IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSHUA D. BENSON, § § Defendant Below, § No. 517, 2019 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1611007969 (K) Plaintiff Below, § Appellee. § §
Submitted: July 7, 2020 Decided: October 6, 2020
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices. ORDER
After careful consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Joshua Benson, appeals from the Superior Court’s order
denying his 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
Benson’s opening brief that his appeal is without merit. We agree and affirm.
(2) In February 2017, Benson was indicted for possession of a firearm by
a person prohibited (“PFBPP”), possession of ammunition by a person prohibited,
carrying a concealed deadly weapon (“CCDW”), resisting arrest, and failing to ride to the right of the roadway while operating a bicycle on a public roadway. On May
1, 2017, Benson filed a motion to disqualify his court-appointed attorney. The
Superior Court denied the motion and declined to appoint substitute counsel.
Instead, after conducting a colloquy with Benson, the Superior Court permitted
Benson to proceed pro se and ordered his court-appointed attorney to assist as stand-
by counsel.
(3) On May 22, 2017, Benson filed a pro se motion to suppress arguing
that his arrest was not supported by probable cause. On June 26, 2017, the Superior
Court held a suppression hearing at which the State introduced, among other
evidence, the arresting officers’ patrol vehicle’s mobile video recording (“MVR”).
The MVR showed Benson riding his bicycle on the left side of a roadway in a paved
lane marked with a pedestrian symbol. After the police activated their emergency
lights in an effort to initiate a traffic stop, Benson attempted to elude the officers.
On July 28, 2017, the Superior Court denied the motion to suppress. The Superior
Court held that the police officers had probable cause to believe that Benson was
riding his bicycle in a safety zone in violation of 21 Del. C. § 4199 and, therefore,
were justified in initiating a traffic stop. When Benson fled, the officers acquired
additional probable cause to pursue and arrest Benson for resisting arrest. Therefore,
the Superior Court found that the officers were authorized to perform a search
2 incident to arrest, during which they found a loaded handgun in Benson’s jacket
pocket.
(4) On July 31, 2017, the parties appeared for trial and selected a jury. On
August 1, 2017, Benson opted to plead guilty to PFBPP and resisting arrest instead
of proceeding to trial. As part of the plea agreement, the parties agreed that Benson
was a habitual offender and would be sentenced under 11 Del. C. § 4214(d) due to
his prior convictions for second degree assault, first degree reckless endangering,
and CCDW. The Superior Court accepted Benson’s guilty plea as knowingly,
intelligently, and voluntarily entered and—following the parties’ sentencing
recommendation—sentenced him to fifteen years of Level V incarceration for
PFBPP and to one year of Level V incarceration, suspended for one year of Level
III probation, for resisting arrest. Benson did not appeal.
(5) On October 4, 2017, Benson filed a motion for correction of illegal
sentence arguing that he had been improperly sentenced as a habitual offender under
11 Del. C. § 4214(d) because CCDW is not a violent felony under 11 Del. C. §
4201(c). The Superior Court denied the motion, and this Court affirmed on appeal,
noting that each of Benson’s three prior convictions relied upon by the State to
establish Benson’s habitual offender status is designated as a violent felony under
11 Del. C. § 4201(c).1
1 Benson v. State, 2018 WL 6431748, at *2 (Del. Dec. 5, 2018). 3 (6) In February 2018, Benson filed a timely motion for postconviction
relief under Superior Court Criminal Rule 61 (“Rule 61”). Benson argued that trial
counsel was ineffective because she failed to conduct a full investigation into the
facts of his case, failed to show him the MVR, failed to file a suppression motion as
he requested, induced Benson to enter into a plea agreement under false pretenses
because his conviction for CCDW was not a violent felony, and induced Benson into
accepting a plea offer that prejudiced his right to appeal the Superior Court’s denial
of his suppression motion. Benson later supplemented his motion with claims that
(i) the State failed to disclose the MVR to him in violation of Brady v. Maryland2
and (ii) the Superior Court denied him his constitutional right to effective
representation of counsel by declining to appoint substitute counsel, denying his
motion to suppress, and denying his motion for a continuance made on the record
during jury selection.
