IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
Plaintiff, )
)
V. ) Cr. Action Nos. 85005694DI and
) 30306270DI
MICHAEL AMES, )
)
Defendant. )

Submitted: August 2, 2016
Decided: November 1, 2016

COMMISSIONER’S REPORT AND RECOMMENDATION
THAT DEFENDANT’S MOTION TO AMEND SHOULD BE GRANTED,
DEFENDANT’S AMENDED MOTION FOR POSTCONVICTION
RELIEF SHOULD BE DENIED AND COUNSEL’S MOTION
TO WITHDRAW SHOULD BE GRANTED

Katherine C. Butler, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Christopher S. Koyste, Esquire, Law Offlces of Christopher S. Koyste, LLC, 709
Brandywine Blvd, Wilmington Delaware 19809, appointed counsel for Defendant.

Michael Ames, J ames T. Vaughn Correctional Center, Smyrna, Delaware.

MAYER, Commissioner

This 20th day of October, 2016, upon consideration of Defendant’s Motion to
Amend, Defendant’s (Amended) Motion for Postconviction Relief, and counsel’s
Motion to Withdraw as Counsel Pursuant to Rule 6l(e)(6), it appears to the Court
that:

BACKGROUND, FACTS AND PROCEDURAL HISTORY

1. Defendant, Michael Ames, Was convicted of Burglary Second Degree on
October 8, 1980,1 again convicted of Burglary Second Degree on December 20,
1982,2 and then later entered a guilty plea to Burglary Third Degree on January 29,
1986. 3

3. On September 13, 1993, Defendant was once again indicted on several
charges4 and he eventually pled guilty to Burglary Second Degree on October 7,
1993. At that time, the Plea Agreement noted that the State Would recommend
habitual offender mandatory sentencing and that Defendant reserved the right to
argue that the provisions were inapplicable

4. On March 23, 1994, the Court held a Habitual Offender and Sentencing
Hearing in the 1993 Case at Which time Defendant Was declared a habitual

offender pursuant to ll Del. C. §4214(b), having been convicted of Burglary

 

1 Cr. A. NO. 1N80-09_0239.
2 cr. A. NO. 1N82-09_0323.
3 Cr. A. No. IN85-09-0199/Case ID: 85005694DI (hereinafter the “1985 Case”).

4 Cr. A. No. IN93-08-l707/Case ID: 30306270DI (hereinafter the “1993 Case”).
2

Second Degree in 1980, 1982 and 1993. He was then sentenced on the 1993
charge to life at Level 5 without the benefit of probation or parole.5

5. On December 17, 2013, Defendant, appearing pro se, filed a Motion for
Postconviction Relief.6 Defendant asserts the following grounds for relief: (i) the
trial court erred and counsel was ineffective because Defendant was not given a
proper habitual offender hearing nor was he properly informed of the severity of
the sanctions under 11 Del. C. §4214(a); and (ii) the trial court abused its
discretion and counsel was ineffective when the State failed to provide Defendant
with some form of behavioral modification treatment before giving him a life
sentence.

6. 0n July 21, 2015, Defendant filed a Motion to Amend to add a third
argument that his rights were violated because he was declared a habitual offender
for a felony that was not qualified as violent and the criminal law at issue is so
vague that it failed to give him notice of the conduct to be punished

7. Defendant also filed a Motion for Appointment of Counsel and Christopher

S. Koyste, Esquire was appointed 7

 

5 March 23, 1994 Transcript (hereinafcer “HO-S Tr. at _”).

6 1993 Case DI # 14. Unless otherwise noted, all references to Superior Court Criminal Rule 61
herein shall be pursuant to the rule that was in effect at the time the motion was filed.

7 At the time that Defendant’s motion for postconviction relief was filed, Superior Court
Criminal Rule 61(e)(1) provided that “[t]he court Will appoint counsel for an indigent movant’s
first postconviction proceeding.”

8. On February l, 2016, Mr. Koyste filed a Motion and Memorandum in
Support of Motion to Withdraw as Counsel Pursuant to Rule 61(e)(6).8 Mr. Koyste
asserts that after having reviewed all available materials for this matter, he has
concluded that there are no meritorious grounds that may be raised. Defendant
filed a response to the motion to withdraw.9

9. The record was enlarged and Defendant’s trial counsel submitted an
Affidavit responding to Defendant’s ineffective assistance of counsel claims.10
Thereafcer, the State filed a response to the motion for postconviction relief which
included a response to Defendant’s proposed “amended” arguments11

ANALYSIS OF DEFENDANT’S RULE 61 MOTION

10. Superior Court Criminal Rule 61(b)(6) provided that “[a] motion may be
amended as a matter of course at any time before a response is filed or thereafter
by leave of court, which shall be freely given when justice so requires.”
Defendant’s Motion to Amend should be granted “as a matter of course” because it

Was filed prior to the State having filed a response.

