IN THE SUPREME COURT OF THE STATE OF DELAWARE
HAYWOOD JOHNSON, § § Defendant Below, § No. 34, 2019 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. 1705014383A § 1705014383B Plaintiff Below, § Appellee. §
Submitted: April 24, 2019 Decided: May 28, 2019
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
ORDER
After 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, Haywood Johnson, appeals from the Superior Court’s
denial of his first 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
Johnson’s opening brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that Officer MacNamara of the Wilmington Police
Department received a tip from a confidential informant that a man of a certain
description had been selling drugs from a white conversion van in a particular block
of Windsor Street and that the informant had observed the subject with a semi- automatic handgun that was concealed in the van. Officer MacNamara went to the
identified block of Windsor Street and saw a man fitting the description provided by
the informant, sleeping in the back seat of a white van. Officer MacNamara knocked
on the window of the van. As the man, who turned out to be Johnson, opened the
van door, the officer saw, in plain view, a bag containing what appeared to be heroin
and marijuana packaged for sale. Officer MacNamara then ordered Johnson to exit
the van, which Johnson did. Johnson then attempted to flee, but was taken into
custody by other officers. Another officer, Corporal Lynch, arrived on the scene as
officers were struggling with Johnson. Corporal Lynch looked into the open door
of the van and saw a bag containing what appeared to be bags of heroin and also
saw, in the top of the cargo pocket on the back of the front passenger seat, a gun that
was partially obscured from view by a blue towel. Corporal Lynch prepared an
affidavit of probable cause to obtain a warrant to search the van. After obtaining the
warrant, officers searched the van and found a semi-automatic handgun and illegal
drugs packaged for sale.
(3) A grand jury indicted Johnson on four counts of Possession or Control
of a Firearm by a Person Prohibited, three counts of Possession or Control of
Ammunition for a Firearm by a Person Prohibited, Carrying a Concealed Deadly
Weapon, Aggravated Possession (Heroin) In a Vehicle, Aggravated Possession
(Cocaine) in a Vehicle, and Resisting Arrest. Before trial, Johnson’s counsel moved
2 to suppress all evidence seized as a result of the search warrant, arguing that Johnson
was unlawfully seized and arrested and that the search warrant was improper, based
on Johnson’s claim that certain statements made by Corporal Lynch in the affidavit
of probable cause were inconsistent with statements made by Officer MacNamara in
his police report. On December 1, 2017, the Superior Court held a hearing on the
suppression motion, at which Officer MacNamara and Corporal Lynch testified.
The Superior Court denied the motion to suppress, holding that the requirement for
a search warrant was excused based on the plain view exception and the automobile
exception, and that therefore any inconsistencies between the facts stated in the
affidavit of probable cause and those stated in the police report did not warrant
suppression. The court further held that had a warrant been required, the affidavit
demonstrated probable cause for the search even if the purportedly inconsistent
statements were not considered.
(4) On December 12, 2017, Johnson pleaded guilty to one count of
Possession of a Firearm by a Person Prohibited and one count of Aggravated
Possession (Heroin) in a Vehicle. In exchange for the guilty plea, the State agreed
to dismiss the remaining charges, as well as not to pursue charges of violation of
probation that were outstanding at the time of his arrest and that exposed him to up
to thirty-five years of back time on sentences for prior convictions. The Superior
3 Court sentenced Johnson to a total of thirty years’ incarceration, suspended after
seven years for probation. Johnson did not file a direct appeal.
(5) In July 2018, Johnson filed a motion for postconviction relief. Johnson
argued that his counsel provided ineffective assistance because he did not
sufficiently investigate the case and because he did not make additional arguments
that Johnson wanted to make in support of the suppression motion. Johnson also
asserted that the search and seizure were illegal and that the State violated Brady v.
