State v. Abrajan-Cobaxin

• Court: Superior Court of Delaware
• Decided: February 13, 2023
• Docket: 2001016205
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID No. 2001016205 : v. : : JUAN C. ABRAJAN-COBAXIN, : : Defendant. :

Submitted: December 1, 2022 Decided: February 13, 2023

ORDER

On this 13th day of February 2023, upon consideration of Defendant Juan C. Abrajan-Cobaxin’s motion for postconviction relief, the Commissioner’s Report and Recommendation, and the record in this case, it appears that: 1. Mr. Abrajan-Cobaxin pled guilty on January 14, 2021, to one count of Rape in the Second Degree, 11 Del. C. § 772. In his plea agreement with the State, he accepted the State’s recommendation that the Court impose a sentence of twenty-five years incarceration suspended after ten years, to be followed by probation. The Court sentenced him consistently with that sentencing recommendation. 2. Mr. Abrajan-Cobaxin then filed a pro se motion for postconviction relief pursuant to Superior Court Criminal Rule 61, and a motion seeking appointment of postconviction counsel. The Court denied his motion for appointment of counsel. 3. The Court then referred the matter to a Superior Court commissioner for findings of fact and recommendations pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62. She issued her findings and recommendations in the Report attached and incorporated as Exhibit A. In her Report, she explained why Mr. Abrajan-Cobaxin failed to demonstrate that his counsel performed ineffectively before or during his guilty plea and sentencing. To the contrary, she recognized that his trial counsel acted appropriately in all respects. As a result, she recommended that the Court deny Mr. Abrajan-Cobaxin’s motion for postconviction relief. 4. After she issued her Report, neither party filed written objections as permitted by Superior Court Criminal Rule 62(a)(5)(ii). Accordingly, her report and its recommendations are accepted as final. NOW, THEREFORE, after a de novo review of the record in this matter, and for the reasons stated in the Commissioner’s Report and Recommendation dated November 4, 2022: IT IS HEREBY ORDERED that the Court adopts the Commissioner’s Report and Recommendation attached as Exhibit A in its entirety. Mr. Abrajan- Cobaxin’s motion for postconviction relief filed pursuant to Superior Court Criminal Rule 61 is DENIED.

/s/Jeffrey J Clark Resident Judge

JJC/klc

oc: Prothonotary cc: The Honorable Andrea M. Freud Stephen R Welch, Jr., DAG Juan Abrajan-Cobaxin, Pro Se Trial Counsel Exhibit A IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : I.D. No. 2001016205 : In and For Kent County v. : : : JUAN C. ABRAJAN-COBAXIN, : RK-20-020001-01 RAPE 2ND WITHOUT SBI # 00638204 : CONSENT (F) : Defendant.

COMMISSIONER’S REPORT AND RECOMMENDATION

Upon Defendant’s Motion For Postconviction Relief Pursuant To Superior Court Criminal Rule 61

Alicia Porter, Esq., Department of Justice for State of Delaware

Juan C. Abrajan-Cobaxin, pro se

FREUD, Commissioner November 04, 2022

The defendant, Juan C. Abrajan-Cobaxin (“Abrajan-Cobaxin”) pled guilty

on January 14, 2021, to one count of Rape in the Second Degree without Consent,

11 Del.C. § 0772. He was also charged with one count of Sexual Abuse of a Child

by a Person of Trust, First Degree and one count of Continuous Sexual Abuse of a

Child. As part of the plea deal, the State agreed to enter Nolle Prosequis on the

remaining charges and along with the defense recommended a sentence of twenty-

five years incarcerations, suspended after serving ten years, mandatory minimum, followed by probation. Had Abrajan-Cobaxin gone to trial and been found guilty as

charged, he faced 27 years mandatory minimum, in jail time and up to life in

prison. The Court agreed with the sentence recommendation of the parties and

sentenced Abrajan-Cobaxin accordingly.

Abrajan-Cobaxin did not appeal his conviction to the State Supreme Court.

Instead, he filed a pro se Motion for Review of Sentence, which the Court denied.1

Next, Abrajan-Cobaxin filed the pending Motion for Postconviction Relief,

Pursuant to Superior Court Criminal Rule 61 on July 14, 2021, in which he alleges

in part, ineffective assistance of counsel. Abrajan-Cobaxin filed a companion

Motion for the Appointment of Counsel, which the Court denied. 2

FACTS

According to the Affidavit of Probable Cause, on January 26, 2020, the

Dover Police Department was notified of a report of a sexual assault of a child.