 

8 1985 case, Di #37, 38; 1993 Case, Di # 22, 23.
9 1985 case, Di # 39.
10 1993 Case, DI # 25.

ll 1993 Case, DI # 26. Defendant was afforded an opportunity to file a reply brief (See 1993
Case DI # 24) but neglected to do so.

11. With respect to the (amended) motion for postconviction relief, pursuant to
former Superior Court Criminal Rule 61(d)(4) the motion may be summarily
dismissed because it plainly appears from the record in the case that the motion is
procedurally barred as untimely and movant is not entitled to relief. As such, the
Court should not consider the merits of the claims.12

12. Superior Court Criminal Rule 61(i)(1) imposes the condition that a motion
for postconviction relief may not be filed more than one year after the judgment 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.13 Defendant has not asserted an entitlement to relief based on a
newly recognized right. Defendant’s 1993 conviction became final on April 24,
1994,14 however his motion was not filed until more than nineteen (19) years later,

which is significantly past one (1) year after the judgment became final.

 

12 Younger v. State, 580 A.2d 552, 554 (Del. 1990); Paul v. State, 2011 WL 3585623 (Del., Aug.
15, 2011), at *1 (“Delaware law provides that the Superior Court must first consider Whether the
defendant has satisfied the procedural requirements of Rule 61 before considering the merits of
his postconviction motion.”)

13 super. Cr. Crim. R. 6i(i)(i).

14 Pursuant to Superior Court Criminal Rule 6l(m)(1), a judgment of conviction is final for the
purpose of this rule within 30 days after the Superior Court imposes sentence if the defendant has
not filed a direct appeal. The Defendant herein did not file a direct appeal.

5

Therefore, the motion was filed outside the applicable time limit and Defendant’s
claims, at this late date, are time-barred.

13. At the time of the filing of the motion though, there was an exception to the
procedural bars. The bars to relief did not apply to a claim that the court lacked
jurisdiction or to a colorable claim that there was a miscarriage of justice because
of a constitutional violation that undermined the fundamental legality, reliability,
integrity or fairness of the proceedings leading to the judgment of conviction.15
Defendant does not assert that the Court lacked jurisdiction and therefore that
exception does not apply.

14. Defendant has also failed to meet the remaining exception to the procedural
bar. Defendant first argues that he was entitled to some form of behavioral
modification treatment before having been sentenced as a habitual offender. A
defendant is only entitled to “some chance for rehabilitation” which means some
period of time having elapsed between sentencing on an earlier conviction and the
commission of the offense leading to the later felony conviction.16 In this case,
there was a period of time between the 1980, 1982 and 1993 convictions and thus

Defendant was in fact afforded a chance for rehabilitation

 

15 super. ct. Crim. R. 61(1)(5).

16 Eada'y v. State, 1996 WL 313499, at *2 (Del. May 30, 1996); See also, Mayo v. State, 2016
WL 2585885, at *1 (Del. Apr. 21, 2016) (denying relief because defendant had some chance for
rehabilitation between convictions in 2000, 2004 and 2009).

15. Defendant’s next argument refers to ll Del. C. §4214(a), however, it is clear
from the transcript that at the time of sentencing, the Court applied 11 Del. C.
§4214(b).17 At the time of sentencing, this statute provided that “Any person who
has been two times convicted of a felony. . .and who shall thereafter be convicted of
a subsequent felony. . .is declared to be a habitual criminal, and the court in which
such third or subsequent conviction is had, in imposing sentence, shall impose a
life sentence upon the person so convicted. . .” 11 Del. C. §4214(b).

16. At the hearing to determine habitual offender status, Defendant was
informed of the purpose of the hearing, provided with copies of the court’s records,
and the certified copies, indicating two previous convictions for Burglary Second
Degree in addition to the conviction in the 1993 Case.18 Defendant admitted to
having been incarcerated for two other offenses but could not remember the details
of the previous charges. At that time, Defendant also argued - as he does here -
that he should have been afforded an opportunity for rehabilitative programs and
that a life sentence was too strict considering he had no violent history.19

17. Defendant has failed to offer any reasonable basis to contest the Habitual

Offender determination The certified court records supported a history of multiple

 

11 Ho-s Tr. at p. 7.
18 Ho-s Tr. at p.4-6.

19 HO-S Tr. at p. 7.

convictions of Burglary Second Degree. Under ll Del. C. §4214(b), at that time,
the Court had no discretion or ability to impose a sentence of less than life in
prison. Therefore, the Court did not abuse its discretion and trial counsel was not
ineffective when Defendant was sentenced.