Maryland1 by withholding evidence of misconduct by Carl Rone, a ballistics expert
who does not appear to have had any involvement in this case. The motion for
postconviction relief was referred to a Commissioner for a report and
recommendation under Superior Court Rule 62. The State filed a response in
opposition to the motion, and trial counsel submitted an affidavit and documentation
detailing the investigation that counsel conducted and addressing the advice
provided to Johnson regarding the suppression issues and potential trial strategy.
(6) On December 6, 2018, the Commissioner entered a report and
recommendation in which she concluded that Johnson’s claims other than his claims
of ineffective assistance of counsel were procedurally barred because either they had
not been raised in the proceedings leading to the judgment of conviction or because
1 373 U.S. 83 (1963).
4 they had been formerly adjudicated.2 With respect to Johnson’s claims of ineffective
assistance of counsel, the Commissioner determined that Johnson had neither
overcome the presumption that counsel’s conduct was professionally reasonable, nor
shown that counsel’s actions were so prejudicial that there was a reasonable
probability that, but for counsel’s errors, Johnson would not have pleaded guilty and
would have proceeded to trial. The Commissioner therefore recommended that the
court deny Johnson’s motion.
(7) Johnson did not file any objections to the Commissioner’s report. 3 On
January 7, 2019, the Superior Court adopted the report and denied Johnson’s motion
for postconviction relief. Johnson has appealed to this Court.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.4 Superior Court Rule 62(b)
provides that a “party . . . appealing the findings of fact and recommendations of a
Commissioner under subparagraph (5) who fails to comply with the provisions of
this rule may be subject to dismissal of said . . . appeal.”5 Nevertheless, we have
2 SUPER. CT. CRIM. R. 61(i)(3), (4). 3 See SUPER. CT. CRIM. R. 62(a)(5)(ii) (setting forth the procedure for objecting to a Commissioner’s report and recommendations). 4 Maniscalco v. State, 2017 WL 443725 (Del. Jan. 10, 2017). 5 SUPER. CT. CRIM. R. 62(b). See also Maniscalco, 2017 WL 443725, at *2 (“Having failed to object to the Commissioner’s report, Maniscalco has waived his objections to the report and cannot raise those objections in this appeal.”).
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
HAYWOOD JOHNSON, § § Defendant Below, § No. 34, 2019 Appellant, § § Court Below—Superior Court v. § of the State of Delaware § STATE OF DELAWARE, § Cr. ID Nos. 1705014383A § 1705014383B Plaintiff Below, § Appellee. §
Submitted: April 24, 2019 Decided: May 28, 2019
Before STRINE, Chief Justice; SEITZ and TRAYNOR, Justices.
ORDER
After 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, Haywood Johnson, appeals from the Superior Court’s
denial of his first 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
Johnson’s opening brief that the appeal is without merit. We agree and affirm.
(2) The record reflects that Officer MacNamara of the Wilmington Police
Department received a tip from a confidential informant that a man of a certain
description had been selling drugs from a white conversion van in a particular block
of Windsor Street and that the informant had observed the subject with a semi- automatic handgun that was concealed in the van. Officer MacNamara went to the
identified block of Windsor Street and saw a man fitting the description provided by
the informant, sleeping in the back seat of a white van. Officer MacNamara knocked
on the window of the van. As the man, who turned out to be Johnson, opened the
van door, the officer saw, in plain view, a bag containing what appeared to be heroin
and marijuana packaged for sale. Officer MacNamara then ordered Johnson to exit
the van, which Johnson did. Johnson then attempted to flee, but was taken into
custody by other officers. Another officer, Corporal Lynch, arrived on the scene as
officers were struggling with Johnson. Corporal Lynch looked into the open door
of the van and saw a bag containing what appeared to be bags of heroin and also
saw, in the top of the cargo pocket on the back of the front passenger seat, a gun that
was partially obscured from view by a blue towel. Corporal Lynch prepared an
affidavit of probable cause to obtain a warrant to search the van. After obtaining the
warrant, officers searched the van and found a semi-automatic handgun and illegal
drugs packaged for sale.