The victim’s mother, who was the longtime girlfriend of Abrajan-Cobaxin, had

discovered a text message on her 16-year-old daughter’s cell phone that suggested

that Abrajan-Cobaxin was having a sexual relation with the victim. When

interviewed by the Dover Police, the victim stated that Abrajan-Cobaxin had been

forcing her to have sexual intercourse with her, against her will since she was 8-

years old, on a regular basis. The last incident had occurred on January 23, 2020,

1 State v. Abrajan-Cobaxin, Del. Super., ID NO 2001016205, Clark, RJ., (Apr. 16, 2021) (Order) when Abrajan-Cobaxin penetrated her with his penis, and he was not wearing a

condom. The victim submitted to a SANE examination and the clothing she had

been wearing during the sexual assault was retained for evidence.3 When

interviewed by the police, Abrajan-Cobaxin gave vague explanations for the text

messages. When police looked at his cell phone, they discovered Abrajan-Cobaxin

had deleted all texts to or from the victim. Additionally, in his Rule 61 Motion,

Abrajan-Cobaxin explicitly admits to having intercourse with the victim when she

as 16-years old.

Abrajan-Cobaxin Contentions

Ground One: Actual Innocence by Extraordinary Circumstances. The plaintiff is not a natural born citizen; his previous country was Mexico. Spanish countries comparatively, have one law for the countries (sp.) entirety; however, in the United States, law vary from state to state, that even natural born citizens do not know and would surprise them. In many states, 16 is legal age of consent in U.S. Plaintiff [] aware of 16 years old legal age, committed sexual acts under said law, presuming the U.S. was on one accord.

Ground Two: Forced Plea. Attorney Abram used several tactics (to be discussed in response brief)4 to scare Mr. Abrajan-Cobaxin, into accepting said plea… stating, for example, if the plaintiff refused, he was guaranteed life.

2 State v. Abrajan-Cobaxin, Del. Super., ID NO 2001016205, Clark, RJ., (Aug. 24, 2021) (Order) 3 In its reply, the State notes that DNA tests done on the victim’s swabs indicates the presence of Abrajan-Cobaxin semen 4 I note Abrajan-Cobaxin never filed a “response brief.” Ground Three: Unfullable (sp.) plea – Need of Immediate Release. The plea is on the basis, as a resident of America soil, plaintiff will do probation and remaining Level 5 time; however simutanously (sp.) the Court has argued he cannot stay in U.S.; thereby unfullable (sp.) without granted citizenship.

Abrajan-Cobaxin did not file a Memorandum of Law, and this constitutes his entire

argument.

DISCUSSION

Under Delaware law, the Court must first determine whether Abrajan-

Cobaxin has met the procedural requirements of Superior Court Criminal Rule

61(i) before it can consider the merits of the postconviction relief claim.5 Under

Rule 61, postconviction claims for relief must be brought within one year of the

conviction becoming final. 6 Abrajan-Cobaxin’s motion was filed in a timely

fashion, thus the bar of Rule 61(i)(1) does not apply to the Motion. As this is

Abrajan-Cobaxin initial motion for postconviction relief, the bar of Rule 61(i)(2),

which prevents consideration of any claim not previously asserted in a

postconviction motion, does not apply either.

None of Abrajan-Cobaxin’s claims were raised previously at his plea,

sentencing, or on direct appeal. Consequently, they are barred under Superior

Court Criminal Rule 61(i)(3) unless he demonstrates: (1) cause for relief from the

5 Bailey v. State, 588 A,2d 1121, 1127 (Del. 1991) 6 Super. Ct. Crim. R. 61(i)(1) procedural default; and (2) prejudice from a violation of the movant’s rights. 7 The

bars to relief are inapplicable to a jurisdictional challenge or “to a claim that

satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision

(d) of this rule.8 To meet the requirements of Rule 61 (d)(2) a defendant must plead

with particularity that new evidence exists that creates a strong inference that the

movant is actually innocent in fact of the acts underlying the charges of which he 9 was convicted or that he pleads with particularity a claim that a new rule of

constitutional law, made retroactive to cases on collateral review by the United

States or Delaware Supreme Courts, applies to the defendant’s case rendering the

conviction invalid.10 Abrajan-Cobaxin’s motion alleges actual innocence but he

misunderstands the law and as detailed below. Additionally, although he claims

“actual innocence” his claim is not based on “newly discovered evidence,” as

required by the Rule.

