State v. Owens

• Court: Superior Court of Delaware
• Decided: December 21, 2021
• Docket: 1312003447B
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) I.D. No. 1312003447B ) RODERICK OWENS, ) ) Defendant. )

Submitted: September 30, 2021 Decided: December 21, 2021

Upon Consideration of Defendant’s Motion for Post-Conviction Relief, DENIED.

MEMORANDUM OPINION

Jenna R. Milecki, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, Wilmington, Delaware. Attorney for the State of Delaware.

Brian J. Chapman, Esquire, LAW OFFICE OF BRIAN J. CHAPMAN, Newark, Delaware. Attorney for Defendant Roderick Owens.

BUTLER, R.J. Defendant Roderick Owens was convicted on felony weapons charges and

then sentenced as a habitual offender. He now seeks post-conviction relief, claiming

his lawyer (“Trial Counsel”) represented him ineffectively. The Court finds that his

allegations are not supported by the record, which demonstrates that Trial Counsel

performed reasonably under difficult circumstances. Accordingly, Mr. Owens’s

Criminal Rule 61 motion will be denied.

BACKGROUND1

A. The Direct Proceedings

1. The Arrest and Charges.

Eight years ago, Mr. Owens was seated on the steps of a boarded-up house

emblazoned with a “No Loitering” sign. Some days before, the property owner, who

was not living in the house, reported vagrant activity on the property. Two officers

who knew about the reports and were investigating recent shootings in the

neighborhood saw Mr. Owens as they drove by.

As the police car approached, Mr. Owens bladed his stance. He adjusted his

waistband and grasped a rectangular object at his hip. He was staring in the officers’

eyes as they parked. Then, he ran. He sprinted for blocks and through an alley as

1 The Court has drawn its factual background from the appendix (hereinafter “A[x]”) attached to Mr. Owens’s amended Rule 61 motion as well as the larger criminal file compiled by the court over the course of Mr. Owens’s direct and collateral proceedings. Where appropriate, the Court will cite to specific documents.

2 the original officers and additional reinforcements pursued him on foot and ordered

him to stop. He kept running and ignoring the police until a taser ended the race.

With the police in hot pursuit, Mr. Owens tossed a loaded handgun onto the

sidewalk. Mr. Owens is a convicted felon, making his possession of a handgun

illegal. A New Castle County grand jury accordingly indicted him on charges of

Possession of a Firearm by a Person Prohibited (“PFBPP”), Possession of

Ammunition by a Person Prohibited (“PABPP”), Carrying a Concealed Deadly

Weapon (“CCDW”) and Resisting Arrest.

2. The Defense.

Mr. Owens’s case was assigned to Trial Counsel, who successfully moved to

sever the person prohibited charges (the “A case”) from the CCDW and Resisting

Arrest charges (the “B case”). Trial Counsel then moved to suppress the firearm—

an essential ingredient of both cases.

a. The Suppression Motion.

The defense moved to suppress the gun as the fruit of an illegal seizure. But

the reports of loitering at the property and Mr. Owens’s furtive movements upon

seeing the police created a reasonable suspicion that he may be concealing a weapon.

A superficial Terry frisk would have revealed the gun. Tossing the gun brought into

3 play other issues concerning abandonment of the property and standing to challenge

its seizure.2

At the suppression hearing, Trial Counsel first tried suggesting that the

officer’s account had been fabricated. When that effort fizzled, he attempted to

argue (i) Mr. Owens was “seized” without probable cause from the moment the

police arrived—i.e., even before they suspected Mr. Owens of possessing a gun—

because their uniforms displayed a “show of authority;” and (ii) even if the police

had reasonable suspicion to believe Mr. Owens had been loitering, it was dispelled,

and the encounter should have been over, when Mr. Owens ran away.

After hearing the evidence, the suppression court denied the motion. The

court did not base its ruling exclusively on the condition of the residence or the

loitering accusations. Instead, the court held that, in the totality of the circumstances,

the officers had reasonable suspicion to believe Mr. Owens possessed a gun and did

not seize him until he defied the officers’ commands that he stop:

[T]his Court finds that Defendant was not seized until [the officer] ordered him to stop . . . . [The officer] had reasonable articulable suspicion to stop Defendant. Defendant was sitting at a vacant home with boarded windows bearing a “No Loitering” sign. [The officer] was aware that the owner had reported people had been loitering at the home. The home was in a high crime area where [the officer] had received a call of gunshots just a few days prior to the incident. Before [the officer] could approach Defendant, Defendant stood up and adjusted his waistband and fled while grasping a rectangular object at his waistband. [The officer] was familiar with these types of

2 See, e.g., Jackson v. State, 990 A.2d 1281, 1288–89 (Del. 2009); cf. Jones v. State, 28 A.2d 856, 861–64 (Del. 1999).

4 movements as being movements of an armed individual. Based on the totality of these circumstances, [the officer] had reasonable articulable suspicion to seize the Defendant.3

The suppression court’s written decision does not leave the impression that the ruling

would have changed had Trial Counsel done something different.

b. The Pre-Trial Plea Negotiations.

Mr. Owens had other legal difficulties beyond a weak suppression case. He

previously had been convicted of three separate felonies, including two “violent”

ones.4 PFBPP is itself defined as a “violent felony.” 5 As a consequence, a

conviction on PFBPP would expose Mr. Owens to two different, both lengthy

sentencing regimes.

First, by operation of 11 Del. C. § 1448(e)(1)(c) and his two prior “violent”

felony convictions, the PFBPP conviction would subject him to a mandatory

sentence of 10 years.6 Second, those same prior felony convictions (plus an

additional one) qualified Mr. Owens for habitual offender sentencing under 11 Del.

3 A44–45 (Suppression Op.) (emphasis added). 4 One of the prior “violent felonies” Mr. Owens had committed was a drug- possession-within-300-feet-offense that no longer was considered a violent felony at the time of Mr. Owen’s person prohibited convictions. See generally Butcher v. State, 171 A.3d 537, 540 (Del. 2017) (noting 2011 repeal). This may have mattered for person prohibited enhancements, depending on the state of the law in 2014, but was irrelevant to the habitual enhancements applied here. Because Mr. Owens was convicted of three prior felonies of any kind, the PFBPP conviction triggered the penalty range applicable to his A case sentences. See 11 Del. C. § 4214(a) (2012). 5 See 11 Del. C. § 4201(c) (2020). 6 See 11 Del. C. § 1448(e)(1)(c), (3).

5 C. § 4214. Upon the State’s motion, a habitual sentence would draw Mr. Owens

anywhere from 15 years (the habitual minimum mandatory for Class C felonies) to

life (the habitual maximum for any fourth felony conviction). 7 These options gave

the State enormous leverage and conversely confined Trial Counsel to convincing

the prosecutor either to knock the charges down or offer a non-habitual 10 years.

Worse, even an acquittal at trial in the A case would not automatically clear Mr.

Owens’s exposure in the B case, which also qualified for habitual offender

sentencing.

