IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

)

STATE OF DELAWARE ) ) I.D. No. 1211021787

v. ) )

ROBERT J. HOHN III ) )

Defendant )

Submitted: November 18 , 2014

Decided: January 21, 2015

O n Defendant’s Motion for Postconviction Relief

. SUMMARILY DISMISSED

.



## ORDER

Victoria Withere ll

, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State

Robert J. Hohn III

, Wilmington , Delaware

, pro s e

COOCH, R.J.

This 21 st day of January

, 2015 , upon consideration of Defendant’s

First Motion for Postconviction R elief

, it appears to the Court that:

1. Defendant Robert J. Hohn III pled guilty in September 2013 to Assault in the Second Degree and Misdemeanor Endangering

the Welfare of a Child. Defendant was then sentenced to a total of nine years years at Level V, suspended after six years and

one month for two years at Level IV, suspended after six

months for two years and eleven months are Level III2 probation

. 1 The Delaware Supreme Court affirmed Defendant’s conviction and sentence on appeal

. 2

2. Defendant filed the instant motion on November 13 , 2014.

Defendant asserts three grounds for relief in his motion, all of

which are listed here in toto :

(1) In effective Assistance of Counsel

– “Counsel did not make full magnitude of plea known and thus involuntary. Counsel did not make mention of Bench Trial. Counsel did not file for sup pression of evidence. Counsel did not fully explain my rights. Counsel ignored important evidence in favor of defen[s]e. Counsel refused to present counter plea offer. Counsel did not state or explain plea was an open plea. Counsel did not request supporti ng evidence

from co

- defendant’s counsel. Counsel refused request for trial.”

(2) Coercion of Guilty Plea

– “Counsel refused to go to trial (“I think you are going to have to take this plea.”). Counsel used fear tactics (“look at all the time you face if you l ose.”). Counsel used co

defendant as leverage (“Shannon has already signed her plea and wants you to sign yours.”).

(3) Unfulfilled Plea Agreement

– “Counsel stressed repedativly [sic] the presumptive sentencing guidelines. Counsel gave false hope of

time ser ved (“I don’t see you doing any more time.”). Counsel

stressed favorable results if trial was waived. Counsel stressed leanency for not making the victim take the witness stand. Counsel stressed favorable outcome for a first offen[s]e with no prior history .” 3

3. Defendant’s Motion for Postconviction Reli ef is controlled by the recently amended Superior Court Criminal Rule 61

. 4 Under Superior Court Criminal Rule 61(i ), a Motion for

Postconviction R elief can be potentially procedurally barred for time limitations, successive motions, procedural defaults, and former adjudications. 5 Before addressing the merits of this

1 Sentence Order, D.I. # 15 ( Dec. 6, 2013 ).

2 See Hohn v. State , 100 A.3d 1021, 2014 WL 4050183 (Del. Aug. 14, 2014) (ORDER).

3 Def.’s Mot. for Postconviction Relief at 3, D.I. #28 (Nov. 13, 2014).

4 The most recent set of amendments to Super. Ct. Crim. R. 61 took effect on June 4,

2014.

5 Super. Ct. Crim R. 61(i)(1)

- (4).3 Motion for Postconviction Relief, the Court must address any procedural requirements of Rule 61(i). 6

4. Rule 61(i)(1) pr ovides that a motion exceeds time limitations if it is filed more than one year after the conviction is finalized , or if the motion assert s a newly recognized, retroactively applied right more than one year after it is first recognized. 7

5. Rule 61(i)(2) p rovides that a motion is successive if it is the second or subsequent motion made under this Rule, and such successive motions are prohibited unless the pleading requirements of 61(d)(2)(i) or (ii) are met. 8

6. Rule 61(i)(3) bars consideration any ground for relief “not asserted in the proceedings leading to the judgment of

conviction

, ” unless the movant can show “cause for relief from the procedural default ” and “prejudice from violation of the movant’s rights .” 9

7. Rule 61(i)(4) bars consider ation of any ground for relief formerly adjudicated in the case, including “proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus hearing

. ” 10

8. If a ny of the above procedural bar s exis t

, the Court will not

consider the merits of the claim s unless the Defendant can show that the exception found in Rule 61(i)(5) applies

. 11

9. Rule 61(i)(5), as recently amended, provides that consideration

of otherwis e procedurally barred claims is limited to claims that the Court lacked jurisdiction, or claims that satisfy the new

6 Younger v. State , 580 A.2d 552, 554 (Del. 1990).

7 Super. Ct. Crim. R. 61(i)(1).

8 See Super. Ct. Crim. R. 61(i)(2). For further discussion of the pleading standards articulated in the newly amended Rule, see infra

. 9 Super. Ct. Crim. R. 61(i)(3).