(7) A Superior Court Commissioner recommended that the Superior Court
deny Benson’s postconviction motion.3 The Commissioner concluded that Benson
was unable to overcome Rule 61’s procedural bars: his claims concerning his status
as a habitual offender were procedurally barred as previously adjudicated under Rule
61(i)(4), and his remaining claims were barred under Rule 61(i)(3) because they
2 373 U.S. 83 (1963). 3 State v. Benson, 2019 WL 4723832 (Del. Super. Ct. Sept. 25, 2019). 4 were not raised in the proceedings leading to judgment of conviction and Benson
could not excuse the procedural default. Following a de novo review of the
Commissioner’s report and recommendation, the Superior Court accepted the
Commissioner’s report in its entirety and denied Benson’s motion for postconviction
relief. This appeal followed.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.4 Both the
Superior Court and this Court on appeal must first consider the procedural bars of
Rule 61 before considering the merits of any of the underlying postconviction
claims.5 Rule 61(i)(3) provides that any ground for relief that was not asserted in
the proceedings leading to the judgment of conviction is thereafter barred unless the
defendant can establish cause for relief from the procedural default and prejudice
from a violation of the defendant’s rights. To establish cause, the movant must
demonstrate that an external impediment prevented him from raising the claim
earlier.6 To establish prejudice, the movant must show actual prejudice resulting
from the alleged error.7 Rule 61(i)(4) bars any ground for relief that was previously
adjudicated.
4 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 5 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 6 Id. at 556. 7 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 5 (9) On appeal, Benson argues that the Superior Court erred when it (i)
determined that his claims were procedurally barred; (ii) denied his motion for
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
JOSHUA D. BENSON, § § Defendant Below, § No. 517, 2019 Appellant, § § v. § Court Below–Superior Court § of the State of Delaware STATE OF DELAWARE, § § Cr. ID No. 1611007969 (K) Plaintiff Below, § Appellee. § §
Submitted: July 7, 2020 Decided: October 6, 2020
Before SEITZ, Chief Justice; TRAYNOR and MONTGOMERY-REEVES, Justices. ORDER
After careful consideration of the appellant’s opening brief, the State’s motion
to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Joshua Benson, appeals from the Superior Court’s order
denying his 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
Benson’s opening brief that his appeal is without merit. We agree and affirm.
(2) In February 2017, Benson was indicted for possession of a firearm by
a person prohibited (“PFBPP”), possession of ammunition by a person prohibited,
carrying a concealed deadly weapon (“CCDW”), resisting arrest, and failing to ride to the right of the roadway while operating a bicycle on a public roadway. On May
1, 2017, Benson filed a motion to disqualify his court-appointed attorney. The
Superior Court denied the motion and declined to appoint substitute counsel.
Instead, after conducting a colloquy with Benson, the Superior Court permitted
Benson to proceed pro se and ordered his court-appointed attorney to assist as stand-
by counsel.
(3) On May 22, 2017, Benson filed a pro se motion to suppress arguing
that his arrest was not supported by probable cause. On June 26, 2017, the Superior
Court held a suppression hearing at which the State introduced, among other
evidence, the arresting officers’ patrol vehicle’s mobile video recording (“MVR”).
The MVR showed Benson riding his bicycle on the left side of a roadway in a paved
lane marked with a pedestrian symbol. After the police activated their emergency
lights in an effort to initiate a traffic stop, Benson attempted to elude the officers.
On July 28, 2017, the Superior Court denied the motion to suppress. The Superior
Court held that the police officers had probable cause to believe that Benson was
riding his bicycle in a safety zone in violation of 21 Del. C. § 4199 and, therefore,
were justified in initiating a traffic stop. When Benson fled, the officers acquired
additional probable cause to pursue and arrest Benson for resisting arrest. Therefore,
the Superior Court found that the officers were authorized to perform a search
2 incident to arrest, during which they found a loaded handgun in Benson’s jacket
pocket.
(4) On July 31, 2017, the parties appeared for trial and selected a jury. On
August 1, 2017, Benson opted to plead guilty to PFBPP and resisting arrest instead
of proceeding to trial. As part of the plea agreement, the parties agreed that Benson
was a habitual offender and would be sentenced under 11 Del. C. § 4214(d) due to
his prior convictions for second degree assault, first degree reckless endangering,
and CCDW. The Superior Court accepted Benson’s guilty plea as knowingly,
intelligently, and voluntarily entered and—following the parties’ sentencing
recommendation—sentenced him to fifteen years of Level V incarceration for
PFBPP and to one year of Level V incarceration, suspended for one year of Level
III probation, for resisting arrest. Benson did not appeal.
