SUPERIOR COURT OF THE STATE OF DELAWARE

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1 SUPERIOR COURT OF THE STATE OF DELAWARE T. HENLEY GRAVES SUSSEX COUNTY COURTHOUSE RESIDENT JUDGE 1 THE CIRCLE, SUITE 2 GEORGETOWN, DE (302) December 16, 2014 Natalie S. Woloshin, Esquire Adam D. Gelof, Esquire Woloshin, Lynch, Natalie & Gagne Department of Justice 3200 Concord Pike 114 East Market Street Wilmington, DE Georgetown, DE RE: State v. Brandon Alston ID No: and Motion for Postconviction Relief Dear Counsel: In August, 2013 the Defendant filed a Motion for Postconviction Relief. His complaints primarily centered around his sentence. He attacked the Court colloquy in regard to his habitual sentence and his counsel s performance at sentencing. Natalie Woloshin, Esquire ( Rule 61 Counsel ) was appointed to represent the Defendant and permitted an opportunity to file an amended motion. This was done and the Defendant s pro se claims were abandoned and the following grounds were raised: (a) the Trial Court erred and violated the Defendant s constitutional rights by denying a continuance request; and (b) Trial Counsel was ineffective for not investigating claims of the

2 Defendant s innocence. Later, Rule 61 Counsel requested permission to supplement the amended motion. Counsel was granted permission and on May 28, 2014 a supplemental motion was filed alleging the police in this case obtained a search warrant using deliberate or reckless false statements. Therefore, any evidence obtained should be suppressed. Finally, another Rule 61 Motion was filed in July 2014 raising the well known issues at the Medical Examiner s Office. Upon a review of all of the files as well as the pleadings, Trial Counsel s Rule 61(g) affidavit, transcripts and the presentence investigative report, the Court is satisfied an evidentiary hearing is not necessary. This is the Court s decision denying the amended motion, the supplemental motion, and the Medical Examiner s motion. History In May 2012, the Defendant was arrested for a set of drug charges and resisting arrest. The most serious charge was Dealing, Tier 2. These cases involve case number In September 2012, the Defendant was arrested on multiple counts of Possession of a Firearm During Commission of a Felony, multiple counts of Possession of a Firearm By a Person Prohibited, multiple counts of Aggravated 2

3 Menacing (with a firearm), multiple counts of Reckless Endangering in the first degree and a count of Resisting Arrest with Force. These cases involve ID # Primarily, because of the September 2012 charges the Public Defender s Office and then two conflict/contract attorneys were conflicted out of the case. Ultimately, Trial Counsel was appointed on March 14, He was given both cases. The drug cases had a Final Case Review scheduled for April 17, 2013 and a trial date of April 23, The firearm and aggravated menacing case had a Final Case Review of May 8, 2013 and a trial date of May 13, On April 11, 2013 Trial Counsel requested that the drug case trial date of April 23, 2013 be continued, but that the April 17, 2013 Final Case Review date be kept on for control. Case Scheduling denied the request due to the age of the case, but stated can be re-addressed with the Judge at Final Case Review. Ultimately at the Final Case Review date the case was continued with a new Final Case Review date of June 4, 2013 and a trial date of June 10, Also, it was requested that the drug case be put on for control for the same date as the Final Case Review on the firearm and aggravated menacing case which was in May, In May, 2013 the Defendant entered guilty pleas resolving both cases. The May 6, 2013 guilty plea transcript before Judge Richard F. Stokes evidences the 3