The State made an early offer to resolve both cases with a recommendation of

15 years at Level V. Mr. Owens declined, opting instead to file the ill-fated

suppression motion. Even after its filing, the State lowered its offer to 10 years

conditioned on Mr. Owens withdrawing the motion. We know that did not happen:

Mr. Owens repudiated the offer and proceeded to suppression. While awaiting the

suppression ruling, the A case had its final case review, where the following dialogue

occurred:

TRIAL COUNSEL: Mr. Owens, who[se] also incarcerated, will be set for trial . . . pending [a] suppression issue . . . .

THE COURT: What has Mr. Owens been offered?

7 See 11 Del. C. § 4214(a) (2012). The 2016 revisions to the habitual offender statute, which are effective today, would have exposed Mr. Owens to the same penalty range. See 11 Del. C. § 4214(c) (2020).

6 TRIAL COUNSEL: The minimum mandatory. Right now, the last offer was . . . ten years . . . . I have . . . had discussions with [the State], but there has been nothing better than that, which [was] the offer prior to the suppression hearing . . . .

THE COURT: I’ll need to have a copy of that plea offer.

TRIAL COUNSEL: I actually do not know if I have a copy of the latest offer. I understand [the prosecutor] is not here currently either . . . .

THE COURT: Based on your representation, I don’t think I need to speak with Mr. Owens. I can understand why the plea is being rejected at this time.8

As the Court understood, there would have been no reason to discuss pleas or

colloquy old offers while the gun’s suppression was still a (slim) possibility and a

10-year mandatory hung in the balance.

c. The Post-Trial Plea Negotiations.

When Mr. Owens elected to proceed with suppression, the State rescinded its

10-year offer in favor of seeking both a guilty verdict and habitual sentencing.9

Faced with the same facts at trial as it had at suppression, the defense renewed its

attacks on the officer’s credibility. Trial Counsel attempted to extract

inconsistencies from the officer’s incident report to demonstrate the police wrongly

arrested Mr. Owens. Ultimately, the jury was not persuaded. It convicted him on

both charges in the A case.

8 A152–53 (Final Case Rev. Hr’g Tr.). 9 See A147 (E-mail from David Holloway, Deputy Att’y Gen., Del. Dep’t of J., to Ross Flockerzie, Assistant Pub. Def., Off. of Def. Servs. (Sept. 9, 2014)) (“[Mr. Owens] is Habit A, which means he’s facing 15-life if convicted.”).

7 In light of those convictions, and the State’s right to declare Mr. Owens a

habitual offender, Trial Counsel pushed for a nolle prosequi disposition of the B

case. The State refused, offering instead to drop the Resisting Arrest charge in

exchange for a non-habitual CCDW guilty plea. 10 Trial Counsel observed his duty

to relay this offer to Mr. Owens, but opined that Mr. Owens likely would reject it:

Mr. Owens is facing 15 to life . . . . If the offer is that he can plead to CCDW with open sentencing and the State will drop a misdemeanor resisting charge, then there’s not any incentive to resolve it. It makes sense to [nol. pros.] these charges. [The State] is getting a minimum of 15 years . . . .

I will certainly convey the offer to my client as I am required to do. I’m not inclined[,] however, to believe that my client will want to accept it. 11

Trial Counsel’s prediction was accurate. As of the A case’s sentencing, the parties

still planned to try the B case.12

d. The Sentencing.

The State petitioned to declare Mr. Owens a habitual offender. Given Mr.

Owens’s predicate felonies, Trial Counsel had no good faith basis to oppose the

petition. The sentencing court granted the motion and the State asked the court to

impose 20 years. Trial Counsel countered with 15 years, the minimum available

under the habitual offender statute, emphasizing the harmlessness of possessing a

10 See A142 (E-mail from David Holloway, Deputy Att’y Gen., Del. Dep’t of J., to Ross Flockerzie, Assistant Pub. Def., Off. of Def. Servs. (Dec. 2, 2014)). 11 Id. (E-mail from Ross Flockerzie, Assistant Pub. Def., Off. of Def. Servs., to David Holloway, Deputy Att’y Gen., Del. Dep’t of J. (Dec. 4, 2014)) 12 A76 (Sentencing Hr’g Tr. at 9:17–22).

8 gun vis-à-vis using it and the inequity of giving Mr. Owens generations of time

despite not hurting anyone. Trial Counsel also explained that Mr. Owens would not

make a statement not because he lacked remorse, but rather, because the B case was

still pending and Mr. Owens could jeopardize his defenses or an appeal by

commenting on his guilt.13 At the end of Trial Counsel’s presentation, the court

asked: “Anything else?” 14 The defense said no.15

The court sentenced Mr. Owens to 19 years at Level V. The sentence

comprised: (i) a mandatory 15 years at Level V; and (ii) a discretionary 8 years at

Level V suspended after 4 years for decaying levels of probation. 16 The court,

however, retained jurisdiction to modify or eliminate the discretionary tail of the

sentence “after several years ha[d] passed.” 17 Additionally, after Mr. Owens told

the court he graduated from high school,18 the court tailored its order to allow for his

early release from probation if he submitted proof of obtaining some college credit.19

Having imposed the 15-year minimum mandatory, the court had discretion to

stop there. Its decision to impose an additional four years anyway appears to have

13 See id. (Sentencing Hr’g Tr. at 11:13–20). 14 Id. (Sentencing Hr’g Tr. at 12:9). 15 Id. (Sentencing Hr’g Tr. at 12:10). 16 A79–80 (Sentencing Or.). 17 A81 (Sentencing Or.) 18 A77 (Sentencing Hr’g Tr. at 15:21–23, 16:1–2). 19 A81 (Sentencing Or.).

9 been based predominantly on the fact that the gun was concealed 20 and a PSI report

spanning 35 pages of charging history chronicling multiple crimes and probation

violations and which identified juvenile offenses Mr. Owens started committing at

11 years old. Indeed, much of Mr. Owens’s record reflected conduct of the very

type for which he had been indicted and convicted here. Despite those aggravating

factors, the court believed its sentence for the A case was globally sufficient and so

encouraged the parties to resolve the B case “reasonably.” 21 Heeding that

suggestion, the State eventually dropped the B case.

e. The Appeal.

Mr. Owens appealed to the Delaware Supreme Court. The sole issue he

presented on direct appeal was whether the police had reasonable suspicion to

question his presence at the home.22 On March 4, 2016, the Supreme Court

summarily affirmed Mr. Owens’s convictions and sentence.23

B. This Motion

On February 27, 2017, Mr. Owens filed a pro se Criminal Rule 61 motion for

post-conviction relief. On March 7, 2017, the Court granted Mr. Owens’s request

for appointment of counsel. Due to procedural and administrative misadventures,

20 A81 (Sentencing Or.). 21 A77 (Sentencing Hr’g Tr. at 15:2–6). 22 A92–96 (App. Br.). 23 See generally Owens v. State, 2016 WL 859351 (Del. Mar. 4, 2016). The Supreme Court’s mandate was issued on March 17, 2016. See A98.

10 including motions to withdraw, judicial reassignments, the COVID-19 pandemic,

and Mr. Owens’s repeated deliveries of new claims via pro se letters, the instant

(amended) motion was not submitted by Mr. Owens’s current counsel until

September 1, 2021. The State opposes the motion and it is now ripe for decision.