Each of Abrajan-Cobaxin’s grounds for relief are premised on allegations of

ineffective assistance of counsel. Therefore Abrajan-Cobaxin has alleged sufficient

cause for not having asserted these grounds for relief at trial and on direct appeal.

Abrajan-Cobaxin’s ineffective assistance of counsel claims are not subject to the

procedural default rule, in part because the Delaware Supreme Court will not

7 Super. Ct. Crim. R. 61(i)(3). 8 Super. Ct. Crim R. 61(i)(5) 9 Super. Ct. Crim. R. 61(d)(2)(i) generally hear such claims for the first time on direct appeal. For this reason, many

defendants, including Abrajan-Cobaxin, allege ineffective assistance of counsel in

order to overcome the procedural default. “However, this path creates confusion if

the defendant does not understand that the test for ineffective assistance of counsel

and the test for cause and prejudice are distinct, albeit similar, standards.”11 The

United States Supreme Court has held that:

[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not ‘conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance;’ [i]neffective assistance of counsel then is cause for a procedural default.12

A movant who interprets the final sentence of the quoted passage to mean that he

can simply assert ineffectiveness and thereby meet the cause requirement will miss

the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a

movant must engage in the two-part analysis enunciated in Strickland v.

Washington13 and adopted by the Delaware Supreme Court in Albury v. State.14

The Strickland test requires the movant show that counsel's errors were so

grievous that his performance fell below an objective standard of reasonableness.15

Second, under Strickland the movant must show there is a reasonable degree of

10 Super. Ct. Crim. R. 61(d)(2)(ii) 11 State v. Gattis, 1995 WL 790961 (Del. Super.). 12 Murray v. Carrier, 477 U.S. 478, 488 (1986). 13 466 U.S. 668 (1984). 14 551 A.2d 53, 58 (Del. 1988). probability that but for counsel's unprofessional error the outcome of the

proceedings would have been different, that is, actual prejudice.16 In setting forth a

claim of ineffective assistance of counsel, a defendant must make and substantiate

concrete allegations of actual prejudice or risk summary dismissal. 17 When

examining the representation of counsel pursuant to the first prong other the

Strickland test, there is a strong presumption that counsel’s conduct was

professionally reasonable .18 This standard is highly demanding.19 Strickland

mandates that, when viewing counsel’s representation, this Court must endeavor to

“eliminate the distorting effects of hindsight .”20

Following a complete review of the record in this matter, it is abundantly

clear that Abrajan-Cobaxin has failed to allege any facts sufficient to substantiate

his claims that his attorney was ineffective. I find trial counsel’s affidavit, in

conjunction with the record, more credible that Abrajan-Cobaxin’s self-serving

claims that his counsel’s representation was ineffective. Abrajan-Cobaxin’s

counsel clearly denied the allegations.

15 Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). 16 Id. 17 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465 at *1 (Del. Supr.)). 18 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689) 19 Flamer v. State, 585 A.2d 736, 754 (Del. 1990) (quoting Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)). 20 Strickland, 466 U.S. at 689 Abrajan-Cobaxin was facing the possibility of life in prison and 27 years of

mandatory minimum time. The sentence and plea were very reasonable under all

the circumstances, especially in light of the strong evidence against him. Prior to

the entry of the plea, Abrajan-Cobaxin and his attorney discussed the case and the

plea. The plea bargain was clearly advantageous to Abrajan-Cobaxin. Counsel was

successful in negotiating an extremely beneficial plea bargain with the State.

Counsel’s representation was certainly well within the range required by

Strickland. Additionally, when Abrajan-Cobaxin entered his plea, he stated he was

satisfied with the defense counsel’s performance. He is bound by his statement

unless he presents clear and convincing evidence to the contrary.21 Consequently,

Abrajan-Cobaxin has failed to establish that his counsel’s representation was

ineffective under the Strickland test.

