# State v. Brown

> Superior Court of Delaware · July 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10465577

## Case

- **Court:** Superior Court of Delaware
- **Decided:** July 9, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Salomone C.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Plaintiff, )
)
v. ) ID No. 2108008637
)
DEMETRIUS BROWN, )
)
Defendant. )

Submitted: March 22, 2024
Decided: June 27, 2024
Corrected: July 9, 20241

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED

William H. Leonard, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Gregory M. Johnson, Esquire, Wilmington, Delaware, Counsel for Defendant.

Demetrius Brown, Philadelphia, Pennsylvania, pro se.

SALOMONE, Commissioner

1
The Report and Recommendation has been corrected to remove superfluous language and amend footnotes
14 through 18 and footnotes 21 through 24.
This 27th day of June 2024, upon consideration of the Motion for

Postconviction Relief filed by Defendant Demetrius Brown (“Brown” or the

“Defendant”), it appears to the Court as follows:

FACTS AND PROCEDURAL HISTORY

On August 17, 2021, officers from the Wilmington Police Department

responded to the area of West 6th Street and North Harrison Street after hearing

multiple gunshots being fired in the area.2 A victim at the scene identified Brown as

the person who had shot at him with a black handgun.3 A second victim at the scene,

who shares a child with Brown, reported that prior to the shooting she saw Brown at

the front window of her residence and then pointed the handgun at her while she was

inside.4 Police obtained video surveillance from the surrounding area.5 In one of

the videos the first victim can be seen and heard yelling down the street, but no video

showed the actual shooter.6 That same victim showed police a text message from

Brown after the shooting in which Brown inquires “Bro, you ok?”7 Police later

2
These general facts are taken from the Affidavit of Probable Cause, dated August 17, 2021, State
v. Demetrius Brown, Delaware Superior Court Criminal Docket, ID No. 2108008637 (hereinafter,
“D.I. __”) 1.
3
Id.
4
Id.; see also Transcript of Preliminary Hearing, dated September 1, 2021, State v. Demetrius
Brown, ID No. 2108008637 (hereinafter, “D.I. 13”).
5
D.I. 13 at 16-17.
6
D.I. 45.
7
Id.
1
recovered a firearm that ballistically matched the shell casings at the scene at the

home of one of Brown’s relatives.8

On October 25, 2021, a grand jury indicted Brown for the following offenses:

(i) Aggravated Menacing, (ii) Reckless Endangering First Degree, (iii) two counts

of Possession of a Firearm During the Commission of a Felony, (iv) Possession of a

Firearm by a Person Prohibited, (v) Carrying a Concealed Deadly Weapon, and (vi)

two counts of Criminal Mischief in connection with the shooting that occurred on

August 17, 2021.9 On August 3, 2022, Brown plead guilty to three charges, which

included Aggravated Menacing, Reckless Endangering First Degree, and Carrying a

Concealed Deadly Weapon.10 Prior to entering the plea, Brown signed the plea

agreement, a Truth-in-Sentencing Guilty Plea Form and an Immediate Sentencing

Form.11 As part of the plea agreement, the State agreed to (i) recommend a total

sentence of three (3) years at Level V followed by decreasing levels of probation and

(ii) enter a nolle prosequi on the remaining charges.12 The Court followed that

recommendation when sentencing the Defendant.13

8
Id.
9
D.I. 10.
10
D.I. 29.
11
D.I. 45 (Exhibit A).
12
Plea Agreement, dated August 1, 2022, State v. Demetrius Brown, ID No. 2108008637.
13
Transcript of Plea Hearing, dated August 3, 2022, State v. Demetrius Brown, ID No. 2108008637
(hereinafter, “D.I. 58”).

2
On August 24, 2022, Brown filed a Motion for Sentence

Reduction/Modification in which he argued, among other things, that he did not have

two prior violent felony convictions at the time he pled guilty.14 On October 24,

2022, the State responded to Brown’s Motion for Sentence Reduction/Modification

on the issue of his criminal history.15 On November 7, 2022, Brown filed a Reply to

the State’s Response.16 On December 6, 2022, the Court found that Brown had two

prior violent felonies at the time he committed the offenses to which he pled guilty

and denied his Motion for Sentence Reduction/Modification.17

Brown filed a subsequent Motion for Modification of Sentence on May 8,

2023, in which he sought to have the last six months of his Level V sentence

modified to six months at Level IV.18 Brown contended that a Level IV work release

program would better prepare him to reintegrate into society upon his release.19 He

further requested that the Court order him to complete the Road to Recover program

so that he would be better prepared to cope with his previous drug addiction when

released.20 On December 1, 2023, the Court granted his Motion for Modification, in

14
D.I. 30.
15
D.I. 34.
16
D.I. 38.
17
D.I. 40.
18
D.I. 46.
19
Id.
20
Id.
3
part, by ordering Defendant to complete the Road to Recover program while at Level

V.21

Brown did not appeal his sentence to the Delaware Supreme Court.

