IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1411011704 and ) 1401016042 ) RYAN BRISCOE , ) ) Defendant. )

Submitted: April 8 , 2015

Decided: July 20 , 2015
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED . Mark A Denney , Esquire, Delaware Department of Justice , 820 N. French St. 7 th Floor, Criminal Division, Wilmington, Delaware, 19801 , Attorneys for the State

. Thoams A. Foley , Esquire, Attorney at Law , 1905 Delaware Avenue, Wilmington, Delaware, 19806 , Attorneys for Defendant.

MANNING , Commissioner1 This 20 th day of July , 20 1 5 , u pon co nsideration of defendant Ryan Briscoe’s
Motion for Postconviction Relief , the Court finds the following:
FACTS AND PROCEDURAL HISTORY On November 12, 2013, Briscoe was shot by unidentified intruders during a home
inva sion at his residence (a boarding house) and transported to a hospital by a friend. After police spoke with Briscoe at the hospital they responded to the crime scene where they located a loaded 9 millimeter handgun, marijuana and 96 clear plastic bags of heroin
in a hallway clos et adjacent to his bedroom . On January 30, 2104 , Briscoe was arrested and charged with, inter alia, Drug Dealing, Possession of a Firearm During the Commission of a Felony and Possession of a Firearm and Ammunition by a Person
Prohibited. After his arres t, Briscoe was released on bond and retained Mr. Foley to represent him ( Defense C ounsel )

. Briscoe was indicted on March 17, 2014 (case ID #1401016042). Trial was initially scheduled for September 23, 2014, but was
reschedule d twice, until December 4, 20 14. In preparation for trial, Defense C ounsel
filed numerous motio ns with the Court, including a motion to sever, motion to suppress statements, motion in limine to exclude DNA evidence , and finally, a motion related to
the on
- goi ng scandal at the Office of the Chief Medical Examiner. 1 While Briscoe was pending tr ial in case ID #1401016042, he was arrested on November 19, 2004

— again for Drug Dealing, Possession of a Firearm During the Commission of a felony and other related charge s (case ID # 1411011704) . It turns out,
that while out on bond for the first arrest , Briscoe was the target of a heroin investigation by police at his new residence. Police, utiliz ing a confidential informant, made two controlled buys from his residence in October and November of 2014. Police

1 Aff. of Def. Counsel.2 subsequently executed a search warrant on November 19 , 2014, whereby Briscoe was
located in the residence and arrested . Inside the residence, in a bed room determined to be Briscoe’s, police located over 3,900 bags of heroin and a loaded . 32 caliber firearm. Per the arrest warrant, Briscoe confessed to possessing both the heroin and the firearm, telling police that the females also inside the apartment “had nothing to do with it.” 2
As if Defense C ounsel did not have a tough enough row to hoe al ready, Briscoe was subject to sentencing as a Habitual Offender under 11 Del. C . § 4214 (a) and (b) due to his prior convictions. Briscoe had previously been convicted of Trafficking in Controlled Substances (1991), Possession with Intent to Deliver a Narcotic (2010),
Deliver y of a Schedule II Narcotic (1994), Possession or Distribution of a Controlled Substance within 300 feet of a Park (1999), and Maintaining a Dwelling or Vehicle for Keeping a Controlled Substance (1991). 3 Simply put, if Briscoe gambled by going to
trial on either case and lost, he faced the prospect of a mandatory life sentence if convicted of any of the violent felonies enumerated under § 4214(b) that he was charged
with

. In light of this situation, Defense C ounsel quickly stru ck a deal with the State allowing Briscoe to plead guilty to one charge from each case, a ten year Level V recommendation, and most importantly, the State would not seek to declare Briscoe a
Habitual Offender under § 4214(a) or (b). Briscoe entered his gu ilty plea and was sentenced to the recommended ten years at Level V , followed by probation, on December 4, 201 4

— the day he was scheduled to start trial on case ID # 1401016042.

