State v. Cushner

• Court: Superior Court of Delaware
• Decided: December 1, 2020
• Docket: 1710011753
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) v. ) ID Nos. 1710011753 ) Cr. A. Nos. IN17-11-0345, etc. RICHARD M. CUSHNER, ) Defendant.)

Submitted: November 6, 2020 Decided: December 1, 2020

ORDER DISMISSING MOTION FOR POSTCONVICTION RELIEF AND GRANTING COUNSEL’S MOTION TO WITHDRAW

(1) This 1st day of December, 2020, upon consideration of Defendant

Richard M. Cushner’s Motion for Postconviction Relief (D.I. 39), his postconviction

attorneys’ Motion to Withdraw and supplement (D.I. 50 and 51), and the record in

this case, it appears to the Court that:

(2) In July 2018, following a two-day jury trial, Richard M. Cushner, was

convicted of one count of third degree burglary and related criminal mischief

charges.1

(3) Several months later, Cushner was sentenced to serve, inter alia, a

prison term under the provisions of the Habitual Criminal Act.2

1 D.I. 15. 2 D.I. 20-21. (4) Cushner filed a direct appeal to the Delaware Supreme Court. His

convictions and sentence were affirmed.3

(5) Cushner then filed a first and timely pro se motion for postconviction

relief under Superior Court Criminal Rule 61 and a request for appointment of

counsel to assist him with that motion.4 In sum, Cushner’s pro se prolix filing

devolved to two main contentions with numerous subparts: (1) a claim of ineffective

assistance of counsel complaining that his trial counsel failed to object to a leading

question, failed to properly conduct cross-examination of a key witness, and failed

to call witnesses he believed would provide exculpatory evidence; and

(2) a sufficiency of evidence claim.

(6) In accord with this Court’s Criminal Rule 61(e), Cushner was appointed

postconviction counsel (“PCR Counsel”).5 PCR Counsel have now filed a Motion

to Withdraw pursuant to Rule 61(e)(7) with a detailed supporting memorandum.6

PCR Counsel assert that, based upon a careful and complete examination of the

record, there are no meritorious grounds for relief.

3 Cushner v. State, 214 A.3d 443 (Del. 2019). 4 D.I. 39 and 40. 5 D.I. 43. 6 D.I. 50 and 51.

-2- (7) Under this Court’s Criminal Rule 61(e)(7):

If counsel considers the movant’s claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel’s opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.7

(8) Cushner’s PCR Counsel have represented that, after careful review of

Cushner’s case, they have determined that Cushner’s claims are so lacking in merit

that they cannot ethically advocate them; and further, that PCR Counsel are not

aware of any other substantial ground for relief.8 PCR Counsel provided Cushner

with a copy of the Motion and advised Cushner of his ability under Rule 61(e)(7) to

file a response within 30 days.9 Cushner filed no such response.

(9) The Court gave Cushner an additional opportunity to file any response

to the motion to withdraw and notice that the Court had—as required by Criminal

Rule 61(d)—carefully reviewed his filings, those of postconviction counsel, and the

complete record of the prior proceedings in this case. The Court gave further notice

that from that thorough review, it plainly appeared that Cushner was not entitled to

7 SUPER. CT. CRIM. R. 61(e)(7). 8 Mot. to Withdraw at 27. 9 D.I. 50.

-3- postconviction relief. And so, the Court warned that Cushner’s continued failure to

file either a response to the motion to withdraw or other notice of his intent to further

prosecute his postconviction application would be deemed his consent to the Court’s

entry of summary dismissal under Criminal Rule 61(d)(5).10 Again, Cushner has

failed to respond.

(10) “In order to evaluate [Cushner’s Motion for Postconviction Relief], and

to determine whether [PCR Counsel’s Motion to Withdraw] should be granted, the

court should be satisfied that [PCR Counsel] made a conscientious examination of

the record and the law for claims that could arguably support [Cushner’s] Rule 61

motion. In addition, the court should conduct its own review of the record in order

to determine whether [Cushner’s] Rule 61 motion is devoid of any, at least, arguable

postconviction claims.”11

(11) Having reviewed the record carefully, the Court has concluded that

Cushner’s initial pro se claims (which he now appears to have abandoned) are

without merit, that no other substantial ground for relief exists, and it plainly appears

that Cushner is not entitled to postconviction relief. Accordingly, Cushner’s Motion

10 (D.I. 70). 11 State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Ct. Dec. 7, 2017) (internal citations and quotations omitted).

-4- for Postconviction Relief is DISMISSED under Criminal Rules 61(d)(5) and (e)(7)

and PCR Counsel’s Motion to Withdraw is GRANTED.

IT IS SO ORDERED,

/s/ Paul R. Wallace Paul R. Wallace, Judge

Original to Prothonotary

cc: Mr. Richard Cushner, pro se Brian L. Arban, Deputy Attorney General Marc C. Petrucci, Deputy Attorney General Patrick J. Collins, Esquire Kimberly A. Price, Esquire Nicole M. Walker, Esquire Andrew J. Meyer, Esquire

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