1 The applicable version of Rule 61 is that which went into effect on May 6, 2013. A copy of that version of the rule is enclosed with this decision. 1 SUPERI OR COURT OF T HE STATE OF DELAWARE RICHARD F. STOKES SUSSEX COU NTY C OUR THO USE

JUDGE 1 THE CIR CLE, SU ITE 2 GEORGET OWN, DE 19947 TELEPHON

E (302) 856-5264

February 27, 2015

Alexander W. Funk, Esquire Cu rle y & Ben to n, LLC 250 Beiser Blvd., Suite 202 Dover, DE 19904-7790 Gary R. Klaf

t SBI# 004 Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947 RE: State of De laware v. Gary R. Kla ft , Def. ID# 1302019245 R-1 DATE SUBMITTED: F ebruary 2, 2015 Dear Mr . Funk an

d Mr. Klaf

t: Pending before the Court is the motion of Gary R. Klaft (“defendant”) for postconviction relief pursuant to Superior Court Criminal Rule 61 (“Rule 61"). 1 Alexander W. Funk, Esquire, was appointed as counsel to represent defenda nt in connection with this motion. Postconviction counsel has filed a motion to withdraw pursuant to Rule 61(e)(2). Defe ndant has been given the opportunity to respond to postconviction counsel’s submission but he has not submittedanything. The motion so clearly is meritless that the Court does not need submissions from trial counsel or the State of Delaware (“the State”). This is my decision deny ing the motion for postconviction relief. On or about March 4, 2013, defendant was ar rested on the following charge s: rape in the second degree without consent in violation of 11 Del. C. § 772; sex offender unlawful sexual conduct against a child in violation of 11 Del. C. § 777A (two counts); sexual exploitation of a child in violation of 11 Del. C. § 1108; unlawful dealing in child pornography in violation of 11 Del. C. § 1109; rape in the fourth degree in violation of 11 Del. C. § 770; and unlawful sexual contact 2 nd degree in violation of 11 Del. C. § 768. The information filed against him charge d him with sex offender unlawful sexual conduct against a child in violation of 11 Del. C. § 777A (2 counts); sexual exploitation of a child in violation of 11 Del. C. § 1108; unla wfully dealing in child pornography

in violation of 11 Del. C. § 1109; and unlawful sexual contact in the second degree in violation of 11 Del. C. § 768. On August 7, 2013, defendant pled guilty to a count of rape in the fourth degre e (a lesser included offense of the charg e of sex offender unlawful sexual conduct against a c hild) as well as to a count of sex off

ender un lawful se xual conduc

t again st a child. He was to be sente nced as a habitual offender on the rape fourth conviction. At the time of the plea, trial counsel explained that she had been over the habitual offender paperwork and defendant qualified to be se ntenced as such. After being placed under oa th, defendant verified the following information. He ha d had enough time to talk with his attorney about the case; he was satisfied with her repre sentation and had no c om pl ain ts ; h e ha d re vi ewe d t he p lea agr eem ent and Tru th -in -Se nt enc in g Fo rm ( “TIS 22 Transcript of August 7, 2013 Proceedings ( Docket Entry 24)

at 15. 3 Form”)and his at

torney had explai

ned the information in those f orms to him; as to the T IS Form, trial counsel read the questions to him and he provided honest answers to those questions; trial counsel explained the charges to which he was ple ading guilty ; trial counsel reviewed the evidence and penalties of law with him; he understood the sentence he was facing pursuant to the plea; he understo od he was

to be dec lared a

n habitua l offend er and he could be j ailed for the re st of his life based upon that declaration; he understood that such a dec laration would mean that he could be facing a life sentence should he be convicted of other crimes and sentence d in the future; a nd he unde

rstood tha t his proba

tion on the

sex offen der unla wful sexua

l conduct against a child conviction will be longer than usual to protect the safety of potential victims in the community . By

signing the guil ty p lea and T IS Form, defe ndant af firmed the followi

ng: * H e w as fr ee ly a nd vo lu nt ar il y pl ea di ng gu il ty; * H e w as no t t hr ea te ne d o r f or ce d i nt o p le ad in g gu il ty; * He unde

rstood he was waiv

ing his Constitutiona

l trial rig hts; * He understood the potential prison sentence; * He was s atisfied