(5) On October 4, 2017, Benson filed a motion for correction of illegal
sentence arguing that he had been improperly sentenced as a habitual offender under
11 Del. C. § 4214(d) because CCDW is not a violent felony under 11 Del. C. §
4201(c). The Superior Court denied the motion, and this Court affirmed on appeal,
noting that each of Benson’s three prior convictions relied upon by the State to
establish Benson’s habitual offender status is designated as a violent felony under
11 Del. C. § 4201(c).1
1 Benson v. State, 2018 WL 6431748, at *2 (Del. Dec. 5, 2018). 3 (6) In February 2018, Benson filed a timely motion for postconviction
relief under Superior Court Criminal Rule 61 (“Rule 61”). Benson argued that trial
counsel was ineffective because she failed to conduct a full investigation into the
facts of his case, failed to show him the MVR, failed to file a suppression motion as
he requested, induced Benson to enter into a plea agreement under false pretenses
because his conviction for CCDW was not a violent felony, and induced Benson into
accepting a plea offer that prejudiced his right to appeal the Superior Court’s denial
of his suppression motion. Benson later supplemented his motion with claims that
(i) the State failed to disclose the MVR to him in violation of Brady v. Maryland2
and (ii) the Superior Court denied him his constitutional right to effective
representation of counsel by declining to appoint substitute counsel, denying his
motion to suppress, and denying his motion for a continuance made on the record
during jury selection.
(7) A Superior Court Commissioner recommended that the Superior Court
deny Benson’s postconviction motion.3 The Commissioner concluded that Benson
was unable to overcome Rule 61’s procedural bars: his claims concerning his status
as a habitual offender were procedurally barred as previously adjudicated under Rule
61(i)(4), and his remaining claims were barred under Rule 61(i)(3) because they
2 373 U.S. 83 (1963). 3 State v. Benson, 2019 WL 4723832 (Del. Super. Ct. Sept. 25, 2019). 4 were not raised in the proceedings leading to judgment of conviction and Benson
could not excuse the procedural default. Following a de novo review of the
Commissioner’s report and recommendation, the Superior Court accepted the
Commissioner’s report in its entirety and denied Benson’s motion for postconviction
relief. This appeal followed.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion, although we review questions of law de novo.4 Both the
Superior Court and this Court on appeal must first consider the procedural bars of
Rule 61 before considering the merits of any of the underlying postconviction
claims.5 Rule 61(i)(3) provides that any ground for relief that was not asserted in
the proceedings leading to the judgment of conviction is thereafter barred unless the
defendant can establish cause for relief from the procedural default and prejudice
from a violation of the defendant’s rights. To establish cause, the movant must
demonstrate that an external impediment prevented him from raising the claim
earlier.6 To establish prejudice, the movant must show actual prejudice resulting
from the alleged error.7 Rule 61(i)(4) bars any ground for relief that was previously
adjudicated.
4 Claudio v. State, 958 A.2d 846, 850 (Del. 2008). 5 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 6 Id. at 556. 7 Albury v. State, 551 A.2d 53, 59 (Del. 1988). 5 (9) On appeal, Benson argues that the Superior Court erred when it (i)
determined that his claims were procedurally barred; (ii) denied his motion for
transcripts to be prepared at State expense in connection with the postconviction
proceedings; and (iii) denied his request for an evidentiary hearing under Rule
61(h)(1). Benson’s claims are unavailing.
