IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 1809000343 ) DARRYL GRAYSON, ) ) Defendant. )
Submitted: February 2, 2021 Decided: May 7, 2021
Defendant’s Motion for Postconviction Relief. DENIED. Defendant’s Request for Appointment of Postconviction Counsel. DENIED.
ORDER
Before the Court are some motions filed by the defendant pro se. One is a
motion for postconviction relief alleging ineffective assistance of counsel (“Rule
61”). A second is a request for appointment of counsel in connection with the Rule
61 motion.
1. The Defendant pled guilty to the charges that put him in his current
situation. Rule 61 provides that in cases in which the defendant pled guilty, counsel
may be appointed to represent him in his Rule 61 proceeding if the following criteria
have been satisfied:
(i) the conviction has been affirmed by final order upon direct appellate
review or direct appellate review is unavailable; 1 (ii) the motion sets forth a substantial claim that the movant received
ineffective assistance of counsel in relation to the plea of guilty or nolo
contendere;
(iii) granting the motion would result in vacatur of the judgment of
conviction for which the movant is in custody; and
(iv) specific exceptional circumstances warrant the appointment of counsel.
2. Applying these criteria to this case, defendant did not appeal his conviction
and, at this point, a right of appeal is not available to him.
3. Defendant’s substantive claims are threefold: 1) that counsel failed to raise
“proper” arguments in favor of suppression of the evidence against him; 2) that the
trial court abused its discretion by giving him a disproportionate sentence compared
to his co-defendants; and 3) he has a right to a transcript of all proceedings.
4. As to whether his trial counsel raised proper arguments in his suppression
hearing, we begin by noting that this was a wiretap/racketeering case and defense
counsel did, in fact, move to suppress the fruits of the wiretap evidence, arguing that
there was no probable cause or necessity shown in the affidavit supporting the
wiretap authorization. Those issues were fully briefed, argued and decided against
Defendant.
5. In his pleading here, Defendant notes that the affidavit supporting the
wiretap references a “gang” operating in the Hilltop section of Wilmington.
2 According to the Defendant, the lack of specificity as to which gang was unduly
inflammatory. Moreover, Defendant says there was no evidence of any specific
gang and the officers’ statement was made with reckless disregard for the truth.
6. This argument is about the affidavit of probable cause to support the
wiretap, not a claim of inflaming a jury with scary language about the problem of
criminal street gangs. It is widely understood that judges will ignore inadmissible,
impertinent or unfairly prejudicial evidence in making judicial findings.1 The
affidavit purported to lay out a “Drug Trafficking Organization.” Whether it
“qualified” as a “gang” depends, one supposes, on one’s definition of a “gang”.2
What is certain is that the mere use of the term in an affidavit of probable cause
supporting a wiretap warrant does not vitiate the probable cause in any way and
would not have resulted in suppression of the evidence derived from the wiretap
itself.
1 See Kurzmann v. State, 903 A.2d 702, 709 n.7 (Del. 2006) (citing Burke v. State, 1997 WL 139813, at *2 (Del. Mar. 19, 1997) (“[A] judge, sitting as a trier of fact, is presumed to have made his verdict only on the admissible evidence before him and to have disregarded that which is inadmissible.” (quoting United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993))). 2 Webster’s Dictionary defines a “gang” as a) “a group of persons working to unlawful or antisocial ends, b) a group of persons working together, or c) a group of persons having informal and usually close social relations.” Perhaps prophetically, the dictionary example of using “gang” in a sentence is “a gang of drug dealers.” Gang, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/gang (last visited May 6, 2021). 3 7. Defendant’s second complaint about his attorney is that counsel did not
appeal the denial of his suppression motion. But denial of a suppression motion is
not a “final order” in a criminal case and cannot be appealed until after a trial and
sentencing. And a guilty plea waives all defects in the record except 1) the
jurisdiction of the Court, 2) the voluntariness of the plea or 3) the legality of the
sentence. Defendant’s plea of guilty constituted a waiver of any right to appeal the
denial of his suppression motion. Defendant cannot claim the benefits of a bargained
plea while at the same time appealing the correctness of the trial court’s suppression
ruling. Thus, his counsel cannot be ineffective for failing to appeal an order that was
not appealable, especially after Defendant accepted the plea bargain offered by the
State.