10 Super. Ct. Cr im. R. 61(i)(4).

11 Super. Ct. Crim. R. 61(i)(5).4 pleading standards set forth in 61(d)(2)(i) and (ii). 12 The new pleading standards require that the Motion either:

(i) Pleads with particularity that new evidence

exists t hat creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was

convicted ; or (ii) Pleads with particularity a claim that a new rule of constitutional law, made retroactive to

cases on collateral re view by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case and

renders the conviction . . . invalid. 13

10. This Court finds that Defendant’s Motion was timely filed and is not otherwise procedurally barred

. 14 However

, “[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal

and cause the movant to be notified.” 15 A mo vant must support his or her assertions with ‘concrete allegations of actual prejudice, or risk summary dismissal.’” 16 Sufficiently developed allegations are required in support of all grounds for relief, including claims of ineffective assistance of counsel. 17 This Court “will not address Rule 61 claims that are conclusory and

unsubstantiated. ” 18

12 Id.

13 Super Ct. Crim R. 61(d)(2)(i )

. 14 The Supreme Court affirmed Defendant’s conviction in August of 2014 and the instant

motion followed three months later. Defendant is within the one

- year filing window

articulated by the Rule.

15 Super. Ct. Crim. R. 61(d)(5).

16 State v. Chambers , 2008 WL 4 137988, at *1 (Del. Super. Aug. 25, 2008) (quoting

State v. Childress , 2000 WL 1610766, at *1 (Del. Super. Sept. 19, 2000)).

17 See, e.g., State v. Robbins , 1996 WL 769219, at *1 (Del. Super. Dec. 18, 1996).

18 State v. Owens , 2002 WL 234739, at *1 (Del. Super. Jan. 11, 2002).5 11. Defendant alleges ine ffective assistance of counsel, but does not set forth sufficient evidence to survive either prong of

Strickland. To successfully articulate an ineffective assistance of counsel claim, a claimant must demonstrate: 1) that counsel’s performance was deficien t, and 2) “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” 19 To prove counsel’s deficiency, a d efendant must show that counsel’s representation fell below a n objective standard of

reasonableness. 20 Moreover, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. 21 Defendant makes only one

- sentence claims regarding counsel’s alleged deficiencies and nothi ng

more. This Court find s such claims are insufficient to survive

the Strickland standard.

12. Defendant also makes numerous unsupported allegations regarding the propriety of his plea and the circumstances under

which it was entered into. This Court finds th at all of

Defendant’s claims are without merit. A guilty plea entered voluntarily “constitutes a waiver or any alleged errors or defects occurring prior to the entry of the plea.” 22 Moreover, Defendant acknowledged on his truth

- in

- sentencing guilty plea

fo rm that he read and understood the information on the form, including the maximum penalties to which he was subject.

Defendant also indicated on the form that no one had threatened or forced him to enter the plea. 23 Finally , a lengthy plea colloquy was conducted during which this Court determined

19 Albury v. State , 551 A.2d 53, 60 (Del. 1988) (citing Hill v. Lockhart , 474 U.S. 52 (1985)) (applying second prong of Strickland analysis in the context of a guilty plea); See

also Strickland v. Washington , 466 U.S. 668, 688 (1984).

20 Albury

, 551 A.2d at 60

. 21 Wright v. State , 671 A.2d 1353, 1356 (Del. 1996).

22 Bentley v. State , 27 A.3d 550, 2011 WL 3793779, at *2 (Del. 2011) (TABLE) (citing

Downer v. State , 543 A.2d 309, 311

- 13 (Del. 1988)).

23 See Plea Agreement and Truth

- in

- Sentenc ing Guilty Plea Form, D.I. #12 (Sept. 16, 2013).6 that Defendant was entering his plea knowingly, intelligently, and voluntarily. 24

13. After review of the record, this Court finds no basis upon which to conclude that Defendant’s guilty plea was involuntary or was entered into based upon a misunderstanding or mistake as to Defendant’s legal rights.

14. Despite the timeliness of Defendant’s Motion, it plainly appears

from the contents of the Motion that Defendant’s claims should be summarily dismissed. In Defendant’s Motion, he sets forth a

bare

- bones list of broad, conclusory statements with no underlying facts or law to support his claims. This Court

declines to address Defendant’s Rule 61 claim s further

, consistent with Rule 61(d)(5). Summa ry Dismissal is the appropriate disposition of Defendant’s Motion for

Postconviction Relief.

Therefore, Defendant’s Motion for Postconviction Relief is SUMMARILY

DISMISSED

.

IT IS SO ORDERED.

______________________ Richard R. Cooch, R.J.

o c: Prothonotary

cc: Investigative Services

24 See Transcript of Plea Colloquy, D.I. # 18 (Feb. 14, 2014).