State v. Cirwithian

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID Nos. 1812006782 ) 1812014043 JOSHUA CIRWITHIAN, ) ) Defendant. )

ORDER

1. On this 20th day of March, 2024, upon consideration of the Superior Court

Commissioner’s Report and Recommendation, Defendant Joshua Cirwithian’s

(“Defendant”) Motion for Postconviction Relief made pursuant to Superior Court

Rule of Criminal Procedure 61,1 Postconviction Counsel Kimberly Price’s

(“Postconviction Counsel”) Motion to Withdraw,2 and the record in this case, it

appears to the Court that:

2. On August 1, 2021, Defendant filed the instant Motion for Postconviction

Relief.3 On the same day, Defendant filed a Motion for Appointment of Counsel.4

On November 1, 2021, the Court granted Defendant’s Motion for Appointment of

Counsel.5 Subsequently, the Court appointed Postconviction Counsel to represent

Defendant in his Motion for Postconviction Relief. Then, on February 10, 2023,

1 D.I.s 1812006782-58, 1812014043-72. 2 D.I.s 1812006782-75, 1812014043-88. 3 D.I.s 1812006782-58, 1812014043-72. 4 D.I.s 1812006782-59, 1812014043-73. 5 D.I.s 1812006782-61, 1812014043-75. Postconviction Counsel filed the instant Motion to Withdraw.6 On March 8, 2023,

Defendant filed a brief in opposition to Postconviction Counsel’s Motion to

Withdraw.7 On May 2, 2023, Trial Counsel Elliot M. Margules (“Trial Counsel”)

filed an affidavit in response to the ineffective assistance of counsel allegations that

Defendant raises in his Motion for Postconviction Relief.8

3. On June 6, 2023, Defendant filed a brief to supplement his Motion for

Postconviction Relief.9 On June 12, 2023, the State filed a brief in opposition to

Defendant’s Motion for Postconviction Relief.10 On July 11, 2023, Defendant filed

a brief in response to the State’s brief.11

4. On October 26, 2023, Defendant filed a second brief to supplement his

Motion for Postconviction Relief.12 On November 21, 2023, Trial Counsel filed a

second affidavit in response to Defendant’s ineffective assistance of counsel

allegations against him.13

5. On January 30, 2024, Defendant sent a pro se letter to this Court, in which

he alleges that the State forged the Certificate of Authenticity document (the

6 D.I.s 1812006782-75, 1812014043-88. 7 D.I.s 1812006782-78, 1812014043-91. 8 D.I.s 1812006782-78, 1812014043-93. 9 D.I.s 1812006782-79, 1812014043-94. 10 D.I.s 1812006782-80, 1812014043-95. 11 D.I. 1812006782-81. 12 D.I. 1812014043-103. 13 D.I. 1812014043-104. “Certificate”) that was presented at trial to authenticate Facebook messages.14 The

State had offered these messages to corroborate the testimony of the victim.15

6. Defendant’s Motion for Postconviction Relief and Postconviction

Counsel’s Motion to Withdraw were referred to the Commissioner pursuant to 10

Del. C. § 512(b) and Rule 62 for proposed findings of fact and conclusions of law.

On February 28, 2024, the Commissioner issued a Report and Recommendation, in

which he recommended that the Court summarily dismiss Defendant’s Motion for

Postconviction Relief and grant Postconviction Counsel’s Motion to Withdraw.16

7. On February 29, 2024, the Court wrote to the parties, requesting that they

file responses to the allegations that Defendant made against the State in his January

30, 2024 pro se letter.17

8. On March 5, 2024, the State responded by letter to this Court, in which it

denies forging the Certificate that was offered to authenticate the Facebook

messages. The State emphasizes the Commissioner’s statement that “the State

established a rational basis from which the judge could conclude the evidence was

connected to the Defendant.”18 The State asserts that Defendant has not factually

supported his conclusory allegation of forgery.

14 D.I.s 1812006782-91, 1812014043-105. 15 Id. 16 D.I.s 1812006782-92, 1812014043-106. 17 D.I. 1812014043-110. 18 D.I.s 1812006782-92, 1812014043-106. 9. On March 5, 2024, Postconviction Counsel responded by letter to this

Court, likewise taking the position that Defendant’s pro se forgery claim is

conclusory and unsupported by the record in this case. Postconviction Counsel also

emphasizes that, in the Report and Recommendation, the Commissioner recognized

that Trial Counsel did challenge the authenticity of the Facebook account, but found

that the Facebook messages were properly authenticated at trial.

10. A party can file and serve written objections to a Commissioner’s order

“[w]ithin ten days after filing of a Commissioner’s proposed findings of fact and

recommendations.”19 In this case, neither party filed and served an objection on or

before March 12, 2023, ten days after the Commissioner filed his Report and

Recommendation.

11. The Court adopts the Commissioner’s Report and Recommendation in its

entirety for the reasons set forth therein. The Commissioner’s findings are not

clearly erroneous, contrary to law, or an abuse of discretion.20 Defendant’s pro se

allegation that the State forged the Certificate does not justify rejecting the Report

and Recommendation. The Court finds that Defendant’s forgery allegation is

conclusory, lacks factual support, and, because it lacks any basis in fact, it does not

warrant an independent hearing. Hence, Defendant’s Motion for Postconviction

19 Super. Ct. Crim. R. 62(a)(5)(ii). 20 Super. Ct. Crim. R. 62(a)(5)(iv). Relief is hereby DENIED and Postconviction Counsel’s Motion to Withdraw is

hereby GRANTED.

IT IS SO ORDERED.

/s/ Sheldon K. Rennie ______________________________ Sheldon K. Rennie, Judge