State v. McCary

• Court: Superior Court of Delaware
• Decided: July 20, 2022
• Docket: 2005003004
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) Case ID No.: 2005003004 ) ) CAMERON MCCARY, ) ) Defendant. )

ORDER

Submitted: May 24, 2022 Decided: July 20, 2022

Upon Consideration of Defendant’s Motion for Postconviction Relief, DENIED.

Erica Flaschner, Deputy Attorney General, Department of Justice, Wilmington, Delaware. Attorney for the State.

Cameron McCary. Pro se.

MEDINILLA, J. AND NOW TO WIT, this 20th day of July, 2022, upon consideration of

Defendant Cameron McCary (“Defendant”)’s Motion for Postconviction Relief, the

sentence imposed upon Defendant, and the record in this case, it appears to the Court

that:

Factual and Procedural History

1. In May of 2020, the Delaware State Police began surveillance of the

Crown Motel on N. Dupont Highway for drug dealing activity.1 It was learned that

Defendant was staying at the motel and was serving Level II probation.2 The Crown

Motel was not Defendant’s residence listed with the Probation Office. 3 Through

continued observations of Defendant, the police observed what they believed to be

drug dealing activities. 4

2. Probation officers obtained permission to conduct an Administrative

Search of Defendant’s motel room, wherein Defendant was present during the

search.5 The probation officers recovered multiple illicit drugs, prescription

medications, drug paraphernalia, $1,715 in cash, and a loaded 9mm handgun. 6

3. On August 24, 2020, a grand jury indicted Defendant for six counts of

Drug Dealing, three counts of Drug Possession, Possession of a Firearm During the

1 State’s Response, D.I. 56, at 1 [hereinafter State’s First Response]. 2 Id. at 2. 3 Id. 4 Id. 5 Id. at 3. 6 Id. 2 Commission of a Felony (“PFDCF”), Possession of a Firearm by a Person Prohibited

(“PFBPP”), Possession of Ammunition by a Person Prohibited (“PABPP”), and

Possession of Drug Paraphernalia. 7

4. Defendant filed a Motion to Suppress on October 21, 2020.8 The

suppression hearing was conducted over the span of several days on May 6, June 2,

and June 10 of 2021. 9 The Superior Court reserved decision, eventually denying the

motion on August 13, 2021.10

5. On August 16, 2021, after an appropriate colloquy, Defendant pled

guilty to PFDCF and Drug Dealing Heroin Tier 2. 11 The State entered a nolle

prosequi on the remaining charges and agreed to recommend the minimum

mandatory sentence of three years incarceration. The Court followed the

recommendation and Defendant was sentenced immediately to a minimum

mandatory sentence of three years for the PFDCF charge12 and fifteen years at Level

V, suspended for 18 months at Level III for the Drug Dealing Tier 2 charge.13

7 Indictment, True Bill Filed. No. 67, D.I. 5. 8 See Motion to Suppress Filed, D.I. 7. A reindictment was filed on April 12, 2021, with amendments for plea purposes. See Reindictment - True Bill Filed. No. 79, D.I. 25. 9 See Suppression Hearing Held Before Judge Adams, D.I. 36; Suppression Hearing Held Before Judge Adams, D.I. 39. 10 See Motion to Suppress Denied, D.I. 45. 11 See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47. 12 See 11 Del. C. § 1447(A)(b) (“A person convicted under subsection (a) of this section shall receive a minimum sentence of 3 years at Level V….”). 13 See Sentence: Approved Corrected ASOP Order Signed and Filed, D.I. 49. 3 6. On October 22, 2021, Defendant filed this pro se Motion for

Postconviction Relief claiming ineffective assistance of counsel. 14 He raises five

separate claims that relate to his suppression hearing. First, he contends his

attorney’s failed to argue “illegal arrest.” 15 Second, that his attorney failed to make

a “stalking horse” argument as to the police’s use of probation officers. 16 Third, that

his attorney failed to compel certain probation officers who conducted the “phone

conference” to testify at the hearing. 17 Fourth, that he “was arrested without

probable cause which was pursued by an administrative warrant by probation[,]”18

and lastly, that his attorney failed to file a motion for reconsideration/reargument.19

7. Defense counsel filed an Affidavit of Response on March 8, 2022. 20 A

second Affidavit was filed on May 23, 2022.21 The State responded on March 14,

2022, 22 and filed a supplemental response on May 24, 2022.23 Defendant did not

file a reply. This matter is now ripe for decision.

