State v. Kent

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

v. ) Case No. 1801002038 )

DONOVAN KENT, )

)

Defendant. )

Submitted: April 3, 20241 Decided: July 31, 2024

ORDER

Upon consideration of Defendant Donovan Kent’s Amended Motion for

Postconviction Relief, Superior Court Criminal Rule 61, statutory and decisional

law, and the entire record in this case, IT APPEARS THAT:

1. On March 12, 2018, Kent was indicted by a grand jury as follows: (1)

Rape Second Degree, two counts; (2) Unlawful Sexual Contact First Degree, three

counts; and (3) Continuous Sexual Abuse of a Child.2

2. On December 7, 2018, a Superior Court jury found Kent guilty of all

counts of Unlawful Sexual Contact and Continuous Sexual Abuse of a Child. 3 As

1 D.I. 89. 2 D.I. 2. 3 D.I. 21.

to the two counts of Rape Second Degree, the jury found Kent guilty of the lesser-

included offense of Attempted Rape Second Degree.4

3. On March 7, 2019, Kent’s trial counsel (“Trial Counsel”) filed a Motion

for Judgment of Acquittal and a Motion for New Trial with this Court.5 Both

motions were denied.

4. On August 14, 2020, the Court sentenced Kent to a total of 29 years at

Level V unsuspended.6 On November 3, 2021, the Delaware Supreme Court

affirmed Kent’s convictions on direct appeal.7

5. Kent timely filed his first motion for postconviction relief pro se and

sought appointment of counsel.8 The Court granted Kent’s request for

postconviction counsel (“Postconviction Counsel”)9 and Postconviction Counsel

filed an Amended Motion for Postconviction Relief10 (the “Motion”).

6. In his Motion, Kent raised two ineffective assistance of counsel claims.

Kent’s Trial Counsel and the State responded to Kent’s arguments,11 and Kent filed

4 Id. 5 D.I. 33 and 34. 6 D.I. 44. 7 Kent v. State, 262 A.3d 1065 (Del. 2021) (TABLE). 8 D.I. 60 and 61. 9 D.I. 64. 10 D.I. 72. After the Motion was filed, the case was specially reassigned from the trial judge to this judge for all purposes until final disposition. D.I. 69. 11 D.I. 76 and 78.

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a reply in further support of his claim.12 Oral argument and an evidentiary hearing13

were held subsequently.

7. Before addressing the merits of any claim for postconviction relief, this

Court must determine whether the Motion is barred procedurally under Superior

Court Criminal Rule 61.14 A motion for postconviction relief may be barred for

timeliness and repetition, among other things. A Rule 61 motion is untimely if it is

filed more than one year after final judgment of conviction.15 A defendant is also

barred from filing successive motions for relief under the Rule.16 Rule 61 further

prohibits motions based on grounds for relief that were not asserted in the

proceedings leading up to the judgment of conviction, unless the movant

demonstrates “[c]ause for relief from the procedural default” and “[p]rejudice from

violation of the movant’s rights.”17 Finally, the Rule bars consideration for relief on

grounds that previously were adjudicated in the case.18

12 D.I. 80. 13 The State and Postconviction Counsel initially advised the Court that an evidentiary hearing was not necessary (D.I. 81), however, during oral argument, issues arose that necessitated holding an evidentiary hearing. 14 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 15 Super. Ct. Crim. R. 61(i)(1). 16 Id. at 61(i)(2); See id. at 61(d)(2)(i)-(ii) (regarding the pleading requirements for successive motions). 17 Id. at 61(i)(3)(A)-(B). 18 Id. at 61(i)(4).

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8. Kent’s Motion was filed less than one year after his sentence became

final and therefore is timely. Because this is Kent’s first motion for postconviction

relief it is not barred as repetitive. Lastly, the Motion alleges ineffective assistance

of counsel, which could not have been raised at any earlier stage of the

proceedings;19 ineffective assistance claims may not be raised until postconviction

proceedings.20 Accordingly, the Motion will be decided on the merits.