18. Defendant’s latest argument is that 11 Del. C. §4214(b) is void for
vagueness. A statute is void for vagueness if it does not provide sufficient
definitiveness such that an ordinary person can understand what conduct is
prohibited or if it lends itself to arbitrary or discriminatory application20
Defendant has not provided any argument to support a finding that the statute was
arbitrary or discriminatory in application21 Defendant was advised by trial counsel
as to the effect of the plea of guilty and the implications of ll Del. C. §4214(b).22
In addition, the Court explained the statute’s possible application to Defendant’s
plea.23 Defendant cannot reasonably say that the statute was vague or that he
lacked an understanding Further, the Delaware Supreme Court has held that the

constitutionality of the Delaware habitual offender statute was well-settled and the

 

20 Kolender v. Lawson, 461 U.s. 352, 357 (1983).

21 See Ana’erson v. State, 2015 WL 9283845, at *2 (Del., Dec. 18, 2015) (defendant convicted of
Burglary in the Third Degree failed to cite relevant authority to support contention that statute
was unconstitutionally vague and relief was denied).

22 February l, 1994 Guilty Plea Transcript at p. 2 (hereinafcer “Plea Tr. at ”). The State also
notified the Court, with Defendant present, of its position that the Defendant was a habitual
offender under the mandatory section due to two prior burglary convictions. Id. at p. 4.

23 Plea Tr. at p. 3.

United States Supreme Court has upheld the principle that formed a basis for the
legislation24 The Delaware Supreme Court has likewise dismissed arguments that
the statute is “unconstitutionally vague” and differentiated the United States
Supreme Court decision in Johnson v. United States that Defendant relies on
here.25

19. Furthermore, Defendant does not contest the Burglary Second Degree
conviction, rather he is attacking the habitual offender finding and the sentence to
life in prison.26 In consideration of the above, Defendant has failed to demonstrate
a colorable claim that there was a miscarriage of justice because of a constitutional
violation that undermined the fundamental legality, reliability, integrity or fairness
of the proceedings leading to the judgment of conviction.

20. Defendant’s claims of ineffective assistance of counsel should also be
denied. In order to prevail on an ineffective assistance of counsel claim, a
defendant must show that his counsel’s representation fell below an objective

standard of reasonableness and the deficiencies in counsel’s representation caused

 

24 Johnson v. S¢a¢e, 2008 wL 5191835, at *i (Del., Dec. ii, 2008) citing Williams v. S¢a¢e, 539
A.2d 164, 180(1)@1. 1988); Ewing v. Calzfomia, 538 U.s. ii, 30 (2003).

25 Mayo v. State, 2016 WL 2585885, at *l, citing Johnson v. United States, 135 S. Ct. 2551
(2015).

26 To the extent Defendant is attacking his sentence, Defendant Was required to comply With
Superior Court Criminal Rule 35.

the defendant actual prejudice.27 When a defendant has plead guilty, he must show
that counsel’s actions were so prejudicial that there is a reasonable probability that,
but for counsel’s errors, the defendant would not have plead guilty and would have
insisted on going to trial.28 Defendant must overcome a strong presumption that
counsel’s conduct was reasonably professional under the circumstances29

21. Defendant contends that counsel did not advise him of the severity of the
punishment if he plead guilty. However, Defendant’s argument is directly
contradicted by the transcript from the plea hearing During the hearing, counsel
stated: “He also is concerned about the sentencing because he has been told by me
through the State that he’s eligible for mandatory life as [a] habitual offender.”30
Likewise, the Plea Agreement, signed by Defendant, indicated he was eligible for
habitual offender status. At the hearing, the Court advised Defendant of his

“...potential status as habitual offender” and then allowed a ten minute break for

Defendant to consider his decision.31 Defendant was advised of his constitutional

 

27 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hitchens v. State, 757 A.2d 1278
(Del. 2000).

28 State v. Hess, 2014 wL 6677714, at * 6 (Dei. super., Nov. 20, 2014) (citations emitted).

19 State v. Wrigh¢, 653 A.2d 288, 293-94 (Dei. super. 1994) (citations Omiued).

30 Plea Tr. at p. 2. The State also notified the Court, With Defendant present, of its position that
the Defendant Was a habitual offender under the mandatory section due to two prior burglary

convictions. Id. at p. 4.