14 See Motion for Postconviction Relief, D.I. 52 [hereinafter Rule 61 Motion]. 15 Id. at 3. 16 Id. 17 Id. at 4. 18 Id. 19 Id. at 3. 20 See Affidavit of Response, D.I. 55 [hereinafter First Affidavit]. 21 See Second Affidavit of Response, D.I. 59 [hereinafter Second Affidavit]. The supplement was filed at the direction of the Court. 22 See State’s Response, D.I. 56 [hereinafter State’s First Response]. 23 See State’s Response, D.I. 58 [hereinafter State’s Second Response]. The supplement was filed at the direction of the Court. 4 Standard of Review

8. To succeed on his ineffective assistance of counsel claims, Defendant

must demonstrate: (1) “that trial counsel’s performance was objectively

unreasonable” 24 and (2) that if counsel was deficient, that there was a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”25 Mere allegations of ineffectiveness are not enough.26

Counsel “may not be faulted for reasonable miscalculation or lack of foresight or for

failing to prepare for what appear to be remote possibilities.” 27 There is a strong

presumption that a defense counsel’s conduct constituted sound trial strategy28 and

Defendant must make and substantiate concrete allegations that overcome this strong

presumption that counsel’s conduct fell within a wide range of reasonable

professional assistance. 29 Finally, a reviewing court must “avoid peering through

the lens of hindsight.” 30

24 Sykes v. State, 147 A.3d 201, 211 (Del. 2015) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)). 25 Strickland, 466 U.S. at 694. 26 Younger v. State, 580 A.2d 552, 556 (Del. 1990). 27 State v. Finn, 2012 WL 1980566, at *4 (Del. Super. May 23, 2012) (citing Harrington v. Richter, 562 U.S. 86, 102–10 (2011)). 28 Strickland, 466 U.S. at 694. 29 See Salih v. State, 962 A.2d 257, 2008 WL 4762323, at *1 (Del. Oct. 31, 2008) (Table); Albury v. State, 551 A.2d 53, 59 (Del. 1988). 30 State v. Wright, 653 A.2d 288, 295 (Del. Super. 1994). 5 Discussion

9. Superior Court Criminal Rule 61 is the exclusive remedy for persons

“in custody under a sentence of this court seeking to set aside the judgment of

conviction. . . .”31 This Court “must first consider the procedural requirements of

Rule 61 before addressing any substantive issues.” 32 The procedural “bars” of Rule

61 are: timeliness, 33 repetitiveness,34 procedural default, 35 and former adjudication.36

The contentions in a Rule 61 motion must be considered on a “claim-by-claim”

basis. 37

10. Defendant is not procedurally barred as this is Defendant’s first motion

for postconviction relief and was timely filed.38 His claims will therefore be

addressed.