9. When a claim of ineffective assistance of counsel is raised, the two-

prong test in Strickland v. Washington governs the analysis.21 To prevail, a

defendant must demonstrate that: (i) trial counsel’s representation fell below an

objective standard of reasonableness; and (ii) there is a reasonable probability that,

but for counsel’s errors, the result of the proceeding would have been different. 22

There is a strong presumption that counsel’s representation was reasonable.23 In

addition, it is not this Court’s function to second-guess reasonable tactics engaged

by trial counsel.24 An attorney’s strategic or tactical choices made after a thorough

19 Whittle v. State, 138 A.3d 1149 (Del. 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 20 See, e.g., Malloy v. State, 16 A.3d 938, 2011 WL 1135107, at *2 (Del. Mar. 28, 2011) (TABLE). 21 Strickland v. Washington, 466 U.S. 668, (1984); see also, Neal v. State, 80 A.3d 935, 941-42 (Del. 2013). 22 Id. 23 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 24 State v. Drummond, 2002 WL 524283, at *1 (Del. Super. Apr. 1, 2002).

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investigation or a reasonable decision that makes particular investigations

unnecessary are virtually unchallengeable.25

10. Kent first contends that it was unreasonable for Trial Counsel to attempt

to impeach the victim’s mother, Jessica Hepner, with testimony from Cathy Hudgins

because Trial Counsel failed to investigate Hudgins’s “flaws.”26 Second, Kent

argues Trial Counsel failed to move for acquittal on his Continuous Sexual Abuse

of a Child charge.27

11. As to the improper impeachment allegation, at oral argument, Kent

admits that impeaching the credibility of Hepner was a legitimate purpose but argues

Trial Counsel failed to investigate Hudgins’s “flaws.” Kent contends these “flaws”

arose during Hudgins’s cross-examination, which included a police report

contradicting Hudgins’s testimony and her shoplifting convictions.28

12. On cross-examination, the State asked Hudgins about her two

shoplifting convictions and whether Kent was “around a lot” when she and her

children lived in a motel.29 Hudgins truthfully answered the former question, but

not the latter. The State then impeached Hudgins with a police report in which she

25 Strickland, 466 U.S. at 690; Green v. State, 238 A.3d 160, 174 (Del. 2020). 26 D.I. 80 at 2. 27 D.I. 73 at 45-47. 28 D.I. 89 at 24:4-10. 29 A511:17-19.

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told a detective that Kent “used to be around” when she lived at the motel.30 Hudgins

continued to deny making this statement and accused the police officer of lying. 31

13. In his affidavit and at the evidentiary hearing, Trial Counsel admitted

to being ineffective. Trial Counsel, however, also testified that given the state of the

evidence against Kent, his strategy was to establish an ulterior motive for Hepner to

fabricate allegations against Kent and argue for “lesser-includeds.”32 Then, Trial

Counsel planned to argue to the jury that Hepner’s ulterior motive is a reason to

disbelieve the State’s case.33

14. Trial Counsel testified that the day before trial, he received the

impeachment information from the State. The email advised that in 2017 Hepner

told a police detective of another victim (“M”).34 Hepner alleged that M’s mother,

Hudgins, told Hepner that Kent also inappropriately touched M.35 M was

interviewed and did not make any disclosures, and Hudgins told the police detective

that she never made this statement to Hepner.36 Trial Counsel, then directed his

investigator to confirm Hudgins’s potential impeachment testimony, which the

30 A512:5-6 31 A512:10-17. 32 D.I. 89 at 5:15-20, 6:8-22, 30:4-13, and 33:14-18. 33 D.I. 89 at 23:22-24:2. 34 D.I. 89, Def. Ex. 1. 35 Id. 36 Id.

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investigator did.37 Trial Counsel further admitted he considered the implications of

calling Hudgins as a witness and established on the record, at sidebar, he understood

those implications but wanted to call Hudgins because it was in his client’s best

interest.38 Before a witness takes the stand, Trial Counsel advised that his usual

protocol is to speak to the witness at the courthouse. In doing so, he and his

investigator had an opportunity to observe Hudgins’s demeanor.39 The record

reflects Trial Counsel spoke with Hudgins before she testified, and thereafter, the

State advised Trial Counsel of Hudgins’s two shoplifting convictions.40 At trial,

Hudgins provided the expected impeachment testimony.41

15. When determining whether Trial Counsel’s strategy was reasonable,

the Court must “eliminate the distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time.”42 Judicial scrutiny of counsel’s performance must

37 D.I. 89 at 33:19-23, 34:19-21, 35:23-36:5, and Def. Ex. 2. 38 D.I. 89 at 27:2-28:2. At sidebar, Trial Counsel also explained the narrow scope of the planned testimony and adamantly objected to the State’s requests to broaden the scope. See A200:10-A209:17, A225:14-A231:14, A439:3-A443:23, A501:22- A504:17, A513:1-A514:10, A517:16-A521:4, and A544:15-A549:6. 39 D.I. 89 at 42:9-19 and 43:4-44:9. 40 A504:15-A505:18, A506:11-17. 41 D.I. 89 at 37:22-38:14. 42 Strickland, 466 U.S. at 689.