(3) A grand jury indicted Johnson on four counts of Possession or Control
of a Firearm by a Person Prohibited, three counts of Possession or Control of
Ammunition for a Firearm by a Person Prohibited, Carrying a Concealed Deadly
Weapon, Aggravated Possession (Heroin) In a Vehicle, Aggravated Possession
(Cocaine) in a Vehicle, and Resisting Arrest. Before trial, Johnson’s counsel moved
2 to suppress all evidence seized as a result of the search warrant, arguing that Johnson
was unlawfully seized and arrested and that the search warrant was improper, based
on Johnson’s claim that certain statements made by Corporal Lynch in the affidavit
of probable cause were inconsistent with statements made by Officer MacNamara in
his police report. On December 1, 2017, the Superior Court held a hearing on the
suppression motion, at which Officer MacNamara and Corporal Lynch testified.
The Superior Court denied the motion to suppress, holding that the requirement for
a search warrant was excused based on the plain view exception and the automobile
exception, and that therefore any inconsistencies between the facts stated in the
affidavit of probable cause and those stated in the police report did not warrant
suppression. The court further held that had a warrant been required, the affidavit
demonstrated probable cause for the search even if the purportedly inconsistent
statements were not considered.
(4) On December 12, 2017, Johnson pleaded guilty to one count of
Possession of a Firearm by a Person Prohibited and one count of Aggravated
Possession (Heroin) in a Vehicle. In exchange for the guilty plea, the State agreed
to dismiss the remaining charges, as well as not to pursue charges of violation of
probation that were outstanding at the time of his arrest and that exposed him to up
to thirty-five years of back time on sentences for prior convictions. The Superior
3 Court sentenced Johnson to a total of thirty years’ incarceration, suspended after
seven years for probation. Johnson did not file a direct appeal.
(5) In July 2018, Johnson filed a motion for postconviction relief. Johnson
argued that his counsel provided ineffective assistance because he did not
sufficiently investigate the case and because he did not make additional arguments
that Johnson wanted to make in support of the suppression motion. Johnson also
asserted that the search and seizure were illegal and that the State violated Brady v.
Maryland1 by withholding evidence of misconduct by Carl Rone, a ballistics expert
who does not appear to have had any involvement in this case. The motion for
postconviction relief was referred to a Commissioner for a report and
recommendation under Superior Court Rule 62. The State filed a response in
opposition to the motion, and trial counsel submitted an affidavit and documentation
detailing the investigation that counsel conducted and addressing the advice
provided to Johnson regarding the suppression issues and potential trial strategy.
(6) On December 6, 2018, the Commissioner entered a report and
recommendation in which she concluded that Johnson’s claims other than his claims
of ineffective assistance of counsel were procedurally barred because either they had
not been raised in the proceedings leading to the judgment of conviction or because
1 373 U.S. 83 (1963).
4 they had been formerly adjudicated.2 With respect to Johnson’s claims of ineffective
assistance of counsel, the Commissioner determined that Johnson had neither
overcome the presumption that counsel’s conduct was professionally reasonable, nor
shown that counsel’s actions were so prejudicial that there was a reasonable
probability that, but for counsel’s errors, Johnson would not have pleaded guilty and
would have proceeded to trial. The Commissioner therefore recommended that the
court deny Johnson’s motion.
(7) Johnson did not file any objections to the Commissioner’s report. 3 On
January 7, 2019, the Superior Court adopted the report and denied Johnson’s motion
for postconviction relief. Johnson has appealed to this Court.
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.4 Superior Court Rule 62(b)
provides that a “party . . . appealing the findings of fact and recommendations of a
Commissioner under subparagraph (5) who fails to comply with the provisions of
this rule may be subject to dismissal of said . . . appeal.”5 Nevertheless, we have
2 SUPER. CT. CRIM. R. 61(i)(3), (4). 3 See SUPER. CT. CRIM. R. 62(a)(5)(ii) (setting forth the procedure for objecting to a Commissioner’s report and recommendations). 4 Maniscalco v. State, 2017 WL 443725 (Del. Jan. 10, 2017). 5 SUPER. CT. CRIM. R. 62(b). See also Maniscalco, 2017 WL 443725, at *2 (“Having failed to object to the Commissioner’s report, Maniscalco has waived his objections to the report and cannot raise those objections in this appeal.”).
