IN THE SUPREME COURT OF THE STATE OF DELAWARE
LESHAWN WASHINGTON, § § Defendant Below, § No. 547, 2014 Appellant, § § Court Below—Superior Court v. § of the State of Delaware, § in and for New Castle County STATE OF DELAWARE, § Cr. ID No. 110121242 § Plaintiff Below, § Appellee. §
Submitted: February 2, 2015 Decided: February 24, 2015
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 24th day of February 2015, upon consideration of the appellant’s
Supreme Court Rule 26(c) brief, the State’s response, and the record below, it
appears to the Court that:
(1) On October 31, 2011, after a five day trial, a Superior Court jury
found the appellant, LeShawn Washington, guilty of four counts of Assault in the
First Degree, two counts of Assault in the Second Degree, twelve counts of
Possession of a Firearm During the Commission of a Felony (“PFDCF”), and six
counts of Reckless Endangering in the First Degree. These convictions arose from
a shooting at First State Lanes. Washington was sentenced to more than eighty years of Level V incarceration, suspended after fifty-six years. On appeal, this
Court affirmed the judgment of the Superior Court.1
(2) On March 12, 2014, Washington, with the assistance of counsel
(“Postconviction Counsel”), filed his first motion for postconviction relief.
Washington raised five ineffective assistance of counsel claims and alleged that: (i)
his trial counsel only met with him twice before trial and failed to advise him of
the nature and extent of the evidence against him; (ii) his trial counsel was unaware
of much of the evidence, wrongly informed him there was no video surveillance
evidence, and received a damaging statement from one of the State’s key
witnesses, Anthony Stanley, shortly before trial; (iii) his trial counsel failed to
provide him with the discovery produced by the State, preventing Washington
from providing information to assist his trial counsel with cross-examination or
identification of possible witnesses; (iv) his trial counsel failed to object to the
State providing certain discovery less than two weeks before trial, including an
interview of a jailhouse informant who testified on behalf of the State at trial, or
request a continuance; and (v) his trial counsel inadequately disclosed and
discussed the State’s plea offers with him.
(3) At the direction of the Superior Court, Washington’s trial counsel
filed an affidavit in response to the ineffective assistance of counsel claims and the
1 Washington v. State, 2013 WL 961561 (Del. Mar. 12, 2013).
2 State filed a response to the postconviction motion. In an opinion and order dated
August 28, 2014, the Superior Court denied Washington’s first motion for
postconviction relief. The Superior Court concluded that Washington’s ineffective
assistance of counsel claims were not procedurally barred under Superior Court
Criminal 61(i), but that Washington had failed to establish his trial counsel was
ineffective under Strickland v. Washington.2 This appeal followed.
(4) On appeal, Postconviction Counsel filed a brief and a motion to
withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Postconviction Counsel
asserts that, based upon a complete and careful examination of the record, there are
no arguably appealable issues. Postconviction Counsel informed Washington of
the provisions of Rule 26(c) and provided Washington with a copy of the motion to
withdraw and the accompanying brief. Postconviction Counsel also informed
Washington of his right to identify any points he wished this Court to consider on
appeal and Washington submitted an opening brief and appendix. The State has
responded to Washington’s brief and asked this Court to affirm the Superior
Court’s judgment.
(5) Washington’s arguments on appeal may be summarized as follows: (i)
his trial counsel was ineffective because he failed to object to late discovery
produced by the State or seek a continuance and was unfamiliar with the evidence;
2 466 U.S. 668 (1984).
3 (ii) his trial counsel was ineffective because he failed to call or subpoena
Washington’s mother and two other individuals as witnesses to impeach a State
witness; (iii) his trial counsel was ineffective because his failure to show
Washington video surveillance of the crime before trial led to Washington
declining the State’s plea offer; and (iv) he was entitled to an evidentiary hearing
in the Superior Court so his trial counsel could be questioned as to why he did not
object to late discovery produced by the State or seek a continuance. To the extent
Washington raised additional issues in the postconviction motion he filed in the
Superior Court, his failure to raise those claims in his opening brief constitutes a
waiver of those claims on appeal.3
(6) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
must conduct its own review of the record and determine whether the appeal is so
totally devoid of at least arguably appealable issues that it can be decided without
an adversary presentation.4 This Court reviews the Superior Court’s denial of
postconviction relief for abuse of discretion and questions of law de novo.5 When
3 Walker v. State, 2014 WL 7010825, at *1 n.1 (Del. Dec. 4, 2014); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 5 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4 reviewing the Superior Court’s denial of a motion for postconviction relief, this
Court must first consider the procedural requirements of Superior Court Criminal
Rule 61 (“Rule 61”) before addressing any substantive issues.6 We agree with the
Superior Court that the procedural bars of Rule 61(i) did not bar Washington’s
timely claims of ineffective assistance of counsel.