with his tri al counse l’s repr esentat ion of him; * He understood all of the information contained in the forms; and * His answ ers wer

e truthfu l. Defend ant ad mitt ed to t he crim es. Th e Cour t foun d defen dant w as “mak ing a kn owing, intelligent, and voluntarily [sic] decision” 2 an d e nt er ed ju dg me nt s o f c on vi ct io n. Ad di ti on al ly, after review of the petition seeking to have defendant declared an habitual off ender, the Court declared him to be such as to the rape in the fourth deg ree conviction.3 The Court also imposed a sentence on a violation of probation on another ca se; that

sentenc e is irre levant to

these pr oceedin gs. 4 Defendant offered nothing whe n the Court provided him with the opportunity to speak. The Court

sentenc ed defe

ndant as f ollows. 3 As to the rape in the fourth degree c onviction, he was se ntenced to 15 y ears at Leve l 5 with cr

edit for 1 73 days previou sly served, and this sentence was imposed pursuant to 11 Del. C. § 4214(a). As to the conviction for sex offender unlawful sexual conduct against a child, the defendant wa s sentenced to 25 ye ars at Level 5, suspended after serving 5 y ears at Level 5 f

or 20 year

s at Level 3 probation. The Court imposed various c onditions a s requir ed by statute a nd the ple a agre ement. Defend ant di d not appeal the co nvict ions or sen tence. With in a mo nth o f sent encin g, however, he filed a motion for modification of his sentence. The Court denied the motion. On December 12, 2013, defendant filed the pe nding motion for postconviction relief. He assert s the f

ollo wing. Ground one: Ineffe ctive Assistance of counsil [sic] Counsel filed no motion on my behalf, counsel did not challenge admissibility of evidenc e seized il legall

y, g uilty plea wa s flawed

due to cou

nsel less t han fali ble [sic] representation of myself to only viable defense. Ground two: Conflict of inter est Counsel ha s repre sented the victims [si c] family members +

was know

n to victim giving credence ( or at least the appearance) of conspiracy

or collusion. I did not know this until after all was said + done. Ground three: Failure to investigate mental he alth patient records evaluation upon numerous requests by my self. Atty ref

used to request mental health evaluation or research my

mental health issues. Direct appeallent [sic] [unintelligible] mandates court shall set aside and remand. Postconviction counsel reviewed the court record, trial counse l’s file, all discovery4 100 A.3d 1021, 2014 WL 4536558, * 2 (Del. Sept. 12, 2014) (Table).

5 Sartin v. S

tate , 103 A.3d 515, 2014 WL 5392047, *2 (Del. Oct. 21, 2014) (Table)

. 6 Somervi lle v. Sta te , 703 A.2d 629, 632 (Del. 1997). 5 relative to the case, including all police repor ts and DVD interviews of defendant as well as the applicable law. He determined defenda nt had no meritorious claims. He then moved to withdraw pursuant to Superior Court Criminal Rule 61(e)(2). I set forth the guiding

legal principles before turning to de fendant’s claims. As explained in Purnell v. State: 4 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the familiar two-part test of Strickland v. Washington . FN 15 “In the conte xt of a guilty plea c

hallenge, Strickland

requires a defendant to show that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) counsel’s actions were so prejudicial that there is a r easonable probability

that, but for counsel’s errors, the defenda nt would not have pleaded guilty and would have insisted on going to trial.” FN 16 FN 15 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). FN 16 Somervi lle v. Sta te , 703 A.2d 629, 631 (1997) (internal quot ation marks omit ted) ( citi ng Albury v. State , 551 A.2d 53 (1988)). Additionally, There is a strong presumpt ion that c ounsel’s

repres entation

was prof essional ly reasona ble. Conc lusory

and unsup

ported c laims of pr

ejudice are insufficien

t to establish ineffe ctive as sistance ; a defe ndant must

make and

substantia

te concr ete clai ms of a ctua l pre judic e. [F ootno tes a

nd citations omi

tted]

. 5 Furthermore, In the absence of clea r and con vincing evidenc e to the c ontrary

, ... [defe ndant] is bound by his answe

rs on the T

ruth-in- Sentenci

ng Guilty Plea For m and by his sworn testimony prior to the acc eptance of the guilty plea. 67 Purnell v . State , supra, at *3 (footnotes and citations omitted).

