, with two exceptions:[22]

first, "a new rule should be applied retroactively if it places 'certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe;'" second, "a rule may apply retroactively if it 'requires the observance of those procedures that ...

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