C. The Claims for Relief.

Mr. Owens brings one claim—ineffective assistance of Trial Counsel—but

divides it into a number of categories. 24 Trial Counsel has filed an affidavit in which

he denies the allegations. For clarity, the Court has summarized Mr. Owens’s

allegations and Trial Counsel’s responses by subject matter below.

1. The Plea Claim.

Mr. Owens alleges Trial Counsel was ineffective because Trial Counsel did

not communicate any of the State’s plea offers to him.

Trial Counsel denies this. He states that he communicated the first (15-year)

plea offer to Mr. Owens after the first case review as the defense met and conferred

on whether to file a suppression motion. 25 He also states that he communicated the

second (10-year) plea offer to Mr. Owens at a meeting between the two that occurred

24 Mr. Owens’s post-conviction counsel has represented that, after reviewing all Mr. Owens’s pro se claims, the only non-frivolous ones have been argued in this motion. So the Court will not consider any claims Mr. Owens advanced on his own. See, e.g., Del. Super. Ct. Crim. R. 47; Pringle v. State, 2013 WL 1087633, at *4 (Del. Mar. 13, 2013). 25 A133 (Flockerzie Aff.).

11 before the suppression hearing. 26 As support for these statements, Trial Counsel

cites meeting dates, his written plea negotiations with the State, his representations

to the Court at final case review, and his ethical obligation to notify his clients of

plea offers. Given the case’s serious sentencing consequences, Trial Counsel insists

that his duty to communicate plea offers was discharged:

I cannot think of a circumstance where I have ever not met with a client [like Mr. Owens] at case review where the client was present . . . . There is simply no way that I would have failed to convey a plea offer to [him] . . . . I cannot envision any scenario where I would have made [a] representation to the Court [that Mr. Owens rejected a plea] and not informed my client of the offer . . . . [Based on the plea negotiation messages to the State,] I understood clearly that I ha[d] a professional obligation to convey plea offers to [him]. 27

2. The Suppression Claims.

Mr. Owens alleges Trial Counsel was ineffective because he failed to

investigate three witnesses who, according to Mr. Owens, would have testified that

the residence was not abandoned at the time of his arrest. Relatedly, Mr. Owens

alleges Trial Counsel’s failure to call these witnesses allowed the officer’s “false”

testimony to go unrebutted.

Trial Counsel states that he did not call the three witnesses because he did not

think their proffered testimony about the condition of the residence would be

relevant to the question of whether the police seized Mr. Owens lawfully.28 That

26 A134, 136–38 (Flockerzie Aff.). 27 A134, 138 (Flockerzie Aff.). 28 A135 (Flockerzie Aff.).

12 aside, he states that he did investigate, and receive a letter from, the property owner.

The owner told Trial Counsel that she “never reside[s] at the property” and did not

call the police on Mr. Owens. 29

3. The Critical Stage Claim.

Mr. Owens alleges Trial Counsel was ineffective because he failed to produce

him for final case review on the A case, which he says is a critical stage in the

proceedings and during which he had a right to be present in the courtroom. The

Court will discuss this Claim in more detail below.

4. The Allocution Claim.

Mr. Owens alleges Trial Counsel was ineffective because Mr. Owens was

denied an opportunity to allocute during sentencing. We will discuss the allocution

argument below.

5. The Neglect Claims.

Mr. Owens alleges Trial Counsel was ineffective because Trial Counsel did

not meet with him in any meaningful way. Mr. Owens says Trial Counsel’s neglect

resulted in him feeling unprepared and uninformed and in a lacking mitigation at

29 A145 (Letter from Augusta Collier, Prop. Owner, to Ross Flockerzie, Assistant Pub. Def., Off. of Def. Servs. (July 22, 2016)).

13 Trial Counsel states that he met with Mr. Owens at least four times before

trial: (i) by video shortly after his arraignment; (ii) on the day of first case review;

(iii) before the suppression hearing; and (iv) on the day of final case review. 30 Each

time, Trial Counsel emphasizes, he discussed the State’s arguments, the evidence

against Mr. Owens, the plea offers (where applicable), the viability of the

suppression motion (where applicable), and trial. 31

6. The Cumulative Error Claim.

Finally, Mr. Owens argues, even if each of Trial Counsel’s errors is not by

itself prejudicial, their cumulative impact shows the direct proceedings were unfair.

This argument will be discussed in more detail below.

STANDARD OF REVIEW

A defendant may move for post-conviction relief under Criminal Rule 61.32

Rule 61 ensures conviction integrity. 33 It provides a “collateral remedy” capable of

overturning “judgments that otherwise have become final.” 34 In other words, Rule

61 “balances” the law’s interest in conviction finality “against . . . the important role

of the courts in preventing injustice.”35 Although the presence of collateral review

30 A135–37 (Flockerzie Aff.). 31 Id. 32 Del. Super. Ct. Crim. R. 61. 33 See, e.g., Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (“Rule 61 is intended to correct errors in the trial process . . . .”). 34 Flamer v. State, 585 A.2d 736, 745 (Del. 1990) (emphasis added). 35 Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010).

14 reintroduces uncertainty into completed criminal proceedings, the marginal

inconvenience to valid convictions is outweighed by the possibility that

“extraordinary case[s]” of innocence or egregious error would otherwise go

unrelieved. 36

Judgments are presumed valid.37 Rule 61 reflects that principle. Post-

conviction review starts from the premise that the challenged conviction is supported

by a “sufficient factual and legal basis.”38 Most are.39 So Rule 61 shifts to the

defendant the burden of demonstrating otherwise.40

In attacking a conviction, defendants must contend with a “presumption of

regularity.” 41 “The presumption of regularity attaches to all final judgments . . . and

implies those judgments have been done rightly until contrary evidence appears.”42

Contrary but conclusory, contradicted, or unclear allegations are not entitled to truth:

36 Purnell v. State, 254 A.3d 1053, 1123 (Del. 2021) (internal quotation marks omitted). 37 Restatement (First) of Judgments § 4 (1952); see also id. § 11 (“Where in a subsequent judicial proceeding . . . [a] party sets up the invalidity of the judgment, he is collaterally attacking the judgment.” (emphasis added)). 38 Del. Super. Ct. Crim. R. 61(a)(1). 39 See Purnell, 254 A.3d at 1122–23 (“We observe that legitimate claims of actual innocence are exceedingly rare . . . . Because they are so rare, [they] pose[] no threat to our State’s interest in finality.”). 40 Del. Super. Ct. Crim. R. 61(a)(1); see, e.g., Dorsey v. State, 2007 WL 4965637, at *1–2 (Del. Nov. 6, 2007). 41 Parke v. Raley, 506 U.S. 20, 29 (1992); accord Xenidis v. State, 2020 WL 1274624, at *2 (Del. Mar. 17, 2020). 42 Xenidis, 2020 WL 1274624, at *2.