8. Finally, Defendant claims that counsel was ineffective for not challenging
the officers’ sworn assertions that when the conspirators were speaking on the phone
about “blue t-shirts” and “white t-shirts,” they were, as averred by the officers,
speaking about drug transactions. Defendant has not suggested what they were
talking about, but given the rest of the facts sworn to in the probable cause affidavit,
t-shirts was unlikely. In other words, Defendant’s complaint that the coded language
used by the conspirators was too clever to have been deciphered by the average,
experienced drug enforcement officer is unconvincing. While all this takes
Defendant to the end of a sentence, it does not take him much further. The issue of
4 probable cause to obtain the wiretaps was raised by counsel and litigated. Indeed,
counsel’s arguments in favor of suppression were far more compelling than whether
the subjects were engaging in “drug talk,” but even counsel’s better arguments were
unsuccessful.
9. Defendant has failed to raise a “substantial” claim of ineffectiveness of
trial counsel that might result in reversal of the judgment of conviction or that some
exceptional circumstance exists that warrants the appointment of counsel. 3
10. As to his complaint of a disproportionate sentence, that claim could
have been raised on direct appeal, not direct appeal was taken, and the claim is thus
waived. But even if the Court were to take on the issue, it is without merit.
11. Under the terms of Defendant’s guilty plea, he accepted a sentencing
recommendation whereby he understood that 1) he was eligible for Habitual
Offender sentencing, 2) he faced a minimum mandatory sentence of 12.5 years, and
3) the State intended to “cap” its recommended Level 5 sentence at 18 years. 4 The
State did in fact recommend 18 years of unsuspended Level 5 time and the Court
ultimately imposed 15 years – midway between the mandatory minimum and the
State’s recommendation.
3 Super. Ct. Crim. R. 61(e)(3). 4 Plea Agreement, D.I. 36. 5 12. Defendant says some of his co-defendants got less time and he got
more. His complaint is not further refined than that and it is not for the Court to
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE ) ) v. ) I.D. No. 1809000343 ) DARRYL GRAYSON, ) ) Defendant. )
Submitted: February 2, 2021 Decided: May 7, 2021
Defendant’s Motion for Postconviction Relief. DENIED. Defendant’s Request for Appointment of Postconviction Counsel. DENIED.
ORDER
Before the Court are some motions filed by the defendant pro se. One is a
motion for postconviction relief alleging ineffective assistance of counsel (“Rule
61”). A second is a request for appointment of counsel in connection with the Rule
61 motion.
1. The Defendant pled guilty to the charges that put him in his current
situation. Rule 61 provides that in cases in which the defendant pled guilty, counsel
may be appointed to represent him in his Rule 61 proceeding if the following criteria
have been satisfied:
(i) the conviction has been affirmed by final order upon direct appellate
review or direct appellate review is unavailable; 1 (ii) the motion sets forth a substantial claim that the movant received
ineffective assistance of counsel in relation to the plea of guilty or nolo
contendere;
(iii) granting the motion would result in vacatur of the judgment of
conviction for which the movant is in custody; and
(iv) specific exceptional circumstances warrant the appointment of counsel.
2. Applying these criteria to this case, defendant did not appeal his conviction
and, at this point, a right of appeal is not available to him.
3. Defendant’s substantive claims are threefold: 1) that counsel failed to raise
“proper” arguments in favor of suppression of the evidence against him; 2) that the
trial court abused its discretion by giving him a disproportionate sentence compared
to his co-defendants; and 3) he has a right to a transcript of all proceedings.
