IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY. Submitted: April 3, 2002 Decided: April 10, 2002 O R D E R

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1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY STATE OF DELAWARE ) ) v. ) IK R1 ) through MICHAEL A. BENSON, ) IK R1 ) Defendant. ) ) Submitted: April 3, 2002 Decided: April 10, 2002 O R D E R Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation and the record in this case, it appears that: (1) The defendant, Michael A. Benson ("Benson") was found guilty by a jury on August 18, 1998 of three counts of Delivery of Cocaine, 16 Del. C. 4751; two counts of Possession with Intent to Deliver Cocaine, 16 Del. C. 4751; one count of Maintaining a Dwelling for the Keeping of Controlled Substances, 16 Del. C. 4755(a)(5), one count of Trafficking Cocaine, 16 Del. C. 4753A(a)(2)a; and one count of Possession of Drug Paraphernalia, 16 Del. C On December 4, 1998 the Court sentenced Benson to 78 years incarceration of which 75 years at Level V were mandatory. A timely notice of appeal was filed. Benson s counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to

2 State v. Michael A. Benson April 10, 2002 withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed Benson of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. Benson was informed of his right to supplement his attorney s presentation but raised no additional issues. The Delaware Supreme Court on appeal affirmed each of Benson s convictions and sentences. 1 Next, Benson filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. He has raised four grounds for relief including ineffective assistance of counsel. (2) The Court referred this motion to Superior Court Commissioner Andrea Maybee Freud pursuant to 10 Del. C. 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice. (3) No objections to the Report have been filed. (4) Benson has not provided a basis for postconviction relief under Rule Benson v. State, Del. Supr., No. 521, 1998, Hartnett, J. (June 29, 1999) (ORDER). 2 Under present law the Department of Correction may apply to the Court for a reduction of sentence under 11 Del. C In the alternative, Benson may seek clemency through the Board of Pardons process. 2

3 State v. Michael A. Benson April 10, 2002 NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated, IT IS ORDERED that: (A) The Commissioner's Report and Recommendation is adopted by the Court; (B) The defendant's Motion for Postconviction Relief is DISMISSED. cmh oc: xc: /s/ Henry dupont Ridgely President Judge Prothonotary Hon. Andrea Maybee Freud John R. Garey, Esq. John McDonald, Esq. Mr. Michael A. Benson Order Distribution (w/report & Recommendation) 3

4 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY STATE OF DELAWARE ) ) v. ) ) MICHAEL A. BENSON ) IK R1 ) through ) IK R1 Defendant. ) ID. No ) John R. Garey, Esq., Deputy Attorney General, The Green, Dover, Delaware, for the State of Delaware. Michael A. Benson, pro se. COMMISSIONER'S REPORT AND RECOMMENDATIONS FREUD, Commissioner Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61 On August 18, 1998 the Defendant, Michael A. Benson ("Benson") was found guilty by a jury as charged of three counts of Delivery of Cocaine, 16 Del. C. 4751; two counts of Possession with Intent to Deliver Cocaine, 16 Del. C. 4752; one count of Maintaining a Dwelling for the Keeping of Controlled Substances, 16 Del. C. 4755, one count of Trafficking Cocaine, 16 Del. C.

5 4753(a)(2)(a); and one count of Possession of Drug Paraphernalia, 16 Del. C On December 4, 1998 the Court sentenced Benson to 78 years incarceration followed by probation. A substantial portion of the jail time was minimum mandatory time based upon Benson s criminal history. A timely notice of appeal was filed. Benson s counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c). In the motion to withdraw, appellate counsel represented that he conducted a conscientious review of the record and concluded that no meritorious issues existed. By letter, counsel informed Benson of the provisions of Rule 26(c) and attached a copy of the motion to withdraw and accompanying brief. Benson was informed of his right to supplement his attorney s presentation but raised no additional issues. The Supreme Court on appeal affirmed each of Benson s convictions and sentences. 3 Next, Benson filed the pending postconviction motion in which he raises the following grounds for relief: Ground one: Ineffective assistance of counsel. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoughness (sic) and preparation reasonably necessary for the preparation and competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements. 3 Benson v. State, Del. Supr., No.521, 1998, Hartnett, J. (June 29, 1999)(ORDER). 2

6 Ground two: Motion to Suppress evidence. Movant filed a motion for suppression hearing on Feb. 6, 1998, also a letter was referred to Counsel Richard Baumeister. Movant (sic) motion was never heard in Superior Court Kent Cout (sic). Ground three: Insufficient Evidence. Based on Officer Berna (sic) testimony which he states that he assumed that illegal activity was taking place. Berna never identified alleged narcotics at trial, moreover, assumption arise (sic) in order to prove delivery. It raises a question to rather simple possession is deemed neccessary (sic). Ground four: Illegal Sentencing: Movant was tried and convicted on all counts which stemmed from the same offense, movant should have not been sentenced under the Previous conviction statute of 16 Del. C. 4763(a)(3), in light of 11 Del. C. 4214(a) and (b). Movant s counsel Richard Baumeister withdraw as counsel without examining movant s case sufficient (sic). Under Delaware Law the Court must first determine whether Benson has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. 4 Under Rule 61, postconviction claims for relief must be brought within three years of the 4 Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 554 (1990) (citing Harris v. Reed, 489 U.S. 255 (1989)). See Dawson v. State, Del. Supr., 673 A.2d 1186, 1190 (1996). 3