15 On collateral attack, a silent record supports the judgment; the state receives the presumption of regularity and all reasonable inferences . . . . [G]aps and ambiguities in the record [do not] count against the state. Judgments are presumed valid . . . and one who seeks collateral relief bears a heavy burden.43

A post-conviction record is archival and so the Court is limited to making

“historical” fact determinations. 44 Reviewing from that lens, the Court evaluates the

credibility of the defendant’s instant allegations by comparing them to the original

record.45 If, based on the record and the inferences drawn therefrom, the defendant’s

claims lack “colorable merit,” then the motion will be “summarily dismissed.”46

ANALYSIS

A Rule 61 analysis proceeds in two steps. First, the Court must determine

whether the motion clears Rule 61’s procedural bars. 47 If so, the Court next reviews

43 Higgason v. Clark, 984 F.3d 203, 208 (7th Cir. 1993) (citations omitted); accord Meyers v. Gillis, 93 F.3d 1147, 1151 (3d Cir. 1996); Benjamin v. McGinley, 2019 WL 952142, at *10 (W.D. Pa. Feb. 27, 2019). 44 Burrell v. State, 953 A.2d 957, 960 (Del. 2008). 45 See Swan v. State, 28 A.3d 362, 387 (Del. 2011) (observing that post-conviction courts may make credibility determinations and according “deference” to finding that post-conviction defendant’s version of events was “not credible” in light of the record), overruled on other grounds by Rauf v. State, 145 A.3d 430 (Del. 2016). 46 Baldwin v. State, 166 A.3d 938, 939 (Del. 2017) (citing Del. Super. Ct. Crim. R. 61(d)(5)). 47 E.g., Younger v. State, 580 A.2d 552, 554 (Del. 1990).

16 the motion’s merits on a claim-by-claim basis. 48 As explained below, Mr. Owens’s

motion is not barred, but it fails to state a claim for post-conviction relief.49

A. Mr. Owens’s Motion Is Not Procedurally Barred.

Rule 61 is nothing “other than a procedural device.”50 By consequence,

“[t]here are several limitations on . . . postconviction relief.” 51 A Rule 61 motion

must be dismissed if it is untimely or successive or raises claims that have been

defaulted or are precluded by a prior adjudication. 52 None of these bars applies here.

Mr. Owens’s motion is not time-barred because it was filed within one year

of his convictions’ finality. 53 It is not number-barred because it is Mr. Owens’s first

48 E.g., State v. Reyes, 155 A.3d 331, 342 n.15 (Del. 2017). 49 As explained more completely infra Analysis.C, the Court also denies Mr. Owens request for an evidentiary hearing because nothing Mr. Owens seeks to present would change the outcome. See Del. Super. Ct. Crim. R. 61(h)(1), (3). 50 Bailey v. State, 588 A.2d 1121, 1125 (Del. 1991). 51 Ploof, 75 A.3d at 820. 52 Del. Super. Ct. Crim. R. 61(i)(1)–(4); see, e.g., State v. Wright, 67 A.3d 319, 323 (Del. 2013). Mr. Owens filed his initial motion on February 27, 2017—about one month before the 2017 iteration of Rule 61 took effect—making the June 1, 2015, Rule 61 applicable here. See, e.g., Redden v. State, 150 A.3d 768, 772 (Del. 2016). The Court notes, however, that none of the provisions implicated in this motion was amended in 2017 and so the analysis would be the same under either the 2015 or 2017 version. See Order Amending Rule 61 of the Superior Court Rules of Criminal Procedure, Del. Super. Ct. (Mar. 23, 2017), courts.delaware.gov/forms/download.aspx?id=93658; Order Amending Rule 61(e) of the Superior Court Rules of Criminal Procedure, Del. Super. Ct. (May 29, 2015), courts.delaware.gov/superior/pdf/criminal_rule_61_amend_e_5_6_2015.pdf. 53 Del. Super. Ct. Crim. R. 61(i)(1), (m)(2).

17 one. 54 And it is neither defaulted nor precluded55 because it raises ineffective

assistance claims and such claims could not have been raised or resolved at any

earlier stage in this case. 56 Accordingly, the Court may reach the motion’s merits.

B. Mr. Owens Is Not Entitled to Post-Conviction Relief.

Defendants have a right to effective assistance of counsel.57 But calling a

lawyer’s representation ineffective does not make it so. Carrying an ineffective

assistance claim is a “heavy burden.” 58 To demonstrate ineffective assistance, a

defendant must show “first, that his counsel's representation fell below an objective

standard of reasonableness and, second, that the deficiencies in counsel's

representation caused him substantial prejudice.”59 Proving both deficient

54 Id. R. 61(i)(2). 55 Id. R. 61(i)(3)–(4). 56 See, e.g., Green v. State, 238 A.3d 160, 175 (Del. 2020) (“Simply put, ineffective- assistance claims are not subject to Rule 61(i)(3)’s bar because they cannot be asserted in the proceedings leading to the judgment of conviction under the Superior Court's rules and this Court's precedent. Put yet another way, the failure to assert an ineffective-assistance-of-counsel claim in the proceedings leading to the judgment of conviction is not a procedural default.” (footnote omitted)); see also Duross v. State, 494 A.2d 1265, 1269 (Del. 1985) (observing that motions for post-conviction relief afford “proper review” of ineffective assistance claims); see generally Guy v. State, 82 A.3d 710, 715 (Del. 2013) (“[I]n a jurisdiction like Delaware, where ineffective assistance of trial counsel may not be raised on direct appeal, the first post-conviction proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective [] assistance claim.” (internal quotation marks omitted)). 57 E.g., Reed v. State, 258 A.3d 807, 821 (Del. 2021). 58 Green, 238 A.3d at 174; accord Swan v. State, 248 A.3d 839, 859 (Del. 2021). 59 Green, 238 A.3d at 174 (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).

18 performance and substantial prejudice places a “formidable obstacle” in the path of

securing post-conviction relief. 60 “Mere allegations of ineffectiveness will not

suffice.” 61 Instead, a finding of ineffective assistance must be “compelled” by the

record.62 To be ineffective, “counsel’s conduct [must have] so undermined the

proper functioning of the adversarial process that the trial cannot be relied on as

having produced a just result.”63

Allegations of deficient performance are counteracted by “a strong

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

professional assistance.” 64 “There are countless ways to provide effective assistance

. . . . Even the best criminal defense attorneys would not defend a particular client

in the same way.”65 As a result, an ineffective assistance claimant must establish

that “no reasonable lawyer would have conducted the defense as his lawyer did.” 66

60 Id. 61 Wright v. State, 671 A.2d 1353, 1356 (Del. 1996). 62 Swan, 248 A.3d at 859 (internal quotation marks omitted); see also Hoskins v. State, 102 A.3d 724, 730 (Del. 2014) (“[T]he defendant must show that counsel made errors so serious that counsel was not functioning as the counsel guaranteed . . . by the Sixth Amendment.” (internal quotation marks omitted)). 63 Strickland, 466 U.S. at 686; accord Shockley v. State, 565 A.2d 1373, 1376 (Del. 1989). 64 Green, 238 A.3d at 174 (internal quotation marks omitted). 65 Strickland, 466 U.S at 689. 66 Green, 238 A.3d at 174 (internal quotation marks omitted).

19 Determining whether a defense attorney deviated from institutional norms

requires a retrospective focus.67 A performance analysis involves “reconstruct[ing]

the circumstances of counsel’s challenged conduct . . . from the counsel’s

perspective at the time.” 68 Necessarily, then, the scope of performance review is

limited to decisions made and excludes consideration of results achieved.69 The

outcomes of otherwise reasonable trial strategies and professional judgments are

“virtually unchallengeable.”70

Situated in the past, the Court “must remain cognizant that trial counsel’s

performance, viewed as a whole, is what matters.” 71 Performance review looks to

the entire representation and so analytically captures the defendant’s conduct as well.