(7) To prevail on an ineffective assistance of counsel claim, a defendant
must establish that: (i) his counsel's representation fell below an objective standard
of reasonableness; and (ii) but for counsel's unprofessional errors, the outcome of
his trial would have been different.7 Although not insurmountable, the Strickland
standard is highly demanding and leads to a “strong presumption that the
representation was professionally reasonable.”8 Washington first contends that his
trial counsel was ineffective because he failed to object to late discovery produced
by the State or seek a continuance and as a result was unfamiliar with the evidence
against Washington. According to Washington, the late disclosure of witness Ryan
Geary, an inmate who testified that Washington told him that he was involved in
the First State Lanes shooting, deprived his counsel of time to gather impeachment
evidence and prepare an effective cross-examination. Washington raises the same
6 Younger v. State,
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
LESHAWN WASHINGTON, § § Defendant Below, § No. 547, 2014 Appellant, § § Court Below—Superior Court v. § of the State of Delaware, § in and for New Castle County STATE OF DELAWARE, § Cr. ID No. 110121242 § Plaintiff Below, § Appellee. §
Submitted: February 2, 2015 Decided: February 24, 2015
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 24th day of February 2015, upon consideration of the appellant’s
Supreme Court Rule 26(c) brief, the State’s response, and the record below, it
appears to the Court that:
(1) On October 31, 2011, after a five day trial, a Superior Court jury
found the appellant, LeShawn Washington, guilty of four counts of Assault in the
First Degree, two counts of Assault in the Second Degree, twelve counts of
Possession of a Firearm During the Commission of a Felony (“PFDCF”), and six
counts of Reckless Endangering in the First Degree. These convictions arose from
a shooting at First State Lanes. Washington was sentenced to more than eighty years of Level V incarceration, suspended after fifty-six years. On appeal, this
Court affirmed the judgment of the Superior Court.1
(2) On March 12, 2014, Washington, with the assistance of counsel
(“Postconviction Counsel”), filed his first motion for postconviction relief.
Washington raised five ineffective assistance of counsel claims and alleged that: (i)
his trial counsel only met with him twice before trial and failed to advise him of
the nature and extent of the evidence against him; (ii) his trial counsel was unaware
of much of the evidence, wrongly informed him there was no video surveillance
evidence, and received a damaging statement from one of the State’s key
witnesses, Anthony Stanley, shortly before trial; (iii) his trial counsel failed to
provide him with the discovery produced by the State, preventing Washington
from providing information to assist his trial counsel with cross-examination or
identification of possible witnesses; (iv) his trial counsel failed to object to the
State providing certain discovery less than two weeks before trial, including an
interview of a jailhouse informant who testified on behalf of the State at trial, or
request a continuance; and (v) his trial counsel inadequately disclosed and
discussed the State’s plea offers with him.
(3) At the direction of the Superior Court, Washington’s trial counsel
filed an affidavit in response to the ineffective assistance of counsel claims and the
1 Washington v. State, 2013 WL 961561 (Del. Mar. 12, 2013).
2 State filed a response to the postconviction motion. In an opinion and order dated
August 28, 2014, the Superior Court denied Washington’s first motion for
postconviction relief. The Superior Court concluded that Washington’s ineffective
assistance of counsel claims were not procedurally barred under Superior Court
Criminal 61(i), but that Washington had failed to establish his trial counsel was
ineffective under Strickland v. Washington.2 This appeal followed.
(4) On appeal, Postconviction Counsel filed a brief and a motion to
withdraw under Supreme Court Rule 26(c) (“Rule 26(c)”). Postconviction Counsel
asserts that, based upon a complete and careful examination of the record, there are
no arguably appealable issues. Postconviction Counsel informed Washington of
the provisions of Rule 26(c) and provided Washington with a copy of the motion to
withdraw and the accompanying brief. Postconviction Counsel also informed
Washington of his right to identify any points he wished this Court to consider on
appeal and Washington submitted an opening brief and appendix. The State has
responded to Washington’s brief and asked this Court to affirm the Superior
Court’s judgment.
(5) Washington’s arguments on appeal may be summarized as follows: (i)
his trial counsel was ineffective because he failed to object to late discovery
produced by the State or seek a continuance and was unfamiliar with the evidence;
2 466 U.S. 668 (1984).