5 carefully considered Johnson’s claims and concluded that the Superior Court’s
judgment should be affirmed.
(9) To prevail on a claim of ineffective assistance of counsel within the
context of a guilty plea, Johnson was required to show that (i) his counsel’s conduct
fell below an objective standard of reasonableness, and (ii) there is a reasonable
probability that, but for the alleged errors of counsel, the movant would not have
pleaded guilty and would have insisted on going to trial. 6 A defendant must make
concrete allegations of cause and actual prejudice to substantiate a claim of
ineffective assistance of counsel. 7 Although not insurmountable, there is a strong
presumption that counsel’s representation was professionally reasonable. 8
(10) In this case, Johnson’s claims of ineffective assistance of counsel are
not supported by the record. Johnson’s counsel moved for suppression and
conducted a thorough cross-examination of the testifying police officers concerning
the alleged inconsistencies in their statements. The Superior Court denied the
motion to suppress, after which Johnson decided to plead guilty. Johnson merely
seeks to repackage his suppression claims as claims of ineffective assistance of
6 Duffy v. State, 2019 WL 459982 (Del. Feb. 5, 2019). 7 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 8 Albury v. State, 551 A.2d 53, 59 (Del. 1988).
6 counsel;9 he has not shown that counsel’s representation was professionally
unreasonable, nor has he identified any grounds for a suppression motion that likely
would have resulted in a different outcome.10 The record also reflects that counsel
investigated Johnson’s case, including by attempting to obtain any video footage of
the arrest and by contacting potential witnesses identified by Johnson, who were
either uncooperative or whose accounts were unhelpful to Johnson.
(11) Finally, by pleading guilty, Johnson reduced his potential period of
incarceration by many decades. Under these circumstances, Johnson cannot
demonstrate a reasonable probability that the outcome of his case would have been
better for him if he had gone to trial rather than enter into a plea agreement.11 We
therefore conclude that Johnson’s claims of ineffective assistance of counsel are
without merit.
(12) To the extent that Johnson contends that his other claims of error
warrant reversal separate from his assertion of ineffective assistance of counsel,
those claims are procedurally barred, as determined by the Commissioner, and were
waived by his guilty plea. Johnson could have raised the claims at trial if he had
9 Chattin v. State, 2012 WL 5844886, at *1 (Del. Nov. 16, 2012) (“Chattin’s ineffective assistance claim is more properly viewed as a claim of insufficient evidence, which . . . is procedurally barred as previously adjudicated.”). 10 See Robinson v. State, 2006 WL 1041795 (Del. Apr. 18, 2006) (affirming denial of motion for postconviction relief because counsel was not ineffective for failing to file a suppression motion that would have been denied, and therefore “counsel committed no error that could have undermined [defendant’s] decision to plead guilty”). 11 Jobes v. State, 2019 WL 949374 (Del. Feb. 25, 2019).
7 gone to trial, but he did not. Instead, he chose to enter into the plea agreement. A
knowing, intelligent, and voluntary guilty plea waives a defendant’s right to
challenge any errors occurring before the entry of the plea. 12
(13) During Johnson’s plea colloquy, he indicated that he understood that he
was waiving certain trial rights by pleading guilty, including his right to require the
State to prove each element of the charges against him beyond a reasonable doubt.
He also indicated that no one had coerced him into entering the plea, and he
expressed satisfaction with his counsel’s representation. Absent clear and
convincing evidence to the contrary, Johnson is bound by his sworn representations
during the guilty plea colloquy. 13
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/ Gary F. Traynor Justice
12 Smith v. State, 2004 WL 120530 (Del. Jan. 15, 2004). 13 Palmer v. State, 2002 WL 31546531 (Del. Nov. 13, 2002).