Because defense lawyers serve clients, “a client’s statements or actions may

substantially influence counsel’s choices.”72 Because defendants always control key

67 See, e.g., Ploof, 75 A.3d at 821 (cautioning courts not to reason from “hindsight”). 68 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (internal quotation marks and emphasis omitted). 69 See, e.g., id. (“Because it is all too easy for a court examining counsel’s defense after it has proved unsuccessful to succumb to the distorting effects of hindsight, counsel’s actions are afforded a strong presumption of reasonableness.” (emphasis added) (alteration and internal quotation marks omitted)); see also Burns v. State, 76 A.3d 780, 788 (Del. 2013) (“[E]ven evidence of isolated poor strategy, inexperience, or bad tactics does not necessarily amount to ineffective assistance of counsel.” (alterations and internal quotation marks omitted)). 70 Swan, 248 A.3d at 859 (internal quotation marks omitted). 71 Green, 238 A.3d at 174 (alteration and internal quotation marks omitted). 72 Shockley, 565 A.2d at 1376.

20 aspects of their defense, 73 a defendant “cannot shift responsibility to his trial counsel

for decisions in which he played a major role.” 74

Deficient performance alone will not invalidate a conviction. An ineffective

assistance claimant also must show substantial prejudice: “a reasonable probability

that, but for counsel’s professional errors, the result of the proceeding would have

been different.”75 “A reasonable probability means a probability sufficient to

undermine confidence in the outcome . . . .” 76 And “[t]he likelihood of a different

result must be substantial[,] not just conceivable.”77 Failure to state prejudice with

particularity is “fatal.” 78 “[T]here is no need to analyze whether an attorney

performed deficiently if the alleged deficiency did not prejudice the movant.”79

1. The Plea Claim Fails.

Mr. Owens first alleges that Trial Counsel never informed him of any plea

offers. This allegation is not substantiated by the record. To the contrary, the record

shows that Mr. Owens received, but rejected, every plea offer.

73 See Taylor v. State, 213 A.3d 560, 567–68 (Del. 2019); Cooke v. State, 977 A.2d 803, 841–42 (Del. 2009). 74 Cabrera v. State, 173 A.3d 1012, 1021 (Del. 2017). 75 Swan, 248 A.3d at 859 (internal quotation marks omitted). 76 Green, 238 A.3d at 174 (internal quotation marks omitted). 77 Swan, 248 A.3d at 859 (internal quotation marks omitted). 78 Purnell v. State, 106 A.3d 337, 342 (Del. 2014) (internal quotation marks omitted); Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (“[F]or a claim of ineffective assistance of counsel to prevail, the defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.”). 79 Ruffin v. State, 2019 WL 719038, at *2 (Del. Feb. 19, 2019).

21 The right to effective assistance of counsel extends to plea negotiations.80

“Trial counsel in a criminal case must discuss with his client the possibility of a plea

instead of going to trial, especially if the State has offered to resolve the case for a

sentence significantly shorter than the defendant could face if convicted . . . .”81

Indeed, prejudice is presumed “‘if loss of the plea . . . led to a trial resulting in a

conviction on more serious charges or the imposition of a more severe sentence.’”82

After the State offered 15 years, Trial Counsel met with Mr. Owens to discuss

the offer and whether the defense should accept it or move to suppress.83 Trial

Counsel moved to suppress the handgun, and regardless of its dubious merits, filing

the motion did induce the prosecutor to trim 5 years off his sentencing offer,

provided, however, the defense withdrew the motion. Trial Counsel met with Mr.

Owens again to evaluate the hearing’s merits.84 Given that Trial Counsel ultimately

argued a motion that had little support in either the law or the facts, it is reasonable

to conclude that Trial Counsel underscored the advantages of taking the 10-year plea

during his meeting with Mr. Owens, but that Mr. Owens insisted on the hearing

nevertheless. Conversely, there is no reason to believe Trial Counsel would

80 E.g., Reed, 258 A.3d at 821–22. 81 Urquhart v. State, 203 A.3d 719, 733 (Del. 2019). 82 Id. at 734 (quoting Lafler v. Cooper, 566 U.S. 156, 168 (2012)). See also United States v. Cronic, 466 U.S. 648, 661–62 (1984). 83 A133 (Flockerzie Aff.). 84 A135–37 (Flockerzie Aff.).

22 deliberately withhold from Mr. Owens the fact that the plea offer had gotten sweeter

with the filing of the motion but the only way to get the deal was to withdraw the

motion.

This course is not only the logical one, but it is essentially what Trial Counsel

represented to the Court at final case review. There is no obvious reason why Trial

Counsel would tell the Court about a 10-year offer in the courtroom but not tell Mr.

Owens the same thing downstairs in the lockup. Indeed, Mr. Owens offers none.

The record supports a finding that Trial Counsel conveyed every offer to Mr.

Owens, “as [he was] required to do.”85 The same record depicts a defendant

prepared to take ill-considered risks to avoid jail. This is the problem with risk: if it

goes badly, the consequences can be severe. Mr. Owens cannot now shift the

responsibility for taking those risks to Trial Counsel when they were never Trial

Counsel’s risks in the first place. 86

The plea offers were better than the 19 years Mr. Owens received and the

lifelong imprisonment to which he was exposed. And it is understandable that Mr.

Owens preferred no jail sentence at all. But the odds of walking away without

sanction were never very good. The regret he surely feels now is not a basis for

post-conviction relief. Accordingly, the Plea Claim fails.

85 A142 (E-mail from Ross Flockerzie, Assistant Pub. Def., Off. of Def. Servs., to David Holloway, Deputy Att’y Gen., Del. Dep’t of J. (Dec. 4, 2014)). 86 Cabrera, 173 A.3d at 1021.

23 2. The Suppression Claims Fail.

Mr. Owens next alleges that Trial Counsel was ineffective because he did not

call to the suppression hearing three witnesses who supposedly had information and

“potentially photographs” tending to show the house where the police encountered

Mr. Owens was not vacant. 87 The record does not compel a finding that Trial

Counsel performed deficiently or prejudiced the Defendant at the suppression

hearing.

To begin, Trial Counsel affirms that he considered the witnesses, but

concluded their proffers about the house’s condition would be irrelevant. Trial

Counsel believed that the witnesses would neither support an adverse credibility

determination nor overcome the law governing seizures. Based on the facts alleged

and the law involved, this was a reasonable analysis.

The officer’s suspicion derived not only from the condition of the house, but

also from the owner’s past loitering complaints. No one lived in the house,

furthering the officer’s belief that Mr. Owens may not belong there. Police do not

need a no-loitering sign to inquire of persons sitting on residential property who, in

their experience, appear uninvited.

Moreover, Mr. Owens’s behavior appeared to be that of an armed individual

even before the officers parked their car or spoke to him. Contextualized, Mr.

87 Def.’s Am. R. 61 Mot. at 18.

24 Owens’s shifty movements aligned with recent reports of gun play in the area—acts

the officers were investigating just prior to observing Mr. Owens at the home. The

witnesses would not know about these facts and so would do nothing to rebut them.