4 following: (a) The Defendant entered guilty pleas to Aggravated Menacing, Reckless Endangering in the first degree, Possession of a Firearm by a Person Prohibited, and Resisting Arrest with Force. He also pled guilty on the drug case to Possession with the Intent to Deliver, Tier 2 and to a misdemeanor Resisting Arrest. (b) The Defendant had been previously declared a habitual offender. 1 (c) As a result of his habitual offender status and prior record at sentencing, the Defendant knew he had to be sentenced to a minimum of 20 years and could get up to multiple life sentences plus more time. (d) The Defendant was placed under oath. Judge Stokes reminded him that he was expected to provide truthful answers. (e) The Defendant was asked separately as to each offense if he admitted committing the offense as to each, the Defendant stated Yes, Sir. (f) The Defendant informed the Court he was satisfied with his attorney, had no complaints and had enough time to go over his case with his attorney. (g) The plea was accepted and a presentence investigation was ordered. On June 14, 2013, the Defendant was sentenced by Judge Eric M. Davis to a 1 The Presentence Investigation evidences the Defendant was first sentenced as an habitual offender in 2008 and then again in 2009,

5 total of 32 years at Level 5 followed by probation. Noteworthy, in this case, is that the Defendant not only told Judge Stokes of his guilt, but in his presentence interview, he went through details as to his culpability on each case. Trial Counsel s Rule 61(g) Affidavit Learned from this affidavit is the following: (1) The initial trial continuance denial by Case Scheduling was later granted by the Presiding Judge at the April 17, 2013 Final Case Review date; (2) By April 17, 2013, Trial Counsel had studied the file he inherited and initiated communications with the Prosecutor. On April 17, he met and interviewed Mr. Alston. He subsequently met with Mr. Alston two more times before Mr. Alston decided to enter his guilty plea. (3) He knew that the gun found by the police in the firearms case was located outside the Defendant s house with the help of the Defendant s mother. (4) He discussed with the Defendant not only the report his mother made, but the statement of the person who was in the Defendant s car when the Defendant was firing the revolver. (5) Trial Counsel was aware that the victims of the drive-by shootings were not the best of witnesses for the State. He was aware of their record. He was also aware 5

6 of the motive alleged for the shooting. (6) Before entering the plea the Defendant and his attorney had discussed at length the evidence against him as well as his circumstances in regard to his record and habitual offender status. Discussion The Continuance Denial Rule 61 Counsel has not only mixed up the firearms case with the drug case, she is factually wrong as to the continuance denial. The continuance request was for the April, 2013 drug case, not the Aggravated Menacing and Firearms case. Although initially denied by Case Scheduling, it was granted by the Final Case Review Judge. The new trial date was in June, 2013, but the Defendant elected to plead guilty in a package deal with the charges set for trial in May. It is unfortunate that the Court had to spend much time to figure this out to determine the claim is meritless. Trial Counsel was ineffective for not investigating evidence that showed Mr. Alston was actually innocent, This allegation is likewise troubling. Rule 61 Counsel argues the weakness of the State s case and if Trial Counsel had done more, he would have known his client was innocent. In none of the pleadings filed by the Defendant or his Rule 61 Counsel is there ever a direct claim of actual innocence. The Defendant s pro se motion 6

7 doesn t claim innocence. His complaint was his sentence was excessive. Trial Counsel was aware of certain weaknesses in the State s case, but even looking back on the State s case in a Monday morning quarterback fashion, the case was strong. The Defendant had the opportunity to go to trial and have the State s case challenged, but the Defendant was fully aware if convicted, the number of violent offenses combined with his habitual offender status would result in a life sentence. The Court does not find a failure on the part of Trial Counsel to investigate. The Court does not find that Trial Counsel committed an objective error by failing to investigate, nor does the Court find that the Defendant suffered any prejudice 2. This was not a case where there was a no contest plea or a guilty verdict following a trial. This claim ignores the fact that while under oath, the Defendant admitted he was guilty of each offense. This claim also ignores the Defendant s admission of the details of the crimes to the Presentence Officer. The fact that the Rule 61 Counsel believes and argues that some portions of the State s case were weak belies the fact that the Defendant knew he could win some battles, but lose the war. Defendant has not established Trial Counsel was ineffective as to either required prong under Strickland. The Search Warrant Affidavit Rule 61 counsel supplemented the amended motion two months after filing the 2 Strickland v. Washington, 466 U.S. 668 (1984). 7