3 (ii) his trial counsel was ineffective because he failed to call or subpoena
Washington’s mother and two other individuals as witnesses to impeach a State
witness; (iii) his trial counsel was ineffective because his failure to show
Washington video surveillance of the crime before trial led to Washington
declining the State’s plea offer; and (iv) he was entitled to an evidentiary hearing
in the Superior Court so his trial counsel could be questioned as to why he did not
object to late discovery produced by the State or seek a continuance. To the extent
Washington raised additional issues in the postconviction motion he filed in the
Superior Court, his failure to raise those claims in his opening brief constitutes a
waiver of those claims on appeal.3
(6) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
must conduct its own review of the record and determine whether the appeal is so
totally devoid of at least arguably appealable issues that it can be decided without
an adversary presentation.4 This Court reviews the Superior Court’s denial of
postconviction relief for abuse of discretion and questions of law de novo.5 When
3 Walker v. State, 2014 WL 7010825, at *1 n.1 (Del. Dec. 4, 2014); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993). 4 Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996). 5 Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4 reviewing the Superior Court’s denial of a motion for postconviction relief, this
Court must first consider the procedural requirements of Superior Court Criminal
Rule 61 (“Rule 61”) before addressing any substantive issues.6 We agree with the
Superior Court that the procedural bars of Rule 61(i) did not bar Washington’s
timely claims of ineffective assistance of counsel.
(7) To prevail on an ineffective assistance of counsel claim, a defendant
must establish that: (i) his counsel's representation fell below an objective standard
of reasonableness; and (ii) but for counsel's unprofessional errors, the outcome of
his trial would have been different.7 Although not insurmountable, the Strickland
standard is highly demanding and leads to a “strong presumption that the
representation was professionally reasonable.”8 Washington first contends that his
trial counsel was ineffective because he failed to object to late discovery produced
by the State or seek a continuance and as a result was unfamiliar with the evidence
against Washington. According to Washington, the late disclosure of witness Ryan
Geary, an inmate who testified that Washington told him that he was involved in
the First State Lanes shooting, deprived his counsel of time to gather impeachment
evidence and prepare an effective cross-examination. Washington raises the same
6 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 7 Strickland, 466 U.S. at 687-88. 8 Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
5 claim with respect to witness JoeQwell Coverdale, who testified that Washington
was at First State Lanes the night of the shooting and that Washington said he
thought he hit one of the victims.
(8) Based on its review of trial counsel’s affidavit and the record, the
Superior Court rejected Washington’s claims that his trial counsel was unfamiliar
with the evidence against Washington or ineffective in his handling of Geary. The
Superior Court noted that Washington’s trial counsel represented in his affidavit
that he was fully aware of the State’s evidence against Washington and concluded
that there was no indication in the record that trial counsel was unaware of any of
the evidence provided by the State. The Superior Court also found that the cross-
examination of Geary reflected appropriate strategy by trial counsel and that
Washington had failed to overcome the strong presumption of professionally
reasonable representation by counsel. We agree with the analysis and conclusion
of the Superior Court. Washington’s ineffective assistance of counsel claims
relating to his trial counsel’s familiarity with the evidence and handling of Ryan
Geary are therefore without merit.
(9) As to Washington’s ineffective assistance of counsel claim regarding
Coverdale, this claim was not raised his motion for postconviction relief.
Washington points to an unnotarized affidavit filed with the Superior Court on
January 7, 2013 in which Coverdale purportedly retracted his trial testimony, but
6 this affidavit was not referenced or included in Washington’s first postconviction
motion.9 The postconviction motion also did not include Washington’s claim that
his trial counsel was ineffective because he failed to call or subpoena his mother
and two other individuals as witnesses, despite Washington’s requests, in order to
attack Coverdale’s testimony. Washington included an affidavit of his mother
dated December 1, 2014 in the appendix accompanying his opening brief, but this
affidavit was not included with his postconviction motion. We will not consider
these claims for the first time on appeal.10
(10) Washington next contends that his trial counsel was ineffective
because his failure to show Washington video surveillance of the crime before trial
led to Washington declining the State’s plea offer. Like the previous claims, this
claim was not raised in Washington’s postconviction motion and we will not
consider it for the first time on appeal.11
(11) Finally, Washington’s claim that he was entitled to an evidentiary
hearing in the Superior Court is without merit. It was within the Superior Court’s
9 The trial record reflects that Coverdale testified that he received threats in prison before testifying and that Washington had made a shooting gesture at him on the morning of his testimony. 10 Supr. Ct. R. 8. 11 Id.
7 discretion to decide his postconviction motion without an evidentiary hearing.12
The Superior Court did not err in deciding Washington’s motion for postconviction
relief without an evidentiary hearing.
(12) This Court has reviewed the record carefully and has concluded that
Washington’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Postconviction Counsel has made a
conscientious effort to examine the record and the law and has properly determined
that Washington could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura Justice
12 Super. Ct. Crim. R. 61(h)(1) (“After considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable.”); Gatz 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 an evidentiary hearing is needed.”).