2 Id

. 3 Immediate Sentencing Form.3 DEFENDANT’S RULE 61 CLAIM
Briscoe timely filed his first pro se motion for postconviction relief with this Court on April 8, 2015. 4 Briscoe ’s single claim for p ostconviction relief , in its entirety,
is: The defendant did not enter an intelligent , knowing and voluntary plea as the Sas [sic] a result o f ineffective assistance of counsel for failing to file [sic] suppression motion

. 5
LEGAL STANDARD To prevail on an ineffective assistance of counsel claim, a defendant must meet
the two

- pronged Strickland test by showing that: (1) counsel performed at a level “below an objectiv e standard of reasonableness” and that, (2) the deficient performance prejudiced the defense. 6 The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requi res the defendant to show that there is a reasonable probability that, but for defense counsel’s unprofessional errors, the outcome of the proceedings
would have been different. 7 When a court examines a claim of ineffective assistance of counsel, it may

a ddress either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong. 8 Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual pr ejudice. 9 An error by defense

4 Briscoe did not file an appeal with the Delaware Supreme Court. 5 Briscoe’s Motion was supported by an extensive, typed, 22 page Memorandum of Law. 6 Strickland v. Washington , 466 U.S. 668, 687

- 88, 694 (1984). 7 Id. 8 Id. at 697. 9 Younger v. State , 580 A.2d 552, 556 (Del. 1990).4 counsel, even if professionally unreasonable, does not warrant setting aside the judgment of conviction if the error had no effect on the judgment. 10 Although not insurmountable, the Strickland standard is highly demanding and leads to a strong presumption that defense counsel’s conduct fell within a wide range of reasonable professional assistance. 11 Moreover, there is a strong presumption that defense counsel’s conduct constituted sound trial strategy. 12 In considering post

- t rial attacks on counsel, Strickland cautions that trial counsel’s performance should be reviewed from the defense counsel’s perspective at the time decisions were being made. 13 It is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable. 14 A fair assessment of attorney performance requires that every effort be made to eliminate the distorting efforts of hindsight. Second guessing or “Monday morning qu arterbacking” should be avoided. 15 The United States Supreme Court recognized that there are countless ways to provide effective assistance in any given case. The United States Supreme Court cautioned that reviewing courts must be mindful of the fact that unlike a later reviewing court, trial counsel observed the relevant proceedings, knew of materials outside the record, and interacted with his client, opposing counsel, and the judge. 16 Even the best criminal defense attorneys would not defend a particular client in the same way. Consequently, defense counsel must be given wide latitude in making

10 Strickland , 466 U.S.at 691. 11 Albury v. State , 551 A.2d 53, 59 (Del. 1988); Salih v. State , 2008 WL 4762323, at *1 (Del. Oct. 31, 2008). 12 Strickland at 466 U.S. 688

- 689. 13 Id

. 14 Id 15 Id

. 16 Harrington v. Richter , 562 U.S. 86 , 105

- 6 (2011).5 tactical decisions. 17 Counsel’s representation must be judged by the most deferential of standards. There is a strong presumption that defense counsel’s conduct co nstituted sound trial strategy. 18
ANALYSIS At the outset, the Court notes that while Briscoe’s motion is couched as one of ineffective assistance of counsel, the goal of his motion is really to withdraw his guilty plea. Nevertheless, Brisoce’s claim is governed by Superior Court Criminal Rule 61. Before examining the merits of Briscoe’s claim, the Court will first examine it in light of the procedural requirements imposed under Rule 61(i). Finally, a reviewing court need
not consider the merit s of a Rule 61 motion if the motion is procedurally barred. 19 The thrust of Briscoe’s claim is that had Defense Counsel done more investigation and moved to suppress ev idence from the November 19, 201 4 arrest, the outcome of his

cases would have been diffe rent

— somehow

. Conversely, Defense Counsel’s Affidavit paints a much different picture. It is
clear that Defense Counsel is an experienced criminal defense attorney who was fully prepared to litigate, and if necessary , go to trial on the first arrest. H owever, while Defense Counsel and Briscoe may have reasonably expected a “win” at trial on the first case, the proverbial rug was pulled out from under them with Briscoe’s second arrest

—

on new and even more serious charges

— on the eve of trial. As Defens e Counsel succinctly put it, the first case was based on “constructive possession” and Briscoe had a “viable trial defense,” the second case put Briscoe in “checkmate.” 20

17 Id

. 18 Strickland, 466 U.S. at 689; Harrington v. Richter , 131 S.Ct. 770 (2011). 19 Younger , 580 A.2d at 554