8 amended motion. In this matter, she alleges that knowingly false, or at least reckless representations, were made by a Seaford Police Officer in order to obtain the search warrant used to search the Defendant s home and vehicle. Bullets were found in the Defendant s belongings inside his home. The affiant in the search warrant was a police officer. The warrant was obtained shortly after the Defendant s arrest at or near his home following the firearms and aggravated menacing charges. She was not one of the initial officers on the scene. Portions of her affidavit conflict with the subsequent police reports, but these differences are not of a nature to conclude that only a more accurate affidavit could have justified the authorization of the search warrant. It is of little consequence that in the affidavit she reports the Defendant was arrested and removed from the residence when it appears they had to chase him down and arrested him outside the house. The police saw him exit his house, had reports he had participated in a drive-by-shooting and was thought to have a gun in his hand when he exited his home. This mistake doesn t taint the affidavit. Nor is it of any consequence that this affiant states the Defendant had a gun in his hand when he exited his home, when the subsequent police report states the Defendant had a dark object in his hand which was presumed to be a gun and an officer yelled Gun. 8

9 What Rule 61 Counsel ignores in this argument is that the affidavit outlines the drug case investigation, including recent multiple controlled buys from the Defendant at his residence. It references a 911 report outlining the accusation that Defendant had a gun and had fired it from his vehicle. Then it outlines the events surrounding the Defendant s capture which may not be 100% accurate. Nothing in the inaccuracies alleged leads this Judge to believe they were intentionally or recklessly made in an effort to use false information to obtain the warrant. In summary, the inaccuracies by one officer in reporting what was told her by others was inconsequential when looking at the entire affidavit especially the probable cause developed in the controlled buys of the drug case. I do not find any government misconduct. I do not find that Trial Counsel objectively failed to investigate and file a suppression motion, nor do I find any prejudice because any such motion would have failed. The Medical Examiner s Office Issues In July the defense filed another Postconviction Motion. This Motion raises the issues and problems within the Medical Examiner s Office ( M.E.O. ) involving the case in ID # The motion includes similar allegations as the contents of hundreds of filings made by the Public Defender s Office. The motion raises the alleged Brady violations as well as attacking trial counsel for being ineffective for 9

10 failure to review the chain of custody to presumably discover what no one knew until January, The Defendant s conviction in this case was a result of a guilty plea. It was a package deal resolving the drug cases and the Firearm/Aggravated Menacing case. I must repeat matters previously discussed. In May 2013 the Defendant pled guilty. He was placed under oath. He told Judge Stokes he would be truthful. He admitted to the drug offense and pled guilty. He is bound by the representation absent clear and convincing evidence to the contrary. 3 What happened in some other cases at the M.E.O. is not clear and convincing evidence to the contrary. Mr. Alston was in the drug business and admitted same. As a result of the M.E.O. investigation a full Superior Court hearing over a number of days took place. In the decision of Judge William C. Carpenter, Jr., he ruled there was evidence of pilfering by someone who was stealing drugs for his/her own use or benefit. He found no evidence that any drugs had been planted to obtain a false conviction. He found no evidence that test results of substances actually tested in the M.E.O. were mistaken or false 4. Therefore, this unfortunate collateral matter doesn t negate the Defendant s sworn admission to the Court. Nor does it negate his 3 Sommerville v. State, 703 A.2d 629, 632 (Del. 1997). 4 State vs. Irwin, I.D. No (Del. Super., Nov 17, 2014). 10

11 admissions contained in the Presentence Investigation report. Finally, the State couldn t commit a Brady violation for not disclosing what nobody knew until the January, 2014 Kent County Trial. Nor can Trial Counsel be ineffective for not having a crystal ball to predict the mischief that occurred in the M.E.O. In summary, the Defendant is bound by his admissions in his guilty plea. There is no evidence relevant to his case to contradict his admissions. He has made no claim of innocence. His attorney was not ineffective. For the reasons aforestated, the Defendant s Postconviction Motions are denied in both cases. IT IS SO ORDERED. /s/ T. Henley Graves T. Henley Graves cc: Prothonotary 11

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