State of Delaware v. Brown.

• Court: Superior Court of Delaware
• Decided: June 23, 2015
• Docket: 1209018367
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE ) ) v. ) Case I.D. No. 1209018367 ) BRYON L. BROWN, ) ) Defendant. )

Date Submitted: June 3, 2015 Date Decided: June 23, 2015

ORDER DENYING DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF

This 23rd day of June, 2015, upon consideration of the Motion for

Postconviction Relief (“Motion”) filed by Defendant, Bryon L. Brown; the facts

and legal authorities set forth in the Motion; and, the entire record in this case:

1. On August 6, 2013, Defendant pled guilty to Forgery in the Second Degree.1

Defendant was represented by Dade Werb, Esquire (“Plea Counsel”).

Pursuant to the plea agreement, Defendant admitted that he qualified for

habitual offender status and agreed not to oppose the State’s motion to have

him sentenced as a habitual offender.

2. On October 2, 2013, the State filed a Motion to Declare Defendant a

Habitual Offender, pursuant to 11 Del. C. § 4214(a), which the Court

granted.

1 11 Del. C. § 861. 3. Before sentencing, Kevin P. Tray, Esquire, (“Sentencing Counsel”) replaced

Plea Counsel as counsel for Defendant.

4. On August 8, 2014, the Court sentenced Defendant to three years at Level V

to be served under the provisions of the Habitual Criminal Act. 2

5. On October 24, 2014, Defendant filed a Motion for Sentence Modification,

which the Court denied on October 30, 2014. On November 19, 2014,

Defendant filed a second a Motion for Sentence Modification, which the

Court denied on December 1, 2014. On June 1, 2015, Defendant filed a

third Motion for Sentence Modification, seeking credit for time served,

which the Court granted in part on June 15, 2015.

6. On June 3, 2015, Defendant filed the pending Motion seeking relief under

Superior Court Criminal Rule 61. This is his first postconviction motion.

Defendant seeks postconviction relief on the ground of ineffective assistance

of counsel. Defendant contends that Plea Counsel failed to advise

Sentencing Counsel on the details of Defendant’s case and that Sentencing

Counsel failed to obtain and review his case file for sentencing and was bias

towards Defendant.

7. According to Rule 61(d)(5), “If it plainly appears from the motion for

postconviction relief and the record of prior proceedings in the case that the

2 11 Del. C. § 4214(a). 2 movant is not entitled to relief, the judge may enter an order for its summary

dismissal.”

8. To avoid summary dismissal, Defendant must do more than make

conclusory assertions of law or fact.3 Defendant must support his claims of

ineffective assistance of counsel with “‘concrete allegations of prejudice.’” 4

9. With respect to Sentencing Counsel: Defendant alleges that two weeks

before sentencing, Sentencing Counsel advised Defendant that Sentencing

Counsel needed to obtain Defendant’s case file before Sentencing Counsel

could decide how to proceed. Defendant argues that this alleged

conversation creates an inference that Sentencing Counsel lacked interest

and was not actively engaged in Defendant’s case. Defendant’s contentions

are conclusory and do not assert concrete allegations of prejudice.

Defendant signed a Truth-In-Sentencing Guilty Plea Form acknowledging

that the statutory penalty for the offense of Forgery in the Second Degree is

0–2 years and, because of his habitual offender status, Defendant faced a

maximum penalty of a life sentence. Indeed, Defendant was sentenced to

three years at level V.

3 State v. Watson, 2008 WL 1952160, at *2 (Del. Super. Mar. 25, 2008). Conclusory is defined as “[e]xpressing a factual inference without stating underlying facts on which the inference is based.” Black’s Law Dictionary, 308 (8th ed. 2004). 4 Watson, 2008 WL 1952160, at *2 (quoting State v. Childress, 2001 WL 1610766, at *1 (Del. Super. 2011). 3 10. In addition, Defendant’s Motion asserts that Sentencing Counsel’s alleged

“dismissive attitude” constituted ineffective assistance of counsel that

resulted in an improper plea. However, Plea Counsel, not Sentencing

Counsel, represented Defendant with respect to the plea entered on August

6, 2013.

11.With respect to Plea Counsel: Defendant answered “Yes” when asked “are

you satisfied with you lawyer’s representation of you” on the Truth-In-

Sentencing Guilty Plea Form. Defendant is bound by his answers on the

Truth-In-Sentencing Guilty Plea Form. 5 Moreover, Defendant has asserted

conclusory allegations that Plea Counsel failed to communicate the details of

Defendant’s case with Sentencing Counsel.

12. It plainly appears that Defendant’s Motion is without merit.

NOW, THEREFORE, on this 23rd day of June 2015, Bryon L. Brown’s

Motion for Postconviction Relief is hereby SUMMARILY DISMISSED.

IT IS SO ORDERED.

Andrea L. Rocanelli

____________________________________ The Honorable Andrea L. Rocanelli

5 Sommerville v. State, 703 A.2d 629, 632 (Del. 1997). 4