8 Miller v. State , 840 A.2d 1229, 1232 (Del. 2003).

9 Rule 61(i)(1).

10 Malloy v . State , 16 A.3d 938, 2011 WL 1135107, *2 (Del. March 28, 2011) (Ta ble).

11 Younger v. S

tate , 580 A.2d 552, 555 (Del. 1990).

6 “[A] voluntary guilty

plea constitutes a waiver of any alleged errors occurr

ing before the entry of the ple a.” 7 Furthermore, defendant’s g uilty plea constitutes a waiver of all constitutional trial rig hts and the

right to challen ge any allege d violation s of his constitutiona l rights or to challenge any

of the evidence that would have been pre sented against him at trial or, in other words, to raise any

errors or defects prece ding the entry of the plea. 8 Defendant’s claims assert ineffective a ssistance of counsel in several respects. The motion, which was timely filed, 9 is not procedurally ba rred, as, in general, ineff

ective assistance of counse l claims c annot be r aised at trial and on appea l. 10 Defend ant claim s that tria

l counsel was inef fective because she did not

file motions on his behalf and did not challenge the admissibility of evidence seized illegally . Thus, the guilty plea was flawed. The assertion that trial counsel did not file motions on his behalf is vague and conclusory and thus, f

ails, 11 except to the extent the Court considers defendant’s argument to be that trial counsel did not file a motion to suppress on the ground that the evidence was illeg ally seized. Postconviction counsel explains the following. He reviewed defendant’s f ile in detail for potentia l pretria l motions an

d even if they had bee n filed, they

would not have bee

n succes sful. Defendant admitted to sexual contact with the victim and the police recovere d incriminating12 Postconviction Counsel’s Motion to Withdraw at 10-11.

13 Id. at 11.

14 State v. McGlotten , 2011 WL 987534, * 11 (Del. Super. March 21, 2011), aff’d, 26 A.3d 214, 2011 WL 3074790, *4 (Del. July 25, 2011) (Table).

15 Younger v. S

tate , supra . 7 evidence from defendant’s phone. This evidenc e would not have been suppressed. First, there was no ba sis for challeng ing def endant’ s stateme

nt. Defe ndant wa s advised

of his Miranda rights and he wa

ived them and ga ve a stat ement “that amount

ed to a confession

of sexual in

tercourse with a minor under the legal age of consent.” 12 The po lice s earched the ph one aft er obt ainin g a

warran t based up on a sear

ch warr ant appli cation wh

ich “con tained sufficien

t informa tion to allow a ne

utral and detached magi strate to draw the conclusi on that the

re was probable

cause to believe (1) that a crime had occurr ed, (2) that the Movant

had committed such crime, and (3) that evidence of the crime (or crimes) w ould be contained within the Movant’s cell phone.” 13 The fact that a non -state a

ctor had access ed the phone befor e the sea rch did not give r

ise to Fou rth Amendmen

t protec tions. Trial counsel need not file meritless, frivolous motions, and in fact, she had an obliga tion not to do so. 14 Defend ant ha s fail ed to e stabl ish t rial c ounse l was i neffec tive i n not fili ng a motion to sup

press. Th is claim f ails. Defendant’s next claim is that trial counsel had a conflict of interest bec ause she has represented the victim’s family members in the past and thus, there was some appeara nce of conspiracy

or collusion. This claim is vague and conclusory and thus, is dismissed. 15 Defend ant’s final claim i s that tria l counsel was inef fective because she faile d to16Id. 8

investig ate his me

ntal hea lth records and she failed

to have hi

m evalua ted, desp ite his re quests that she d o so. This c laim, too, i s vague and conc lusory , and thus, must fail. 16 No need exists for a hearing in this matter as the recor d and the law clearly

dictate the resulting decision on defendant’s pending motion. For the foregoing r

easons, the motion for postconviction relief fails and postconviction counsel’s motion to withdraw is granted. IT I S SO ORDERED. Very truly you rs, /s/ Richard F. Stokes Richard F. Stokes cc: Prothonotary’s O ffice John Donahue, IV, Esquire Stephanie Tsantes, Esquire