Mr. Owens’s furtive movements and sudden flight were independent,

dispositive grounds for denying suppression. Looking to Trial Counsel’s decision

at the time he made it, rather than through the lens of the adverse outcome, it cannot

be said that “no reasonable lawyer” 88 would have disregarded descriptions of the

house’s façade.

More important, this debate about the house’s aesthetics obscures a basic

purpose of post-conviction relief. Post-conviction review “ensure[s] that individuals

are not imprisoned” wrongly; it is not designed to fix minor "errors of fact.”89

Ineffective assistance claims, and Rule 61 more broadly, allow habeas courts to

rectify “miscarriage[s] of justice.” 90 At their highest manifestations, ineffective

assistance claims, as transmitted through Rule 61, can vindicate claims of actual

innocence.91 Calibrated to screen for the wrongfully convicted, Rule 61 should not

be used to launch post hoc strikes on issues inessential to a judgment of guilt.

88 Green, 238 A.3d at 174 (internal quotation marks omitted). 89 Herrera v. Collins, 506 U.S. 390, 400 (1993); see also Ploof, 75 A.3d at 820 (Rule 61 “does not allow defendants unlimited opportunities to relitigate their convictions.”). 90 Del. Super. Ct. Crim. R. 61(i)(5). 91 Id. R. 61(d)(2)(i).

25 To chill relitigation of collateral issues, the ineffective assistance standard

deems successful a prejudice challenge that “undermine[s] confidence in the

outcome.”92 Generalized speculation that “an” outcome, such as a collateral fact

finding, would have been different but for the error, is insufficient. Here, then, Mr.

Owens needed to allege with particularity how impeaching the officer’s testimony

about the no-loitering sign would have resulted in suppression—not how doing so

might have affected some other determination. He has not.

For the suppression court, the no-loitering sign’s existence was not the central

issue. The central question was whether the officers had reasonable suspicion to

believe Mr. Owens possessed a concealed firearm. Subtracting the no-loitering sign,

there was an adequate basis for a stop of Mr. Owens. So even if the witnesses

appeared at the hearing with photographs corroborating their stories, the officer

would have been impeached on a detail of relatively little value.93 There is no

suggestion from the hearing transcript or in the suppression court’s written decision

that the court would have suppressed the firearm if it knew the house looked less

abandoned than the officer remembered.

92 Strickland, 466 U.S. at 694 (emphasis added). 93 See State v. Phlipot, 2017 WL 2266836, at *6 (Del. Super. Ct. May 24, 2017) (“A new trial will not be granted [due to ineffective assistance] if the newly discovered evidence is ‘merely cumulative or impeaching.’” (quoting Hicks v. State, 913 A.2d 1189, 1194 (Del. 2006))); see also Purnell, 254 A.3d at 1098–99.

26 True, it is “conceivable” that, had Trial Counsel demonstrated the unreliability

of the officer’s no-loitering-sign testimony, the suppression court would have found

the rest of the officer’s testimony unreliable too. But demonstrating prejudice

requires more than possibilities. Instead, it requires a “substantial” likelihood of a

different result.94 Here, although it is possible, as Mr. Owens’s says, that the

witnesses “could have assisted in his defense,” 95 it is not substantially likely that

their assistance “would have resulted”96 in suppression even if they were believed.

Accordingly, the Suppression Claims fail.

3. The Critical Stage Claim Fails.

Mr. Owens, as an incarcerated defendant, was held elsewhere in the

courthouse during his final case review. Because of that, he next alleges Trial

Counsel was ineffective for failing to bring him to the courtroom. This Claim

theorizes that final case review is a critical stage in criminal proceedings during

which Mr. Owens had a fundamental right to be present. It is not and he did not.

A defendant has a right to be physically present during all “critical stages” in

the proceedings: 97 “proceeding[s] in which defendants cannot be presumed to make

94 Swan, 248 A.3d at 859 (internal quotation marks omitted). 95 Def.’s Am. R. 61 Mot. at 18, 22 (emphasis added). 96 Swan, 248 A.3d at 859 (emphasis added) (internal quotation marks omitted). 97 See, e.g., Rushen v. Spain, 464 U.S. 114, 115 (1983); cf. Jeppi v. State, 1998 WL 984994, at *2 (Del. Nov. 12, 1998).

27 critical decisions without counsel’s advice.” 98 Criminal Rule 43 lists proceedings

where the defendant’s presence is mandatory. 99 That list is exhaustive. 100 But final

case review did not make the cut. So Mr. Owens was not entitled to be there.

To be sure, decisional law has recognized that the defendant’s right to be

present is not only rule-based, but also of “constitutional dimension.” 101 But final

case review is not the kind of “traditional and formal confrontation” 102 the federal or

Delaware Constitution imagined. Final case review is merely a docket-management

tool that operates as a status conference and streamlines administrative matters

before a case is set for trial. 103 In contrast to a critical stage, final case review is not

ordinarily a place where “the defendant’s presence has a relation, reasonably

substantial, to the fullness of his opportunity to defend against the charge.”104

98 E.g., Reed, 253 A.3d at 821–22 (internal quotation marks omitted). 99 Del. Super. Ct. Crim. R. 43(a). 100 See, e.g., Smolka v. State, 147 A.3d 226, 229 (Del. 2015) (holding that, because suppression hearing is not listed in Rule 43, the defendant’s attendance there is not required); accord State v. Kolaco, 2020 WL 7334176, at *6 (Del. Super. Ct. Dec. 14, 2020); see also Walls v. State, 850 A.2d 287, 290 (Del. 2004) (“[A]lthough a defendant has a right to be present at every stage of trial, that right is not absolute.” (citations omitted)). 101 See, e.g., Bradshaw v. State, 806 A.2d 131, 134 (Del. 2002). 102 Capano v. State, 781 A.2d 556, 654 (Del. 2001) (internal quotation marks omitted). 103 See Washington v. State, 844 A.2d 293, 295–96 (Del. 2004); see also Del. Super. Ct. Crim. R. 43(c) (excepting from the presence requirement certain “conferences”). 104 Bradshaw, 806 A.2d at 134 (alteration and internal quotation marks omitted).

28 Of course, final case review was created by the Court to facilitate pleas and

implement the rules governing them.105 And when the parties use final case review

as a forum for formally accepting or rejecting a plea, the defendant’s presence for a

colloquy is required.106 But that is not what the parties did here. Mr. Owens’s final

case review was not scheduled to formally reject a plea. As observed already: by

the time Mr. Owens’s final case review occurred, the 10-year deal was off the table.

Because final case review is not a critical stage, Mr. Owens must show that

his absence prejudiced him.107 He cannot. Rather, Trial Counsel simply relayed that

the parties had a pending suppression motion which, if resolved unfavorably, would

result in trial. Nothing about Mr. Owens’s presence would have made this update

more illuminating or important. Accordingly, the Critical Stage Claim fails.