MOTION FOR POSTCONVICTION RELIEF

a. Brown’s Contentions.

On October 27, 2022, the Defendant filed a pro se Motion for Postconviction

Relief (the “Initial Motion”),22 which he later amended on January 20, 2023 (the

“Amended Motion,” and together with the Initial Motion, the “Motion for

Postconviction Relief”).23 Through both filings, Brown raises a total of seven

grounds for postconviction relief, six of which are claims of ineffective assistance

of counsel and one of which relates to the legality of his sentence. The claims for

postconviction relief asserted by the Defendant are fairly summarized as follows:

Ground One: Counsel never viewed the video surveillance evidence with
the Defendant or viewed it at all;

Ground Two: Counsel sent a private investigator to view the video
surveillance evidence with the Defendant on two occasions, but the video which was
shown the second time was different than the first;

Ground Three: Due to counsel switching the video surveillance evidence
and/or withholding video surveillance evidence, the Defendant was coerced into
accepting the guilty plea when counsel stated that if the Defendant did not take the
plea that he “would do life in jail.”;
21
D.I. 52. Brown filed an additional motion regarding modification of his sentence which the
Court denied on February 19, 2024. D.I. 55. Brown completed his Level V sentence and was
released from incarceration to Level III probation on March 21, 2024.
22
D.I. 36.
23
D.I. 41.
4
Ground Four: Brown asserts that he was illegally sentenced to three years
at Level V for his conviction for Carrying a Concealed Deadly Weapon.24 Brown
contends that the Truth-In-Sentencing guidelines for a conviction for Carrying a
Concealed Deadly Weapon is 0 to 2 years at Level V, but that the State improperly
argued that he had two prior violent felony convictions;

Ground Five: Counsel was ineffective for failing to watch the video
surveillance evidence personally with the Defendant so that the Defendant could
discuss the inconsistencies between the video and the State’s case directly with
defense counsel;

Ground Six: Inconsistencies between the written police narrative and the
time stamps on the video surveillance evidence were not given sufficient exculpatory
weight by defense counsel; and

Ground Seven: Counsel coerced the Defendant to take the guilty plea and
assured him that he would be sentenced to two years of Level V time for his
conviction for Carrying a Concealed Deadly Weapon instead of the three years
articulated in the plea agreement because counsel and the judge knew each other and
were in good stead.

Each of these claims are discussed more fully below.

b. Rule 61 and Procedural Bars to Relief

Superior Court Criminal Rule 61 (“Rule 61”) governs the procedures by

which an incarcerated individual may seek to have his conviction set aside on the

ground that the court lacked jurisdiction or any other ground that is a sufficient

factual and legal basis for a collateral attack upon the conviction.25 That is, it is a

means by which the court may correct Constitutional infirmities in a conviction or

24
D.I. 36.
25
Super. Ct. Crim. R. 61(a)(1).
5
sentence.26 “Rule 61 is intended to correct errors in the trial process, not allow

defendants unlimited opportunities to relitigate their convictions.”27

Given that intent, before considering the merits of any claims for

postconviction relief, the Court must first determine whether there are any

procedural bars to the postconviction motion.28 Rule 61(i) establishes four

procedural bars to postconviction relief.29 Rule 61(i)(1) prohibits a motion for

postconviction relief from being filed “more than one year after the judgement of

conviction is final or, if it asserts a retroactively applicable right that is newly

recognized after the judgment of conviction is final, more than one year after the

right is first recognized by the Supreme Court of Delaware or by the United States

Supreme Court.”30 Defendant was sentenced by the Court on August 3, 2022 and

filed his Initial Motion on October 27, 2022 and his Amended Motion on January

20, 2023. Therefore, Defendant’s Motion for Postconviction Relief was timely filed.

