IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : I.D. No. 1505013606

 : In and for Kent County 

 v. :

 : RK15-07-0546-01 Murder 2nd(F)

DA MIER HARMON, : RK15-07-0548-01 PFDCF (F)

 :

Defendant. :

ORDER

Submitted: December 31, 2018

Decided: January 17, 2019

On this 17thday of January 2019, upon consideration of Da Mier Harmon’s

(“Mr. Harmon’s”) Motion for Postconviction Relief, the Commissioner’s Report and

Recommendation, and the record in this case, it appears that:

1. Mr. Harmon pled guilty the day his trial was set to begin on November 29,

2016 to one count of Murder in the Second Degree, as a lesser included offense of

Murder in the First Degree, and one count of Possession of a Firearm During the

Commission of a Felony. In exchange for his plea, the State entered nolle prosequis

on the remaining counts including one count of Robbery in the First Degree, one count

of Possession of a Firearm by a Person Prohibited, and one additional count of

Possession of a Firearm During the Commission of a Felony.

2. As part of the plea agreement, the State recommended a maximum sentence

of thirty years incarceration. Mr. Harmon faced mandatory life in prison had he been

convicted of the lead charge of First Degree Murder. The Court ordered a presentence

investigation, and the defense presented mitigating evidence. At the sentencing on

February 28, 2017, Mr. Harmon again admitted his complicity in the murder and asked

for forgiveness from the victim’s family. The Court agreed with the State's

recommendation and sentenced Mr. Harmon to a total of fifty years incarceration
suspended after thirty years, for probation.

3. Mr. Harmon did not appeal his conviction or sentence to the Delaware

Supreme Court. Rather, he filed, pro se, the pending motion for postconviction relief

pursuant to Superior Court Criminal Rule 61 alleging ineffective assistance of counsel.

He also requested the appointment of counsel. This Court denied that request pursuant

to Superior Court Criminal Rule 61(e)(2).

1

 

4. Next, Mr. Harmon filed a writ of Mandamus with the Delaware Supreme

Court concerning this Court’s denial of his request for appointment of counsel. The

Supreme Court denied the writ on February 13, 20182and the matter was set for

briefing on the pending postconviction motion.

5. On October 12, 2018, the Commissioner filed her Report and

Recommendation to deny Mr. Harmon’s Rule 61 Motion. Mr. Harmon filed no

exceptions to the Report and Recommendation.

NOW, THEREFORE, after a de novo review of the record in this matter, and

for the reasons stated in the Commissioner’s Report and Recommendation dated

October 12, 2018;

IT IS HEREBY ORDERED that the Commissioner’s Report and

Recommendation attached as Exhibit “A”, is hereby adopted by the Court in its

entirety. Accordingly, Mr. Harmon’s Motion for Postconviction Relief pursuant to

Superior Court Criminal Rule 61 is DENIED.

/s/Jeffrey J Clark

 Judge

1

See State v. Da Mier Harmon, C.A.No.1505013606 (Del. Super. Ct. Dec. 20, 2017)(discussing

the prior version ofRule 61 and that the applicable version’srelevant provisions were later designated

as Rule 61(e)(3)).

2

IMO the Petition of Da Mier Harmon for a writ of mandamus, Del. Supr. No. 42, 2018, Traynor,

J. (Feb. 13, 2018).

2
Exhibit A

3
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) I.D. No. 1505013606

) In and for Kent County 

v. )

) RK15-07-0546-01 Murder 2

nd

(F)

DA MIER HARMON, ) RK15-07-0548-01 PFDCF (F)

)

Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief

Pursuant to Superior Court Criminal Rule 61

StephenR. Welch, Jr., Esquire, Deputy Attorney General, Department ofJustice, forthe

State of Delaware.

Damier Harmon, Pro se.

FREUD, Commissioner

October 12, 2018

The defendant, Da Mier Harmon ("Harmon"), pled guilty the day his trial was set

to begin November 29, 2016 to one count of Murder in the Second Degree, as a lesser

included offense of Murder in the First Degree, 11 Del. C. § 635, and one count of

Possession of a Firearm During the Commission of Felony 11 Del. C. § 1447A. In

exchange for his plea the State entered nolle prosequis on the remaining countsincluding

one count of Robbery in the First Degree, one count of Possession of Firearm by a

4
Person Prohibited, and one additional count of Possession of a Firearm During the

Commission of a Felony. As part of the Plea Agreement the State recommended a

maximum sentence of thirty years incarceration. Due to the nature of the charges

Harmon faced mandatory life in prison had he been convicted of the lead charge of First

Degree Murder. A presentence office investigation was ordered and the defense

presented detailed mitigating evidence. At the sentencing on February 28, 2017 Harmon

again admitted his complicity and asked for forgiveness from the victims family. The

Court agreed with the State's recommendation and sentenced Harmon to a total of fifty

years incarceration suspended after thirty years for probation, eighteen of which were

minimummandatory. Harmon did not appeal his conviction orsentence to the Delaware

Supreme Court. He filed, pro se, the pending motion for postconviction pursuant to

Superior Court Criminal Rule 61 on August 7, 2017 alleging ineffective assistance of

counsel. He also requested the appointment of counsel. This court denied that request

pursuant to Superior Court Criminal Rule 61(e)(2). Next Harmon filed a writ of

Mandamus with the Delaware Supreme Court concerning this Court’s denial of his

request for appointment of counsel. The Supreme Court denied the writ on February 13,

20183and the matter was set for briefing on the pending postconviction motion.