31 Super. Ct. Crim. R. 61(a)(1). See, e.g., Warnick v. State, 158 A.3d 884, 2017 WL 1056130, at *1 & n.5 (Del. Mar. 30, 2017) (Table) (citing Miller v. State, 157 A.3d 190, 2017 WL 747758 (Del. Feb. 24, 2017) (Table)) (denying Rule 35(a) motion attacking sufficiency of evidence in indictment to which defendant pleaded guilty; defendant’s “challenge [of] his indictment is outside the scope of Rule 35(a)” and was limited to Rule 61). 32 Bradley v. State, 135 A.3d 748, 756–57 (Del. 2016) (citing Younger, 580 A.2d at 554); see also Super. Ct. Crim. R. 61(i) (setting forth Rule 61’s procedural bars). 33 Super. Ct. Crim. R. 61(i)(1). See, e.g., Evick v. State, 158 A.3d 878, (2017 WL 1020456, at *1 (Del. Mar. 15, 2017) (Table) (affirming denial of Rule 61 motion as untimely when filed more than two years after conviction became final). 34 Super. Ct. Crim. R. 61(i)(2). See, e.g., Walker v. State, 154 A.3d 1167, 2017 WL 443724, at *1–2 (Del. Jan. 17, 2017) (Table) (denying defendant’s third postconviction relief motion as repetitive; “Rule 61 provides a limited window for judicial review, especially upon a repetitive motion.”). 35 Super. Ct. Crim. R. 61(i)(3). 36 Super. Ct. Crim. R. 61(i)(4). 37 State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017) (citations omitted) (“Rule 61 analysis should proceed claim-by-claim, as indicated by the language of the rule.”). 38 See Super. Ct. Crim. R. 61(i)(1). 6 11. Our Supreme Court has repeatedly held that ‘“a voluntary guilty plea

constitutes a waiver of any alleged errors or defects [that occurred] prior to the entry

of the plea.”’39 On August 16, 2021, this Court conducted an appropriate colloquy

and determined Defendant entered into the plea knowingly, intelligently and

voluntarily, with an acknowledgement that he was satisfied that his attorney had

done what he could reasonably do for him.40 Accordingly, any defects in the

suppression hearing or corresponding motions were waived when Defendant

knowingly, intelligently, and voluntarily pled guilty.41 Even if the Court considered

the five grounds asserted, Defendant fails to establish a basis for relief.

12. First, as to the allegation that his attorney failed to argue that Defendant

was illegally arrested, Defendant is incorrect. Counsel did, in fact, argue that

Defendant was arrested and not just stopped. 42 It is clear in Defendant’s Reply to

his Motion to Suppress that defense counsel argued that Defendant was arrested, not

stopped, prior to the search of his hotel room, which resulted in an illegal seizure

39 Campbell v. State, 274 A.3d 286, 2022 WL 678001, at *2 (Del. Mar. 8, 2022) (Table) (quoting Benner v. State, 2007 WL 4215005, at *1 (Del. Nov. 30, 2017)); see also Miller v. State, 840 A.2d 1229, 1232 (Del. 2003) (“Finally, to the extent Miller bases his claims on alleged errors or defects preceding the entry of his plea, his voluntary guilty plea constitutes a waiver of any such claims.”) (citing Downer v. State, 543 A.2d 309, 312–13 (Del. 1988)). 40 See Final Case Review: Defendant Pled Guilty/Sentenced, D.I. 47 (Plea Colloquy conducted). 41 See Cooper v. State, 954 A.2d 909, 2008 WL 2410404, at *1 (Del. June 16, 2018) (Table) (declining to consider ineffective assistance of counsel claims raised in movant’s motion for postconviction relief because they were “not presented to the Superior Court in the first instance.”). 42 See First Affidavit, at 1; State’s First Response, at 4. 7 and the recovered evidence should be suppressed.43 Accordingly, Defendant’s claim

that his attorney failed to make this argument is patently wrong.

13. Defendant’s second allegation that counsel was ineffective for failing

to raise the “stalking horse” argument at the suppression hearing is equally without

merit. The Court accepts defense counsel’s explanation that the argument was not

raised because “[he] did not believe this was a viable basis for relief.” 44 There is a

strong presumption that a defense counsel’s strategy is reasonable45 and mere

allegations of defective representation are insufficient to overcome this

presumption. 46 To second guess such strategies is improper. 47 Defendant fails to

establish how his attorney’s decision fell below an objective standard of

reasonableness or that such an argument would have resulted in a different

outcome.48 Therefore, this argument fails.