Rule 61(i)(2) bars successive motions for postconviction relief unless certain

conditions are met.31 This is the Defendant’s first Motion for Postconviction Relief

so the procedural bar set forth in Rule 61(i)(2) is not applicable.

26
Harris v. State, 410 A.2d 500 (Del. 1970).
27
Ploof v. State, 75 A.3d 811,820 (Del. 2013).
28
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
29
Super. Ct. Crim. R. 61(i)(1)-(4).
30
Super. Ct. Crim. R. 61(i)(1).
31
Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant
is able to “pled with particularity” that (i) “new evidence exists that creates a strong inference that
the movant is actually innocent in fact of the acts underlying the charges of which he was
6
Rule 61(i)(3) and (4) provide that any ground for relief that was not previously

raised is deemed waived, and any claims that were formerly adjudicated, whether in

the proceedings leading to the judgment of conviction, in an appeal, in a

postconviction proceeding, or in a federal habeas corpus proceeding, are thereafter

barred.32 The foregoing bars to relief do not apply to a claim that the court lacked

jurisdiction or to a claim that satisfies the pleading requirements of Rule 61(d)(2).33

Brown previously raised his claim of an illegal sentence as set forth in Ground

Four with this Court. The Court rejected that claim in denying his Motion for

Sentence Reduction/Modification on December 6, 2022. As such, Ground Four was

previously adjudicated and Rule 61(i)(3) precludes Brown from raising the claim

again in this Motion for Postconviction Relief. As such, Ground Four should be

summarily dismissed.

The remaining six claims for ineffective assistance of counsel were not

previously raised by the Defendant and are not subject to default because they cannot

be asserted in proceedings leading to judgment of conviction nor raised on direct

appeal.34 Ineffective assistance of counsel claims are properly brought in a motion

for postconviction relief.

convicted” or (ii) “a new rule of constitutional law, made retroactive to cases on collateral review
by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case
and renders the conviction or death sentence invalid.” Super. Ct. Crim. R. 61(d)(2).
32
Super. Ct. Crim. R. 61(i)(3) and (4).
33
Super. Ct. Crim. R. 61(i)(3)(A)-(B).
34
State v. Jackson, 2023 WL 4104290, at *4 (Del. Super. Ct.)
7
c. Standard of Review Governing Ineffective Assistance of Counsel
Claims.

To succeed on an ineffective assistance of counsel claim, a defendant must

meet the two-pronged test set forth in Strickland35 by showing that: (1) counsel

performed at a level ‘below an objective standard of reasonableness’36 and that, (2)

the deficient performance prejudiced the defense.37 Failure to prove either prong

will render a claim insufficient.38

Under the first prong, judicial scrutiny is highly deferential. Courts must

ignore the distorting effects of hindsight and proceed with a strong presumption that

counsel’s conduct was reasonable.39 The Strickland Court explained that when

deciding an actual ineffectiveness claim, the court must judge the reasonableness of

counsel’s challenged conduct on the facts of the particular case, viewed as of the

time of counsel’s conduct.40

Under the second prong, in order to establish prejudice, the movant must show

that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different. A reasonable probability is

35
Strickland v. Washington, 446 U.S. 668 (1984).
36
Id. at 688.
37
Id. at 694.
38
Id. at 688.
39
Id. at 689.
40
Id. at 690.
8
a probability sufficient to undermine the confidence in the outcome.”41 In other

words, not every error that conceivably could have influenced the outcome

undermines the reliability of the result of the proceeding.42 The court must consider

the totality of the evidence and must ask if the movant has met the burden of showing

that the decision reached would reasonably likely have been different absent the

errors.43 “The benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversarial process

that the trial cannot be relied on as having produced a just result.”44

In the context of a plea challenge, it is not sufficient for the defendant to claim

simply that his counsel was deficient. The defendant must also establish that

counsel’s actions were so prejudicial that there was a reasonable probability that, but

for counsel’s deficiencies, the defendant would not have taken a plea but would have

insisted on going to trial.45 Thus, the Court’s analysis often begins with the second

prong because it is not necessary “to examine whether an attorney performed

deficiently if the deficiency did not prejudice the defendant.”46

41
Id. at 694.
42
Id. at 693.
43
Dale v. State, 2017 WL 443705, * 2 (Del. 2017); Strickland v. Washington, 466 U.S. 668, 695-
696 (1984).
44
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 686).
45
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hickman v. State, 1994 WL 590495
(Del.) (applying Strickland to guilty pleas).
46
Ploof v. State, 75 A.3d 811, 825 (Del. 2013).
9
The burden of proving ineffective assistance of counsel is on the defendant.47

Mere allegations of ineffectiveness will not suffice; instead, a defendant must make

and substantiate concrete allegations of actual prejudice.48 With this framework in

mind, the Court turns to Brown’s claims of ineffective assistance of counsel.