(10) As a preliminary matter, Benson correctly states that his ineffective
assistance of counsel claims were not subject to Rule 61(i)(3)’s procedural bar.8
Nevertheless, we agree with the Superior Court that Benson’s allegations do not
support a finding of ineffective assistance of counsel. Even assuming that Benson
can assert a claim of ineffective assistance of counsel after waiving his right to
counsel and proceeding pro se, the record does not support such a claim. To
substantiate a claim of ineffective assistance of counsel in the guilty plea context, a
defendant must show that: (i) his counsel’s conduct fell below an objective standard
of reasonableness; and (ii) there was a reasonable probability that, but for counsel’s
errors, he would not have pled guilty but would have insisted on going to trial.9
8 Green v. State, 2020 WL 4745392, at *9 (Del. Aug. 17, 2020) (“Simply put, ineffective- assistance claims are not subject to Rule 61(i)(3)’s bar because they cannot be asserted in the proceedings leading to the judgment of conviction under the Superior Court's rules and this Court's precedent.”). 9 Albury, 551 A.2d at 59-60. 6 Although not insurmountable, there is a strong presumption that counsel’s
representation was professionally reasonable.10
(11) Having carefully considered the parties’ submissions on appeal and the
Superior Court record—including the affidavit filed by Benson’s former counsel in
response to the allegations of ineffectiveness and counsel’s letter to Benson in which
she described Benson’s actions as shown on the MVR and opined that there was no
legal basis to file a motion to suppress—we conclude that the Superior Court did not
err in finding that Benson’s claims of ineffective assistance of counsel were without
merit. To the extent that Benson’s claims of ineffective assistance of counsel relate
to his status as a habitual offender, the Superior Court correctly determined that those
claims were procedurally barred as previously adjudicated.
(12) Turning to Benson’s claim that the State committed a Brady violation
by failing to disclose the MVR to him, it is settled law that a knowing and voluntary
guilty plea waives a defendant’s right to challenge any errors occurring before the
entry of the plea, even those of constitutional dimensions.11 In this case, the
transcript of the guilty plea colloquy supports the conclusion that Benson knowingly,
intelligently, and voluntarily pled guilty with a full understanding of the rights he
was waiving. A defendant’s statements to the Superior Court during
10 Id. at 59. 11 Mack v. State, 2019 WL 7342514, at *2 (Del. Dec. 30, 2019). 7 the guilty plea colloquy are presumed to be truthful.12 Under oath, Benson informed
the trial judge that he understood the charges against him and that he was pleading
guilty because he was, in fact, guilty. He indicated that he had reviewed the plea
agreement and that he understood it as well as all of the rights that he was waiving
by pleading guilty. Benson also told the trial court that no one was forcing him to
plead guilty. Benson’s knowing, intelligent, and voluntary plea waived his right to
raise all errors or defects occurring before the plea, except a lack of subject matter
jurisdiction, including any alleged Brady violation.13 Nevertheless, the record does
not support Benson’s Brady violation claim. Assuming, arguendo, that the MVR
was exculpatory, there is no evidence that the State suppressed the MVR where, as
here, it produced the MVR to defense counsel in due course and it permitted Benson
to view the MVR in advance of the suppression hearing, which took place more than
a month before Benson’s trial date.
(13) We also hold that the Superior Court correctly concluded that Benson’s
claims that the trial court erred in failing to appoint substitute counsel, denying his
motion to suppress, and denying his motion for a continuance were not raised on
direct appeal and are therefore procedurally barred under Rule 61(i)(3).14 As a final
12 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 13 Mack, 2019 WL 7342514, at *2. 14 See Scarborough v. State, 2015 WL 4606519, at *3 (Del. July 30, 2015) (noting that if a defendant believes the Superior Court has erred in denying his suppression motion, his only option is to go to trial and appeal); Jackson v. State, 2005 WL 528673, at *2 (Del. 8 matter, the Superior Court did not abuse its discretion when it declined to order
transcripts at State expense, or when it determined that it need not hold an
evidentiary hearing on Benson’s motion for postconviction relief. As we previously
observed, Benson was provided the transcript of his guilty plea in connection with
his appeal from the Superior Court’s denial of his motion for correction of illegal
sentence.15 And, because Benson’s claims that the Superior Court erred in denying
his motion to suppress as well as his last-minute motion for a continuance are
procedurally barred, the Superior Court did not abuse its discretion in denying his
motion for the production of the transcripts of the suppression hearing and jury voir
dire at State expense.16 To the extent Benson argues that a hearing was required to
evaluate the merits of his claim of a Brady violation, as noted above, it is clear from
the record that no Brady violation occurred.
NOW, THEREFORE, IT IS ORDERED that the motion to affirm is
GRANTED and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Tamika R. Montgomery-Reeves Justice
Feb. 17, 2005) (upholding the Superior Court’s denial of the defendant’s postconviction claim that the trial court erred in denying his motion for a continuance as procedurally barred under Rule 61(i)(3)). 15 Benson, 2018 WL 6431748, at *1. 16 See Hubbard v. State, 2006 WL 197128 (Del. Jan. 24, 2006). 9