4. The Allocution Claim Fails. 108

105 See, e.g., Washington, 844 A.2d at 296 (citing Del. Super. Ct. Crim. R. 11(e)(5)). 106 See, e.g., Del. Super. Ct. Crim. R. 43(a). 107 See Capano, 781 A.2d at 653–54; see also Dutton v. State, 452 A.2d 127, 147– 48 (Del. 1982) (distinguishing instances in which defendant’s absence is a per se reversible error from those where absence is reversible error only if prejudicial). 108 Reasonable jurists could find this claim procedurally barred under Rule 61(i)(3). Although the allegations are framed in ineffective assistance language, any prejudice here would be caused by the court’s allocution error. Any error could be blamed on counsel, depending on one’s level of abstraction. But Rule 61’s procedural bars would have no teeth if a post-conviction defendant could avoid them by simply recasting defaulted or precluded challenges in the language of ineffectiveness. See State v. Barksdale, 2020 WL 2096148, at *4 (Del. Super. Ct. Apr. 30, 2020). That said, the Court has decided to review this Claim for completeness.

29 As a fourth ground for relief, Mr. Owens alleges Trial Counsel was ineffective

because Mr. Owens was sentenced without a chance to allocute. This allegation is

contradicted by the record. Mr. Owens was given an opportunity to allocute, but he

missed it.

Defendants have a right to allocution. 109 Allocution rights are enshrined in

Rule 32, which requires the sentencing judge to address the defendant “personally”

to determine whether he wants to make a statement. 110 Although doing so by direct

address is preferable,111 a sentencing judge can meet this requirement by posing an

“open question” at the end of the defense’s presentation. 112 For example, the

Supreme Court has approved the use of “Anything else?” for satisfying Rule 32.113

That is what the sentencing court said. When Trial Counsel concluded his

presentation, the sentencing court asked, “Anything else?”114 At that point, Mr.

Owens could have exercised his right to speak. He did not. That was so even though

he later would inform the court about his education. 115 Contrasting his initial silence

with his post-mitigation willingness to respond, the Court infers that Mr. Owens

109 E.g., Shelton v. State, 744 A.2d 465, 495–96 (Del. 2000). 110 Del. Super. Ct. Crim. R. 32(a)(1)(C). 111 See Parker v. State, 2016 WL 690496, at *3 (Del. Feb. 18, 2016) (describing sentencing court’s failure to follow R. 32 procedures strictly as “unfortunate” but not reversing alternative method of introducing allocution testimony). 112 See Anderson v. State, 2016 WL 618840, at *5 (Del. Feb. 15, 2016). 113 Id. (internal quotation marks omitted). 114 A76 (Sentencing Hr’g Tr. at 12:9). 115 A77 (Sentencing Hr’g Tr. at 15:21–23, 16:1–2).

30 agreed to speak about mitigation matters only through Trial Counsel.116 Because the

court afforded Mr. Owens a chance to allocute, he cannot show prejudice.117

To the extent Mr. Owens argues Trial Counsel’s poor advice led to his silence,

his Claim still fails. The defense avoided allocution out of fear that Mr. Owens may

inculpate himself or otherwise damage the B case.118 Indeed, the CCDW charge

was premised on the same evidence that convicted Mr. Owens in the A case.

Commenting on the events of the A case could have surfaced a statement against

Mr. Owens’s interest potentially admissible against him in the B case.119 Given the

amount of prison time Mr. Owens already faced, Trial Counsel’s decision to advise

against allocution was a reasonable strategy designed to preserve defenses in the B

case.120 Accordingly, the Allocution Claim fails.

5. The Neglect Claims Fail.

116 Id. 117 Id. (“Anderson had the opportunity to speak on his own behalf and chose to speak through counsel. It is not apparent on the face of this record that Anderson was deprived of a substantial right . . . .”). 118 Inevitably, had Mr. Owens ignored Trial Counsel’s non-allocution strategy and botched his remarks, he would have claimed any bad result in the B case was caused by ineffective assistance. Cf. Harden v. State, 180 A.3d 1037, 1045–49 (Del. 2018). 119 See Del. R. Evid. 804(a)(1), (b)(3). E.g., Demby v. State, 695 A.2d 1152, 1158 (Del. 1997) (observing that invocation of Fifth Amendment makes declarant- defendant “unavailable” for purposes of Rule 804 hearsay exceptions). 120 See Parker, 2016 WL 690496, at *3 (“[A]ny failure of a trial court to adhere to the right of allocution is an error [that] is neither jurisdictional nor constitutional and not a fundamental defect [that] inherently results in a complete miscarriage of justice so as to constitute a denial of a fair trial.” (alterations and internal quotation marks omitted)).

31 As a fifth basis for post-conviction relief, Mr. Owens alleges that Trial

Counsel was ineffective because Trial Counsel did not meet with him at all or at

least often enough to prepare him for any defense of the A case. The Court tacitly

resolved these Claims in the context of the Plea and Suppression Claims and so here

rejects them as it did before. The only remaining allegation is that Trial Counsel

was ineffective for failing to write a mitigation report. This allegation fails too.

Preliminarily, this allegation seems to assert an excessiveness challenge to the

length of Mr. Owens’s sentence. To the extent that it does, however, the Court

cannot review it. Rule 61 applies to convictions, not sentences.121 As a result,

“sentencing claims are not cognizable under Rule 61.” 122 Regardless, Mr. Owens’s

sentence is long, but not illegal. As a habitual offender, Mr. Owens could have been

sentenced to life imprisonment. Nineteen years is well-within statutory limits.123

For a similar reason, Mr. Owens also cannot show he was prejudiced for lack

of a mitigation report. On these facts, a habitual PFBPP conviction carried a 15-year

minimum mandatory sentence. Trial Counsel could not have reduced that total.

Neither would a mitigation report.

121 See Del. Super. Ct. Crim. R. 61(a)(1); cf. id. (providing exception for capital sentences). 122 Gilmore v. State, 2016 WL 936990, at *1 (Del. Mar. 10, 2016). See Wilson v. State, 2006 WL 1291369, at *2 (Del. May 9, 2006); cf. Del. Super. Ct. Crim. R. 35. 123 See, e.g., Brittingham v. State, 705 A.2d 577, 578 (Del. 1998) (holding that correction of a sentence is available, among other situations, “when the sentence imposed exceeds statutorily authorized limits” (internal quotation marks omitted)).

32 Turning to the additional four years, Mr. Owens does not allege with

particularity how Trial Counsel’s “mitigation report”—or whatever it might

discuss—would have persuaded the court not to impose more than 15 years. The

court went beyond the minimum mandatory because the weapon was concealed and

Mr. Owens has an extensive criminal history. 124 Trial Counsel’s arguments on those

issues were rejected.125 So it is not reasonably likely that complimentary data would

have made a difference. Accordingly, all the Neglect Claims fail. 126

6. The Cumulative Error Claim Fails.

Finally, Mr. Owens attempts to package all his prior unavailing claims into

one, wholistic claim of “cumulative error.” The cumulative error or effect doctrine

applies when each error, “standing alone, would not be the basis for reversal.”127

124 A77 (Sentencing Hr’g Tr. 13:19–23, 14:1–23); A81 (Sentencing Or.). 125 See, e.g., A77 (Sentencing Hr’g Tr. 14:10–11) (“The Court: He hasn’t hurt anybody seriously yet, but that’s where this is heading.”). 126 The Court would be remiss if it did not remind Mr. Owens that this Court retained jurisdiction, “after several years have passed,” to modify or eliminate the additional four years that were imposed. A81 (Sentencing Or.). When sentencing jurisdiction is retained, the time limits that ordinarily bar untimely sentence-reduction motions become inoperative. See Del. Super. Ct. Crim. R. 35(b) (citing 11 Del. C. § 4217). Mr. Owens, however, should not understand this note as a sign of guaranteed success or as an invitation to file. Indicia of rehabilitation, including positive interactions with the Department of Corrections, are required, and failure to make a motion at the right time could result in any subsequent motions being denied as repetitive. Id. 127 Drumgo v. State, 2012 WL 1377596, at *1 (Del. Apr. 17, 2012).