1. Video Surveillance Claims.

Grounds One, Two, Five and Six of the Motion for Postconviction Relief are

allegations of ineffective assistance of counsel relating to the way defense counsel

viewed, handled, and assessed the video surveillance evidence in this case. Brown

asserts that defense counsel failed to review any of the video surveillance evidence

in the case and, even if he had, counsel’s failure to review the video evidence with

Brown personally constituted ineffective assistance of counsel.49 Instead, defense

counsel sent a private investigator to review the video surveillance evidence with the

Defendant on two separate occasions.50 Brown asserts that the video surveillance

evidence demonstrates that he was not the shooter in the August 17, 2021 incident

and that in failing to review the video with him, Brown was unable to point out

inconsistencies between the video evidence and the State’s case directly to defense

counsel.51 In Ground Six, Brown discusses in some detail what he views as

47
Oliver v. State, 2001 WL 1751246 (Del.).
48
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
49
D.I. 36.
50
Id.
51
D.I. 41.
10
inconsistencies between the narrative prepared by the investigating officer and

certain time stamps on the video surveillance evidence, inconsistencies which he

brought to the attention of his counsel but asserts his counsel ignored. 52 Brown

further claims that defense counsel was pessimistic regarding the success the

Defendant would have if he were to go to trial on the basis of the purported

inconsistencies in the video evidence.53

Brown also asserts that the video the private investigator brought for

Defendant’s review on the first occasion was different than the video he brought with

him on the second occasion.54 Specifically, Brown alleges that at the initial viewing

of the video with the private investigator the alleged victim can be seen reaching into

his waistband, grabbing a firearm, running towards the Defendant and then

discharging the firearm.55 Brown alleges that the foregoing video evidence was

absent at the second viewing of the video.56 He further claims that the private

investigator acknowledged the differences and stated, “Demetrius, I think you need

to go to trial” and “I’m not coming back over here to show any more videos.”57

In his affidavit, defense counsel denies the allegation that he failed to review

the video surveillance evidence and states that he reviewed it multiple times over the

52
D.I. 41.
53
D.I. 36.
54
Id.
55
Id.
56
Id.
57
Id.
11
course of several months.58 Defense counsel further asserts that he discussed the

contents of the video surveillance evidence at length with the Defendant in person,

over the phone and by Zoom.59 Defense counsel concedes that he made

arrangements for the Defendant to review the video with a private investigator on

two occasions but states that the video evidence shown to the Defendant was the

same both times.60 Defense counsel further states that he discussed the purported

inconsistencies between the investigative narrative and the time stamps on the video

with the Defendant on several occasions and explained to Brown that, in his

experience throughout many years of practice, time stamps on most videos do not

match up exactly to real time.61 Defense counsel further asserts there was no

evidence on the video suggesting that the alleged victim was the actual shooter and

notes that the physical and ballistic evidence was inconsistent with the theory that

the alleged victim was the shooter.62

Based upon their contradictory statements, it is abundantly clear to the Court

that defense counsel and Brown viewed the video surveillance evidence quite

differently. Brown viewed the video surveillance evidence as being exculpatory

58
D.I. 43.
59
Id.
60
Id.
61
Id.
62
Id. Counsel also asserts that the statements allegedly made to the Defendant by the private
investigator were born of frustration “because the investigator felt that Defendant was being
combative and unreasonable with him and not listening to what was being said to him. No one
thought that Defendant should have gone to trial in this case.”
12
whereas counsel did not. At core, the two differed on the strength of Brown’s case

considering the totality of the evidence.

The fact that defense counsel viewed the evidence differently than the

Defendant, does not, however, automatically make counsel’s assistance ineffective

in advising Brown. For Brown to succeed on his ineffective assistance of counsel

claims relating to the video surveillance evidence, he must demonstrate that

counsel’s handling and assessment of the evidence prejudiced his defense. For the

reasons that follow, the Court finds that Brown has not demonstrated such prejudice.