Even assuming, arguendo, that counsel’s representation of Abrajan-Cobaxin

was somehow deficient, Abrajan-Cobaxin must satisfy the second prong of the

Strickland test, prejudice. In setting forth a claim of ineffective assistance of

counsel, a defendant must make concrete allegations of actual prejudice and 22 substantiate them or risk dismissal. In an attempt to show prejudice, Abrajan-

Cobaxin simply asserts that his counsel was ineffective by coercing him into

21 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.) (citing Sullivan v. State, 636 A.2d 931, 937- 938 (Del. 1994)). 22 Larson v. State, 1995 WL 389718, at *2(Del.Supr.) (citing Younger v. State, 580 A.2d 552, pleading guilty. Abrajan-Cobaxin’s Trial Counsel clearly denied coercing him.

Abrajan-Cobaxin also claims “actual innocence” because he thought the age of

consent in Delaware was 16-years old. This is a meritless argument. First,

ignorance of the laws is not a defense to a crime. Wien v. State.23 Second, the

victim states the intercourse was not consensual. The argument is meritless.

Finally, Abrajan-Cobaxin makes an argument based on his illegal resident status.

As noted, by both Abrajan-Cobaxin’s Trial Counsel and the State, this argument is

meritless and there is no relief possible. My review of the facts of the case leads

met to conclude that Counsel’s representation of Abrajan-Cobaxin was well within

the requirements of the Sixth Amendment and no prejudice has been demonstrated.

His statements are insufficient to establish prejudice, particularly in light of the

evidence against him. Therefore, I find Abrajan-Cobaxin’s grounds for relief are

meritless.

To the extent that Abrajan-Cobaxin alleges his plea was involuntary, the

record contradicts such allegations. When addressing the question of whether a

plea was constitutionally knowing and voluntary, the Court looks to a plea

colloquy to determine if the waiver of constitutional rights was knowing and

voluntary.24 At the guilty-plea hearing, the Court asked Abrajan-Cobaxin whether

556 (Del. 1990)). 23 882 A.2d 183, 190 (Del.2004) See also (****) 24 Godinez v. Moran, 509 U.S. 389, 400 (1993). he understood the nature of the charges, the consequences of his pleading, and

whether he was voluntarily entering the plea. The Court Asked Abrajan-Cobaxin if

he was guilty of Rape in the Second degree. The Court asked Abrajan-Cobaxin if

he understood he would waive his constitutional rights if he entered the plea

including the right to suppress evidence; if he understood each of the constitutional

rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”);

and whether he gave truthful answers to all the questions on the form. The Court

asked Abrajan-Cobaxin if he had discussed his plea and its consequences fully

with his attorney. The Court also asked Abrajan-Cobaxin if he was satisfied with

this counsel’s representation. The Court asked Abrajan-Cobaxin if he was aware of

the immigration consequences of his plea. Abrajan-Cobaxin answered each of

these questions affirmatively.25 I find counsel’s representations far more credible

than Abrajan-Cobaxin’s self-serving, vague allegations.

Furthermore, prior to entering his plea, Abrajan-Cobaxin signed a Guilty

Plea Form and Plea Agreement in his own handwriting. Abrajan-Cobaxin’s

signature on the forms indicate that he understood the constitutional rights he was

relinquishing by pleading guilty and that he freely and voluntarily decided to plead

guilty to the charges listed in the Plea Agreement. Abrajan-Cobaxin is bound by

the statements he made on the signed Guilty Plea Form unless he proves otherwise

25 State v. Abrajan-Cobaxin, Del. Super. ID No. 2001016205 (January 14, 2021) Tr. at 6-16 by clear and convincing evidence.26 I confidently find that Abrajan-Cobaxin

entered his plea knowingly and voluntarily and that Abrajan-Cobaxin’s grounds for

relief are completely meritless.

CONCLUSION

I find that Abrajan-Cobaxin’s counsel represented him in a competent and

effective manner as required by the standards set in Strickland and that Abrajan-

Cobaxin has failed to demonstrate any prejudice stemming from the representation.

I also find that Abrajan-Cobaxin’s guilty plea was entered knowingly and

voluntarily. I recommend that the Court deny Abrajan-Cobaxin’s Motion for

Postconviction Relief as procedurally barred and meritless.

/s/Andrea M. Freud Commissioner AMF/jan oc: Prothonotary cc: Resident Judge Jeffry J Clark Alicia Porter, Esq. Michael Abram, Esq. Juan C. Abrajan-Cobaxin, S

26 Somerville v. State, 703 A.2d 629, 632 (Del.1997)