7 conviction becoming final. 5 Benson s motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Benson s initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either. Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for the procedural fault and (2) prejudice from a violation of the movant s rights. 6 The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim or miscarriage of justice stemming from a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgment of conviction. 7 Only Benson s first claim is premised on allegations of ineffective assistance of counsel. This ground for relief however is merely a recitation of a general standard for counsel s effectiveness and not any specific claim of ineffectiveness. For the sake of argument, I will assume that Benson is claiming ineffective assistance of counsel as to his remaining three grounds for relief in which he, to some minimal extent, make somewhat less vague claims. Thus, 5 Super. Ct. Crim. R. 61(i)(1). 6 Super. Ct. Crim. R. 61(i)(3). 7 Super. Ct. Crim. R. 61(i)(5). 4

8 Benson has minimally raised counsel s effectiveness in each of his four grounds for relief. Benson has therefore seemingly alleged sufficient cause for not having asserted these grounds for relief at trial. However, Benson was given the opportunity to raise any issues he saw fit to raise on direct appeal and failed to do so thus he has failed to show cause for his failure. These types of claims are not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Benson, allege ineffective assistance of counsel in order to overcome the procedural default. However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. 8 The United States Supreme Court has held that: [i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not conduc[t] trials at which persons who face incarceration must defend 8 State v. Gattis, Del. Super., ID No DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8. 5

9 themselves without adequate legal assistance ; ineffective assistance of counsel then is cause for a procedural default. 9 A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant must engage in the two part analysis enunciated in Strickland v. Washington 10 and adopted by the Delaware Supreme Court in Albury v. State. 11 The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. 12 Second, under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. 13 In setting forth 9 Murray v. Carrier, 477 U.S. 478, 488 (1986) U.S. 668 (1984) ("Strickland"). 11 Del. Supr., 551 A.2d 53 (1988). 12 Strickland at 687. See Dawson, 673 A.2d at Id. at 694. Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d (1992). 6

10 a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal. 14 Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. 15 However, the showing of prejudice is so central to this claim that the Strickland court stated "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." 16 In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. 17 Furthermore, the defendant must rebut a strong presumption that trial counsel s representation fell within the wide range of reasonable professional assistance, and this Court must eliminate from its consideration the distorting effects of hindsight when viewing that representation Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997) Younger v. State, 580 A.2d at 556; Robinson v. State, Del. Supr. 562 A.2d 1184, 1185 (1989); Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER); Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER) Accord Wells v. Petstock, 941 F.2d 253, (3 rd Cir. 1991). 15 Strickland at Id. at State v. Gattis, Mem. Op. at Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, (continued...) 7

11 In the case at bar, Benson attempts to show cause for his procedural default by making merely conclusory assertions of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. These failures are fatal to Benson s Rule 61 petition and should result in summary dismissal for each of his ineffective assistance of counsel claims. 19 The Supreme Court found no error at the trial. Benson can prove no prejudice based upon counsel's actions. Concerning Benson s sentence, as pointed out by Benson s former counsel in his affidavit, Benson was subject to minimum mandatory penalties, Benson had an extensive criminal record. Benson s self serving conclusory allegations of prejudice are unsubstantiated and merit dismissal. Despite Benson s protests to the contrary, there is no evidence of counsel s representation being inadequate or prejudicial to Benson. Furthermore, a review of the record shows counsel's representation of Benson was more than adequate under Strickland. Benson had the opportunity on direct appeal to raise issues concerning the motion to suppress (which he was admittedly aware of) or the sufficiency of the evidence and chose not to. Thus these claims are barred by Rule 6(i)(3) absent a 18 (...continued) 1356 (1996). 19 See e.g. Wright, 671 A.2d at 1356; Skinner v. State, supra; Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER). 8

12 demonstration of cause and prejudice. Benson has made no attempt to justify his failure to have raised this issue on direct appeal and it is therefore procedurally barred. These grounds for relief should also be dismissed as procedurally barred. After reviewing the record in this case, it is clear that Benson has failed to avoid the procedural bars of Rule 61(i). Consequently, I recommend that Benson s postconviction motion be dismissed as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice. /s/ Andrea Maybee Freud Commissioner Andrea Maybee Freud oc: xc: Prothonotary Hon. Henry dupont Ridgely John R. Garey, Esq. John McDonald, Esq. Mr. Michael A. Benson File 9