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be highly deferential and may not second-guess counsel’s assistance after conviction

or adverse sentence.43

16. Despite the “flaws” that arose from Trial Counsel’s strategy, there was

evidence of a reasonable strategy. Also, one of the “flaws” was the result of Hudgins

perjuring herself on cross-examination. Accordingly, Trial Counsel then abandoned

his trial strategy.44 Although Trial Counsel admitted in hindsight, that he should

have conducted a more thorough investigation of Hudgins and her testimony, as

noted above, hindsight is not the standard to determine whether an attorney’s

representation fell below the objective standard.45 Moreover, Trial Counsel testified

that he followed his usual investigation protocol.46

17. Kent has failed to overcome the strong presumption that Trial Counsel

acted reasonably,47 and therefore, Kent’s ineffective assistance claim related to

Hudgins’s impeachment must fail. Because the Court concludes that Trial Counsel’s

representation of Kent was within the wide range of reasonable professional

43 Id. 44 D.I. 89 at 24:13-17. 45 See Strickland, 466 U.S. at 669. 46 Separately, Trial Counsel’s strategy seemingly benefited Kent, particularly resulting in lesser-included charges for the two most serious offenses. 47 Burns v. State, 76 A.3d 780, 788 (Del. 2013) (“Under Strickland, the strategic decisions made by counsel are entitled to a strong presumption of reasonableness.”).

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assistance, the Court need not address Kent’s claim that his counsel’s alleged

deficiencies, deprived Kent of a fair trial.48

18. Next, Kent contends Trial Counsel failed to move for a judgment of

acquittal for the Continuous Sexual Abuse of a Child charge. Focusing on the

recurring access element, at oral argument, Kent asserted there was no testimony

establishing Kent’s recurring access to the victim; and if Trial Counsel moved for

acquittal, there was a reasonable probability that the motion would have been

granted.

19. The Delaware Supreme Court in resolving Kent’s direct appeal

reviewed the sufficiency of the evidence under a plain error standard and found no

error. Even under a less deferential standard of review, the State offered testimony

that: Kent sexually abused the victim “more than three times” at multiple different

locations, including her aunt’s house and her own residence;49 Hepner testified that

Kent lived with the victim’s aunt, prior to him moving in with Hepner and her

48 Green v. State, 238 A.3d 160, 185 (Del. 2020) (citing Strickland, 466 U.S. at 687) (“[T]here is no reason for a court deciding an ineffective assistance claim to … address both components of the inquiry if the defendant makes an insufficient showing on one”). 49 D.I. 78 at 11-12.

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family;50 the victim slept at the aunt’s house while Kent was living with the aunt;51

and Hepner and Kent have remained close friends since childhood52.

20. The decision whether to file a given motion is a strategic decision and

a matter of professional judgment. Such a decision will be upheld if it is

reasonable.53 A defendant cannot demonstrate prejudice by trial counsel’s failure to

file any motion if that motion were likely to fail.54

21. Here, there was evidence to support recurring access, it was for the jury

to weigh the evidence and credibility of the witnesses. Therefore, Kent’s argument

on this claim fails to meet the second prong of Strickland because he has not

demonstrated that, had Trial Counsel moved, it is reasonably probable the trial judge

would have granted such a motion. Accordingly, Kent’s instant Motion is DENIED.

IT IS SO ORDERED.

/s/ Patricia A. Winston Patricia A. Winston, Judge

50 Id. 51 Id. 52 A174:7-A175:3. 53 State v. Potts, 2023 WL 5664213, at *6 (Del. Super. Aug. 31, 2023) (citing Pennewell v. State, 2005 WL 578444, at *1 (Del. Jan. 26, 2005)). 54 State v. Potts, 2023 WL 5664213, at *6 (Del. Super. Aug. 31, 2023) (citing Poteat v. State, 2007 WL 2309983, at *1 (Del. Aug. 14, 2007); Bratcher v. State, 2008 WL 2475741, at *1 (Del. June 20, 2008)), aff’d sub nom., Wal-Ikram v. State, 314 A.3d 1077 (Del. 2024).

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Original to Prothonotary (Criminal Division) Cc: Amanda Buckworth, Esq., Department of Justice Patrick Collins, Esq. John Edinger, Esq. Donovan Kent, SBI No. 00746136