14. Defendant’s third assertion is that his attorney was ineffective where he

failed to file a motion for reargument.49 The Court accepts Defense counsel’s

explanation that such a motion was not filed because “[he] did not believe that it

43 See Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I. 17, at 1–3. 44 First Affidavit, at 2. 45 Strickland, 466 U.S. at 694. 46 See Younger, 580 A.2d at 556. 47 Strickland, 466 U.S. at 689 (“A fair assessment of attorney performance requires that every effort be made to 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.”). 48 See id. at 694. 49 Rule 61 Motion, at 3. 8 would impact the ruling, or even that it was an appropriate basis for a motion for

reargument.”50 He is correct.

15. Under Delaware Superior Court Civil Rule 59(e)51 a motion for

reargument will be granted if the Court has “overlooked a controlling precedent or

legal principles, or the court has misapprehended the law or facts such as would have

changed the outcome of the underlying decision.”52 Further, “[a] motion for

reargument is not a device for raising new arguments.”53 The moving party has the

burden of demonstrating “newly discovered evidence, a change of law, or manifest

injustice.” 54 There was no basis for filing a motion for reargument here. Moreover,

Defendant has failed to establish that had his attorney filed for reargument, the

Motion to Suppress would have been granted.55 Therefore, this argument fails.

16. Defendant’s fourth claim is that he was arrested without probable cause

and his arrest is therefore illegal.56 Not only does he fail to articulate the basis of an

ineffective assistance of counsel claim, the record establishes that his counsel did

50 First Affidavit, at 2. 51 Under Super. Ct. Crim. R. 57(d), where no rule is provided “the court shall regulate its practice in accordance with the applicable Superior Court civil rule or in any lawful manner not inconsistent with these rules or the rules of the Supreme Court.” 52 See, e.g., Tibco Software Inc., v. Nthrive Revenue Systems, LLC, 2020 WL 86829, at *1 (Del. Super. Jan. 6, 2020) (quoting Bd. of Managers of Del. Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003)). 53 Bd. of Managers of Del. Criminal Justice Info. Sys., 2003 WL 1579170, at *1. 54 E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995). 55 See Strickland, 466 U.S. at 694. 56 Rule 61 Motion, at 4. 9 raise this issue at the suppression hearing.57 The issue of lack of probable cause was

raised in both the Motion to Suppress 58 and the Reply.59 This argument was formerly

adjudicated and is thus barred.60

17. Lastly, Defendant claims his attorney was ineffective where he failed

to compel the appearance of “the actual probation officers who conducted the phone

conference” [procedurally required for their administrative searches]61 and that these

“officers were required to testify.”62 He is wrong.

18. This Court agrees with both defense counsel and the State that there is

no such requirement under Probation and Parole Procedure 7.19. Moreover, this

Court accepts defense counsel’s explanation that he was aware the officer was not

going to be present at the suppression hearing and “made a strategic decision to not

subpoena him . . . because [he] believed it would be harmful to [Defendant’s]

argument . . . by providing the State an opportunity to ‘explain’ inconsistencies . . .

.” 63 As noted above, there is a strong presumption that a defense counsel’s strategy

is reasonable 64 and mere allegations of defective representation are insufficient to

57 See Second Affidavit, at 1; State’s Second Response, at 2. 58 See Motion to Suppress, D.I. 7, at 4–8. 59 See generally Defendant’s Reply to State’s Response to Defendant’s Motion to Suppress, D.I. 17. 60 See Super. Ct. Crim. R. 61(i)(4). 61 See Probation and Parole Procedure, 7.19. 62 Rule 61 Motion, at 4. 63 Second Affidavit, at 2. 64 Strickland, 466 U.S. at 694. 10 overcome this presumption.65 Defendant has also failed to establish that such a

decision was unreasonable or that the outcome would have been different had the

officer testified at the suppression hearing. 66 Therefore, this claim fails.

Conclusion

19. For the foregoing reasons, the Court finds that Defendant fails to meet

his burden to demonstrate objective unreasonableness and prejudice as required

under Strickland. Defendant’s Motion for Postconviction Relief is DENIED.

/s/ Vivian L. Medinilla Vivian L. Medinilla Judge

oc: Prothonotary cc: Defendant Elliot M. Margules, Esquire

65 See Younger, 580 A.2d at 556. 66 See Strickland, 466 U.S. at 694. 11