In order to access whether the Defendant was prejudiced by counsel’s actions,

the Court must consider whether Brown would “have received a more favorable

verdict relative to the plea into which [he] entered.”63 After a thorough review of

the record, the Court cannot conclude that there is a reasonable probability that

Brown would have received a more favorable outcome than the plea agreement had

he gone to trial on the evidence.

Brown was facing charges for (i) Aggravated Menacing, (ii) Reckless

Endangering First Degree, (iii) two counts of Possession of a Firearm During the

Commission of a Felony, (iv) Possession of a Firearm by a Person Prohibited, (v)

Carrying a Concealed Deadly Weapon, and (vi) two counts of Criminal Mischief.

The State had video evidence showing Brown in the area of the shooting at the time

63
State v. Jackson, 2023 WL 4104290, at *6 (Del. Super.).
13
it occurred. The State also possessed ballistic evidence which matched the firearm

used at the scene of the crime to a firearm recovered at the residence of one of the

Defendant’s family members. The record does not suggest nor does the Defendant

argue that any of the evidence should have been suppressed or would otherwise have

been inadmissible at trial. While the State faced challenges with witness cooperation

in this case, there is nonetheless a reasonable probability that the Defendant would

have been convicted of at least one of the violent felonies for which he was

indicted.64 If convicted at trial, Brown faced a potential sentence of 20 years of

minimum mandatory time and as much as 103 years if convicted of all charges.65

And, if Brown were determined to be a habitual offender by the Court, he faced a

range of 83 years to up to life in prison if convicted of all charges.66 As the Court’s

decision on the Defendant’s Motion for Sentence Reduction/Modification showed,

Brown’s prior felony convictions and thus his person prohibited status were not in

question.

Based on his assessment of the weight of the evidence against the Defendant,

defense counsel concluded that the most prudent defense strategy was to attempt to

reduce the significant amount of jail time Defendant faced if convicted at trial by

negotiating a plea agreement. Such a strategy was “objectively reasonable” under

64
See D.I. 45 at 3; D.I. 58 at 21.
65
D.I. 43
66
Id.
14
the circumstances given the significant number of indicted felony charges the

Defendant was facing and the strength of the State’s evidence. “If an attorney makes

a strategic choice ‘after thorough investigation of law and facts relevant to plausible

options’ that decision is ‘virtually unchallengeable’ and strategic choices made after

less than complete investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on investigation.”67

Brown ultimately pled guilty to Aggravated Menacing, Reckless Endangering

First Degree and Carrying a Concealed Deadly Weapon and was sentenced to 3 years

of Level V time, which is a substantially better result than the potential life

imprisonment that Defendant could have faced had he proceeded to trial and been

unsuccessful. As such, Brown has failed to demonstrate that counsel’s assessment

and handling of the video surveillance evidence prejudiced his defense.

Accordingly, the Court finds that his claims of ineffective assistance of counsel with

respect to the video surveillance evidence are without merit.

2. Coerced Guilty Plea; Unfulfilled Plea Agreement

Grounds Three and Seven of the Motion for Postconviction Relief set forth

allegations of ineffective assistance of counsel relating to the terms of the plea offer

and Brown’s acceptance thereof. In Ground Three, Brown claims that defense

67 Ploof v. State, 75 A.3d 840, 852 (Del. Super. 2013) (citing Strickland v. Washington, 466 U.S.

668, 690-91 (1984).

15
counsel “switched” the video surveillance evidence and coerced him into taking the

guilty plea by telling him that if he did not, he “would do life in jail.” 68 In Ground

Seven, Brown alleges that defense counsel assured him that he would be sentenced

to two years at Level V for pleading guilty to the charge of Carrying a Concealed

Deadly Weapon because defense counsel knew the judge well and she was fair and

reasonable.69

Defense counsel denies that he switched and/or withheld video evidence from

the Defendant but admits that he advised Brown on many occasions of the potential

sentence he might face if he were convicted at trial.70 With respect to Ground Seven,

counsel denies the assertion made by Brown regarding counsel stating he was in

favor with the sentencing judge and states that he never promised or suggested that

the Defendant would be sentenced to less than the agreed upon recommendation of

three years of Level V time.71 Counsel notes, however, that Brown was concerned

that the Court might sentence him to more time than that agreed upon by the parties.72