31 Plea Tr. at p. 3.

10

rights.32 The Court questioned Defendant as to his understanding of the possible
sentence and asked “Do you understand that if you are determined by the Judge to
be a habitual offender that you have the possibility of being sentenced to up to life

?”33 Defendant responded “yes.”34 Defendant’s argument is

Imprisonment
therefore without merit.

22. Defendant also argues generally that counsel was ineffective and if he had
not pled guilty the outcome would be different Defendant does not dispute that he
committed the acts giving rise to the plea of guilty to Burglary Second Degree in
the 1993 Case. 35 At the Plea Hearing, counsel noted that Defendant did not want
to “waste” the Court’s time and acknowledged he was found inside the house,
without permission, and had a VCR with him at the time.36 Despite this,

Defendant was advised by the Court that he had the right to proceed to trial and the

jury was prepared to go forward.37 By pleading guilty, Defendant waived the right

 

32 Plea Tr. at p. 5, 8-9.
33 Id. at p. 10.
34 Id.

35 Windsor v. State, 2015 WL 5679751 , at *3 (Del., Sept. 25, 2015) (holding that absent clear
and convincing evidence to the contrary, defendant is bound by his sworn statements).

36 Plea Tr. at p. 2.

37 Id. at p. 3.

11

to challenge the State’s evidence.38 Defendant acknowledged that he fully
understood the charges against him and that he understood the consequences of
pleading guilty.39 A review of the Guilty Plea Agreement, Guilty Plea Transcript,
Truth-in-Sentencing forrn, and Habitual Offender-Sentencing Transcript, show no
anomalies. The Court engaged in a detailed colloquy with Defendant that covered
all necessary aspects of the waiver of Defendant’s rights and the Court confirmed
that the guilty plea was made knowingly and voluntarily. In consideration of the
facts and circumstances herein, Defendant has failed to offer any basis for
reconsideration of the plea or that the outcome of the proceedings would have been
different if he had not pled guilty to the charge. Defendant has failed to rebut the
presumption of reasonable professional conduct under the circumstances 40
MOTION TO WITHDRAW AS COUNSEL

23. Mr. Koyste moves to withdraw as counsel to Defendant pursuant to current
Superior Court Criminal Rule 61(e)(6)41 which provides that “[i]f counsel

considers the movant’s claim to be so lacking in merit that counsel cannot ethically

 

38 State v. Matthews, 2016 WL 354875 (Del. Super., Jan. 27, 2016) (denying motion for
postconviction relief When defendant pled guilty and later attacked lack of chemical test report).

39 Plea Tr. at p. 8-10.

40 See also, Brown v. State, 108 A.3d 1201 (Del. 2015) (affirming denial of request for new trial
on the basis that defendant pled guilty and waived certain constitutional rights).

41 Superior Court Criminal Rule 61(e)(2) applied to motions to withdraw at the time of the filing

of the motion for postconviction relief. The rule is almost identical to the current rule and does
not affect the decision herein.

12

advocate it, and counsel is not aware of any other substantial grounds for relief
available to the movant, counsel may move to withdraw.” Mr. Koyste submitted a
memorandum and numerous exhibits in support of the relief requested The
motion outlines counsel’s efforts to access Defendant’s records, and his review of
the dockets, Defendant’s Motion for Postconviction Relief, the transcripts from the
hearings, the guilty plea agreement, and the habitual offender motion.

24. Having reviewed the record, and any applicable law, counsel concluded that
Defendant’s claims lacked merit and could not be ethically advocated Mr. Koyste
also appears to have thoroughly considered any possible claims and was not able to
present any additional claims on Defendant’s behalf. In his response, Defendant
argues there was no colloquy regarding the crimes that were considered at his
sentencing hearing. This argument is meritless as the transcript clearly
demonstrates that the previous Burglary charges were sufficiently discussed42

Mr. Koyste’s motion meets the standard and should be granted

 

‘13 Ho-s Tr. at p. 2-6.

13

For all the foregoing reasons, Defendant’s Motion to Amend should be
GRANTED, Defendant’s (Amended) Motion for Postconviction Relief should be

DENIED, and, the Motion to Withdraw as Counsel should be GRANTED.43

IT IS SO RECOMMENDED.

/`;C§A_

\CUTrii‘l‘Ti“ssi'o/ner Katharine L. Mayer

oc: Prothonotary

cc: Christopher S. Koyste, Esquire
Katherine C. Butler, Esquire
Michael D. Ames

 

43 To the extent Defendant believes he has a right to reconsideration of his sentencing as a result
of modifications to 11 Del. C. §4214 and the sentencing of habitual offenders, Defendant should
contact the Office of Defense Services (formerly the Office of the Public Defender).

14