4. As to whether his trial counsel raised proper arguments in his suppression
hearing, we begin by noting that this was a wiretap/racketeering case and defense
counsel did, in fact, move to suppress the fruits of the wiretap evidence, arguing that
there was no probable cause or necessity shown in the affidavit supporting the
wiretap authorization. Those issues were fully briefed, argued and decided against
Defendant.
5. In his pleading here, Defendant notes that the affidavit supporting the
wiretap references a “gang” operating in the Hilltop section of Wilmington.
2 According to the Defendant, the lack of specificity as to which gang was unduly
inflammatory. Moreover, Defendant says there was no evidence of any specific
gang and the officers’ statement was made with reckless disregard for the truth.
6. This argument is about the affidavit of probable cause to support the
wiretap, not a claim of inflaming a jury with scary language about the problem of
criminal street gangs. It is widely understood that judges will ignore inadmissible,
impertinent or unfairly prejudicial evidence in making judicial findings.1 The
affidavit purported to lay out a “Drug Trafficking Organization.” Whether it
“qualified” as a “gang” depends, one supposes, on one’s definition of a “gang”.2
What is certain is that the mere use of the term in an affidavit of probable cause
supporting a wiretap warrant does not vitiate the probable cause in any way and
would not have resulted in suppression of the evidence derived from the wiretap
itself.
1 See Kurzmann v. State, 903 A.2d 702, 709 n.7 (Del. 2006) (citing Burke v. State, 1997 WL 139813, at *2 (Del. Mar. 19, 1997) (“[A] judge, sitting as a trier of fact, is presumed to have made his verdict only on the admissible evidence before him and to have disregarded that which is inadmissible.” (quoting United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993))). 2 Webster’s Dictionary defines a “gang” as a) “a group of persons working to unlawful or antisocial ends, b) a group of persons working together, or c) a group of persons having informal and usually close social relations.” Perhaps prophetically, the dictionary example of using “gang” in a sentence is “a gang of drug dealers.” Gang, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/gang (last visited May 6, 2021). 3 7. Defendant’s second complaint about his attorney is that counsel did not
appeal the denial of his suppression motion. But denial of a suppression motion is
not a “final order” in a criminal case and cannot be appealed until after a trial and
sentencing. And a guilty plea waives all defects in the record except 1) the
jurisdiction of the Court, 2) the voluntariness of the plea or 3) the legality of the
sentence. Defendant’s plea of guilty constituted a waiver of any right to appeal the
denial of his suppression motion. Defendant cannot claim the benefits of a bargained
plea while at the same time appealing the correctness of the trial court’s suppression
ruling. Thus, his counsel cannot be ineffective for failing to appeal an order that was
not appealable, especially after Defendant accepted the plea bargain offered by the
State.
8. Finally, Defendant claims that counsel was ineffective for not challenging
the officers’ sworn assertions that when the conspirators were speaking on the phone
about “blue t-shirts” and “white t-shirts,” they were, as averred by the officers,
speaking about drug transactions. Defendant has not suggested what they were
talking about, but given the rest of the facts sworn to in the probable cause affidavit,
t-shirts was unlikely. In other words, Defendant’s complaint that the coded language
used by the conspirators was too clever to have been deciphered by the average,
experienced drug enforcement officer is unconvincing. While all this takes
Defendant to the end of a sentence, it does not take him much further. The issue of
4 probable cause to obtain the wiretaps was raised by counsel and litigated. Indeed,
counsel’s arguments in favor of suppression were far more compelling than whether
the subjects were engaging in “drug talk,” but even counsel’s better arguments were
unsuccessful.
9. Defendant has failed to raise a “substantial” claim of ineffectiveness of
trial counsel that might result in reversal of the judgment of conviction or that some
exceptional circumstance exists that warrants the appointment of counsel. 3
10. As to his complaint of a disproportionate sentence, that claim could
have been raised on direct appeal, not direct appeal was taken, and the claim is thus
waived. But even if the Court were to take on the issue, it is without merit.