. 20 Aff. of Def. Counsel.6 Defense Counsel, to his credit, moved quickly, contacting the State in an attempt

to r esolve bot h cases. Defense Counsel stated that at the time of the p lea on December 4, 2014, he had reviewed the warrant for t he November 19, 2014 arrest, and was confident that he was able to “provide intelligent counsel to Mr. Briscoe.” Addi tionally, De fense
Counsel stated that he was “never asked [by Briscoe] to pull cell phone records, video surveillance or raise any possible Franks issues related to the search warrant.” Perhaps most significant to the predicament Briscoe found himself in after the

s ec ond arrest, the State indicated that the plea offer would be “withdrawn in the event Mr. Briscoe went to trial regarding the November 2013 set of charges.” 21 While Briscoe may have had more than a fighting chance in front of a jury on the first case, the S tate
had just been dealt a new set of card and knew how to play them

. Clearly, t he State
intended to leverage the more favorable facts (from its point of view) of the second arrest
to avoid a trial and resolve both cases.
To this end, Defense Counsel stated that he “communicate d in person [with] Mr. Briscoe (now detained) who clearly understood and shared counsel’s view, that [he] would have to prevail at trial on both cases in order to obtain a better result.”
Strickland requires relief only if, but f or counsel’s unprofessional errors, claimant
can show a reasonability probability that the outcome would have been different

. Briscoe’s argument, supported by his 22 page Memorandum of Law, ignores the fact that his argument is speculative

— at best. As th e State aptly noted in its Response, Briscoe
had “confessed to conduct which amounted to at least 40 years of incarceration.” In the end, the Court is left convinced that not only was Defense Counsel competent in his representation , but he saved Briscoe from a life sentence, or at least a

21 Aff. of Def. Counsel.7 much longer jail sentence , by quickly assessing the strength of the second case and moving to reso lve both at the same time; as previously noted, the State’s very generous plea offer was predicated on Briscoe not going t o trial on his f irst arrest. By pleading guilty Briscoe waived any legal challenges he could have raised as to the second arrest. Because Briscoe could have raised the various legal issues he now cites, but elected not to , his claims are procedurally barred under Rule 61(i)(3). 22 Guilty Plea As the crux of Briscoe’s argument is that his guilty plea was not knowingly and intelligently and voluntarily made, an examination of the colloquy and plea paperwork is
necessary
. An examination of the guilty pl ea and sentencing transcript reveals no anomalies in the colloquy or entry of the plea. The standard Plea Agreement and Truth

- In

Sentencing Guilty Plea Forms were completed accurately . On the forms, Briscoe
checked the box to indicated that he understood his right s and agreed to waive them in exchange for accepting the State’s plea offer. During the colloquy , Defense Counsel
stated that Briscoe understood the terms o f the offer and that “[h]e waives all rights he would otherwise enjoy.” 23 Additionally, the Court asked Briscoe if he heard what Defense Counsel said and if it was correct, to which he replied “yes.” 24 Finally, Briscoe made it a point to explain to the Court that as a shooting victim himself, he “made a bad
decision” and that he never intende d any harm with the firearm he possessed.

22 Rule 61(i)( 3) Procedural Default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of the court, is thereafter barred, unless the movant shows (A) Cause for relief from the procedural defa ult and (B) Prejudice from violation of the movant’s rights. 23 Sentencing Transcript at 5. 24 Id . at 7.8 “A defendant's statements to the Superior Court during the guilty plea collo quy are presumed to be truthful.” 25 A review of the record reveals that Briscoe knowingly and intelligently waived his right to indictment in the second arrest, trial and appeal as to both cases and that he understood the penalt ies he faced by pleading guilty. Briscoe did not ask a single question of the Court n or object to anything said by Defense Counsel or the
State. There is simply noth ing in the record to rebut the presumption that Briscoe understood what he was doing when he pled guilty. 26
For the foregoing reasons, Briscoe’s Motion should be DENIED

. IT IS SO RECOMMENDED.

/s/ Bradley V. Manning BRADLEY V. MANNING , Commissioner

oc: Prothonotary cc: Defendant

25 Somerville v. State , 703 A.2d 629, 632 (Del. 1997)

. 26 It is also worth noting that this was certainly not the first time Briscoe had pled guilty, and therefore, had prior experience with the guilty plea process.