In an effort to assuage those concerns, counsel states that he advised Brown that he

had a platonic relationship with a different trial judge (who had been originally

scheduled to accept the Defendant’s plea) for a number of years.73 Counsel states

68
D.I. 36.
69
Id.
70
D.I. 43.
71
Id.
72
Id.
73
Id.
16
that he shared that information regarding his relationship with the trial judge to try

to assure Brown that he knew her well, that she was reasonable and unlikely to depart

from the agreed upon recommendation.74

As a threshold matter, it must be noted that Brown has not provided the Court

with any actual evidence that defense counsel “switched” or otherwise altered or

manipulated the video evidence to his detriment. Nor has he presented a rationale

as to why counsel would do so. The Court will not heed such bold-faced assertions.

Brown’s contention that defense counsel coerced him into taking the plea is

equally unavailing. The statement by defense counsel regarding the likelihood the

Defendant “would do life in jail” if convicted of all or only a portion of the charges

he was facing accurately reflected Defendant’s circumstances. Given the accuracy

of the statement, it cannot be reasonably construed as tantamount to coercion.

Rather, it shows that counsel was providing competent legal representation. As this

Court has held, “it is entirely appropriate for Defendant’s counsel to explain that if

the offered plea was rejected, Defendant was unlikely to be successful at trial and

could receive a possible life sentence.”75

74
Id.
75
Skyes v. State, 2012 1413958, at *5.
17
Moreover, Defendant’s own words in his plea colloquy as well as his executed

Plea Agreement and Truth-in-Sentencing Guilty Plea Form bely his allegations as

set forth in Grounds Three and Seven of his Motion for Postconviction Relief. “[A]

defendant's statements to the Superior Court during the guilty plea colloquy are

presumed to be truthful.”76 Where the defendant has signed his Truth-in-Sentencing

Guilty Plea Forms and has answered at the plea colloquy that he understands the

effects of the plea, the defendant must show by clear and convincing evidence that

he did not sign those forms knowingly and voluntarily.77

During the guilty plea colloquy, the Defendant gave sworn testimony

indicating, inter alia, that he (i) freely and voluntarily decided to plead guilty to the

charges listed in the plea agreement, (ii) had not been threatened or forced to plead

guilty by his counsel, the State or anyone else, and (iii) had not been promised

anything not stated in his written plea agreement or otherwise promised what his

sentence would be.78 After some initial hesitation regarding whether he was satisfied

with his counsel’s representation, the Defendant affirmed that he was knowingly

accepting his plea because he understood the risks of proceeding to trial and he was,

76
Scarborough v. State, 938 A.2d 644, 650 (Del. 2007).
77
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
78
D.I. 58 at 7-9. Brown likewise testified that he understood that the plea agreement was only a
recommendation and that the Court was not bound by its terms. Id. at 17.
18
in fact, guilty of the charges to which he pled.79 Based on Brown’s sworn testimony,

the Court found his plea to be knowing, intelligent and voluntary.80

Absent clear and convincing evidence to the contrary, Brown is bound by his

representations during the guilty plea colloquy and the Truth-in-Sentencing Guilty

Plea Form.81 Brown provides no such evidence to the contrary. He does not assert

the plea colloquy was defective. Nor does he contend that his answers were

untruthful. For these reasons, the Court cannot find defense counsel’s alleged

statements to be so prejudicial that there was a reasonable probability that, but for

counsel’s alleged deficiency, the Defendant would not have taken the plea.

79
Id. at 10-12, 18-19. During the plea colloquy, Defendant stated “I apologize. Like I said, I’m
knowingly accepting this plea today. I can’t gamble with my life and face 85 years . . .” Id. at 12.
80
Id. at 20.
81
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).

19
CONCLUSION

After a thorough review of the record, the Court concludes that the claims set

forth in the Motion for Postconviction Relief are either procedurally barred or

without merit. Ground Four asserting an illegal sentence is procedurally barred as

it was previously raised and adjudicated by this Court. The remaining six claims for

ineffective assistance of counsel likewise fail on the merits and are not supported by

the record. For all the foregoing reasons, the Defendant’s Motion for Postconviction

relief should be DENIED.

IT IS SO RECOMMENDED.

/s/ Janine M. Salomone
The Honorable Janine M. Salomone

20

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10465577. Public record. Not legal advice.