11. Under the terms of Defendant’s guilty plea, he accepted a sentencing
recommendation whereby he understood that 1) he was eligible for Habitual
Offender sentencing, 2) he faced a minimum mandatory sentence of 12.5 years, and
3) the State intended to “cap” its recommended Level 5 sentence at 18 years. 4 The
State did in fact recommend 18 years of unsuspended Level 5 time and the Court
ultimately imposed 15 years – midway between the mandatory minimum and the
State’s recommendation.
3 Super. Ct. Crim. R. 61(e)(3). 4 Plea Agreement, D.I. 36. 5 12. Defendant says some of his co-defendants got less time and he got
more. His complaint is not further refined than that and it is not for the Court to
guess who or what he has in mind.5 This was a hierarchical drug racketeering case
in which Defendant was identified as one of the ringleaders. The group generally
dealt in very large (by Wilmington standards) amounts of heroin and fentanyl.
Defendant himself brought with him to Court a miserable criminal history that
included prior drug convictions as well as other offenses under Title 11. His role in
the organization was somewhere near the top, his criminal history was terrible, and
his sentence was less than what he knew the State would “cap” and only modestly
more than was mandated by the terms of his plea. His claim to disproportionate
treatment at sentencing is not well made out.
13. Finally, Defendant claims he has a right to “review all proceedings
leading up to his conviction as well as an open inquiry into the intrinsic fairness of
those proceedings.”6 But he relies upon a decision involving the availability of
5 Of the many individuals caught up in this indictment, the State identified defendants Grayson, Walter Battle, and Victor Fairley as the ringleaders. The sentencing records show that Grayson received 15 years of prison time, Battle received 14 years and Fairley received 18 years. Perhaps Mr. Grayson is unfamiliar with his co-defendants’ sentences, but they are hardly the stuff of a disproportionate sentence argument. 6 Def.’s Mot. for Postconviction Relief at 17. 6 transcripts to support a direct appeal.7 Transcripts to support a collateral attack on a
conviction stand in a different position.
14. The right to transcripts to support postconviction relief has received
treatment in Delaware Courts. As Judge Steele commented: “A prisoner has no
absolute right to a transcript to assist him in the preparation of a collateral attack on
his conviction. Constitutional requirements are met by providing such materials only
after judicial certification that they are required to decide the issues presented in a
non-frivolous pending case.”8 Decisions made since then make clear that a movant
who seeks transcripts at state expense must show that transcripts will clarify or
further an argument that the record will demonstrate the violation of a fundamental
right.9 Whether to grant such requests ultimately rests within the sound discretion
of the Court.10
15. The Court does not find that the issues raised in Defendant’s motion
implicate a violation of any of Defendant’s fundamental rights and therefore denies
his request for transcripts of all proceedings. The Court has already found that
Defendant’s claims are “insubstantial” as that term is used in Rule 61(e)(3) and
7 Griffin v. Illinois, 351 U.S. 12 (1956), reh’g denied, 351 U.S. 985 (1956). 8 State v. Bordley, 1989 WL 135691, at *1 (Del. Super. Oct. 26, 1989); see State v. Ketchum, 2002 WL 234745, at *1 (Del. Super. Jan. 31, 2002). 9 Ketchum, 2002 WL 234745, at *1. 10 Super. Ct. Crim. R. 61(d)(3); see also id.; State v. Bordley, 1989 WL 135691, at *1. 7 therefore denies his request for appointed counsel. The same reasoning forces the
conclusion that it “plainly appears from the motion for postconviction relief and the
record of prior proceedings in the case that the movant is not entitled to relief.” As
such, the motion is subject to summary dismissal.11
16. For all the foregoing reasons, the Court will deny Defendant’s motion
for relief under Rule 61 and deny his concurrent motion for appointment of counsel.
IT IS SO ORDERED.
Charles E. Butler, Resident Judge
11 Super. Ct. Crim. Rule 61(d)(5). 8