33 Logically, a cumulative error analysis presupposes that errors exist. 128 But the Court

sees no errors here. So there is nothing to accumulate.129 Accordingly, the

Cumulative Error Claim fails.

C. An Evidentiary Hearing is Unwarranted.

Mr. Owens has requested an evidentiary hearing. Notably, he has never

maintained his innocence. He does not allege that he was not at the house, that he

did not run from the police, or that the gun recovered on the sidewalk belonged to

someone else. Instead, he wants to testify from personal knowledge about how his

lawyer did not communicate a plea and to produce the suppression witnesses he

believes Trial Counsel should have called. Given those plans, and the foregoing

analysis, the Court must determine whether an evidentiary hearing is “desirable.”130

The Court concludes it is not.

128 See, e.g., Starling v. State, 130 A.3d 316, 336 (Del. 2015) (“Where there are multiple errors in a trial, the Court must weigh their cumulative effect . . . .” (emphasis added)). 129 E.g., Hoskins, 102 A.3d at 735 (“As we have already noted, none of Hoskins'[s] individual claims of ineffective assistance have merit because of a failure to show prejudice. Hoskins'[s] claim of cumulative error is without merit.”). 130 Del. Super. Ct. Crim. R. 61(h)(1).

34 There is no right to a post-conviction evidentiary hearing.131 And not every

case warrants one.132 Taken together, the Court has “broad discretion” to deny a

request for an evidentiary hearing where conducting one would not resolve open, but

decisive, questions left unanswered by the original proceedings.133

An evidentiary hearing is not empty ritual. It can aid in reversing a wrongful

conviction by advancing the defendant’s claims with greater precision and toward a

fuller understanding. Stated negatively, an evidentiary hearing is not an opportunity

to present unsupported allegations that are contradicted by the pre-hearing record or

to address secondary issues that are not material to a favorable determination of the

defendant’s claims. 134 So a defendant seeking a hearing must propose more than

131 E.g., Getz v. State, 2013 WL 5656208, at *1 (Del. Oct. 15, 2013) (“Rule 61 does not mandate the scheduling of an evidentiary hearing in every case, but, rather, leaves it to the Superior Court to determine whether [one] is needed.”). 132 See Hawkins v. State, 2003 WL 22957025, at *1 (Del. Dec. 10, 2003) (“It is well- settled that the Superior Court is not required to conduct an evidentiary hearing upon a Rule 61 motion if, on the face of the motion, it appears that the petitioner is not entitled to relief.”). 133 Winn v. State, 2015 WL 1469116, at *2 (Mar. 30, 2015). 134 E.g., State v. Melendez, 2003 WL 23095688, at *8 (Del. Super. Ct. Dec. 19, 2003) (“Melendez’s claims might warrant an evidentiary hearing if [the record] did not wholly contradict the allegations in his Rule 61 motion.”), aff’d, 2004 WL 1965650 (Del. Aug. 25, 2004); accord State v. Brown, 2004 WL 2240161, at *2 (Del. Super. Ct. Sept. 17, 2004). See also State v. Guess, 2014 WL 3510017, at *3 (Del. Super. Ct. July 15, 2014) (denying evidentiary hearing where “affidavit, transcript, and the [criminal] file” contradicted post-conviction defendant’s allegations); State v. Jones, 2008 WL 4173816, at *23 (Del. Super. Ct. Sept. 3, 2008) (denying evidentiary hearing because the Court “analyzed every single claim” and “none” was supported by the record); State v. Bradley, 2006 WL 3308207, at *1 (Del. Super. Ct. Oct. 17, 2006) (rejecting without evidentiary hearing plea challenge because defendant’s

35 bare allegations refuted by the record or collateral evidence that would not change

the outcome. 135

Here, Mr. Owens’s proffered presentation is unsubstantiated and, if

entertained, would defeat the purpose of an evidentiary hearing. As explained, the

record refutes Mr. Owens’s allegation that Trial Counsel never told him about a plea.

At a hearing, Mr. Owens would simply repeat his allegations in a courtroom. He

has not marshaled reliable documents or a credible witness or identified another

“sufficient factual and legal basis”136 for impugning Trial Counsel’s testimony that

he communicated the plea offers. As a practical matter, then, the Court would be

required to resolve a credibility battle by choosing between an ipse dixit narrative

emerging for the first time in an amended Rule 61 motion and an affidavit supported

by a record that contradicts the defendant’s claims. That not really being a choice,

an evidentiary hearing would be futile and not be “what justice dictates.”137

claims were “not credible” and contradicted by record evidence); State v. Barham, 2002 WL 1584901, at *2 (Del. Super. Ct. July 3, 2002) (rejecting without evidentiary hearing Rule 61 challenge to plea because defendant’s claims were “not credible” and “had no bearing on [his] decision to enter a guilty plea”). 135 See Melendez, 2003 WL 23095688, at *8 (“In a situation in which a defendant submits specific factual allegations not directly contradicted in the record . . ., further fact development would be required.”); see also Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.”). 136 Del. Super. Ct. Crim. R. 61(a)(1). 137 Id. R. 61(h)(3).

36 As to the suppression witnesses, the Court already explained that their

impeachment testimony, even if correct and believed (and not impeached in its own

right), would not undermine the Court’s confidence in the suppression ruling.

Impeachment evidence that “goes only to the weight and credibility” of an adverse

witness, like the officer, does not justify a new trial. 138

More important, even if the witnesses produced photographs showing the

home occupied and without a no-loitering sign, it would not make a difference. To

reiterate: the police knew the owner had reported loitering on the property in the

past. Stopping to inquire of Mr. Owens would have been appropriate regardless of

the condition of the property. Mr. Owens’s decision to run in a high-crime area

obviously came before (and supported) the police telling him to stop and further

supported their suspicions he was up to no good.139 Any doubts about the police

suspicions were allayed by Mr. Owens’s own conduct. At best, therefore, the

witnesses’ testimony would clarify a fact collateral to whether the police could

detain Mr. Owens on a reasonable suspicion that he possessed a firearm. Because

the existing record and the one Mr. Owens aspires to create show the suppression

ruling “would [not] have been different”140 had Trial Counsel called the witnesses,

an evidentiary hearing is unwarranted and so is denied.

138 Purnell, 254 A.3d at 1098 (emphasis omitted). 139 E.g., Woody v. State, 765 A.2d 1257, 1265–66 (Del. 2001). 140 Swan, 248 A.3d at 859 (internal quotation marks omitted).

37 CONCLUSION

For the foregoing reasons, Mr. Owens’s Rule 61 motion is DENIED.

IT IS SO ORDERED.

Charles E. Butler, Resident Judge