FACTS

Accordingto the Probable Cause Affidavit

4

and the transcript fromthe Preliminary

Hearing,

5

at approximately 8:54 p.m. on May 13, 2015 Dover Police were dispatched

to Harmony Lane north of Walker Road in Dover in reference to a shooting. Upon

arriving at the scene Detective Wood of Dover Police Department located the victim

3

IMO the Petition of Damier Harmon for a writ of mandamus, Del. Supr. No. 42, 2018, Traynor,

J. (Feb. 13, 2018).

4

State v. Harmon, Del. Super. ID No. 1505013606, D.I. 1.

5 Harmon., D.I. 3.

5
Gary Adams (“Adams”) on the ground with a gunshot wound to his left upper chest.

Adams was taken to Kent General Hospital were he was declared dead. A subsequent

autopsy determined that Adams died as a result of a gunshot wound and the death was

found to be a homicide.

Detective Wood spoke with witness # 1 who told the officer that he and Adams

had agreed to meet two individuals via text message in order to sell them some

marijuana. Witness # 1 stated that Adams’ cell phone’s battery had run out so Adams

used witness # 1's cell phone to text the individual they thought intended to purchase the

marijuana. Witness # 1 allowed the police to view his cell phone and see the text

messages and the phone number of the individual who was arranging the meeting.

Witness # 1 stated that when he and Adams arrived on Harmony Lane they were

directed where to park their car and two suspects one tall thin black male, lateridentified

as Bruce Manlove (“Manlove”), Harmon’s co-defendant, and one a shorter heavyset

black male, lateridentified as Harmon, approached the vehicle and Adams handed a bag

of marijuana to Manlove who put it in his pocket according to witness # 1. At this point

witness # 1 stated that Harmon produced a handgun and ordered Adams to turn over his

property. Adams got out of the vehicle and a scuffle ensued. Witness # 1 observed the

scuffle and heard a single gunshot then saw Adams collapse on the ground at which point

the two suspects fled the scene in a southbound direction. A single 9 mm casing was

found at the scene.

Detective Wood also interviewed a second witness. Witness # 2 stated he lived

in the neighborhood and was outside when he saw two persons he identified as “BJ” and

“Hamburger.” BJ being a tallskinny black male and Hamburger being a short heavyset

black male. Witness # 2 stated he saw the car, later identified as the one witness # 1 and

Adams were in, pull into the neighborhood. Witness # 2 stated he saw BJ and

6
Hamburger walk up to the car. Witness # 2 was speaking with an acquaintance when

he looked up a second time and saw the passenger from the car struggling with BJ and

Hamburger. Witness # 2 then heard a gunshot and saw Adams collapse. As they ran

away witness # 2 saw Hamburger trying to tuck something into his sweatshirt. Witness

# 2 told the police that Hamburger lives at the entrance to the neighborhood and was on

home confinement. The investigation revealed that Harmon lives where witness # 2 said

“Hamburger” lives and that Harmon was on Level 4 monitoring and was in the vicinity

at the time of the murder. The investigation also revealed that shortly after the murder

Harmon had cut off his ankle bracelet and fled the area. Witness # 2 positively identified

Manlove as “BJ,” the tall skinny black male. He also identified Harmon as

“Hamburger,” the shorter heavy set black male. Manlove and Harmon were

apprehended at a hotel in Philadelphia a short time after the crime and extradited to

Delaware. Manlove confessed to his involvement in the crime and implicated Harmon

as the shooter. As part of his plea agreement Manlove agreed to testify at Harmon’s

trial.

HARMON’S CONTENTIONS

In his motion Harmon raises the following grounds for relief:

Ground one: Ineffective Counsel.

Did Counsel fail to investigate into facts relevant to

preparing defense for trial, or arguement (sic) for less

time, resulting in prejudice and failure to aid client?

Ground two: Ineffective Counsel and Due Process.

Was plea accepted knowingly and intellegently (sic),

and, did counsel use coercive tactic in getting

defendant to sign plea?

Ground three: Ineffective Counsel.

Was Counsel’s failure to request “change of venue”

7
ineffective, when victims father was Police officer in

County where crime was committed?

DISCUSSION

Under Delaware law, this Court must first determine whether Harmon has met the

procedural requirements of Superior Court Criminal Rule 61(i) before it may consider

the merits of his postconviction relief claim.

6 This is Harman’s first motion for

postconviction relief, and it was filed within one year of his conviction becoming final.

Therefore, the requirements of Rule 61(i)(1) - requiring filing within one year and (2) -

requiring that all groundsfor relief be presented in initial Rule 61 motion, are met. None

of Harmon’s claims were raised at the plea, sentencing, or on direct appeal. Therefore,

they are barred by Rule 61(i)(3), absent a demonstration of cause for the default and

prejudice. All of Harmon’s claims are based on ineffective assistance of counsel;

therefore, he has alleged cause for his failure to have raised them earlier.

At this point, Rule 61(i)(3) does not bar relief as to Harmon’s grounds for relief,

provided he demonstrates that his counsel was ineffective and that he was prejudiced by

counsel’s actions. To prevail on his claim of ineffective assistance of counsel, Harmon

must meet the two-prong test of Strickland v. Washington.

7

In the context of a guilty

plea challenge, Strickland requires a defendant show: (1) that counsel's representation

fell below an objective standard of reasonableness; and (2) that counsel's actions were

prejudicial to himin that there is a reasonable probability that, but for counsel's error, he

would not have pled guilty and would have insisted on going to trial and that the result

of a trial would have been his acquittal.

8 The failure to establish that a defendant would

6 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

7

466 U.S. 668 (1984).

8

Id. at 687.

8
not have pled guilty and would have proceeded to trial is sufficient cause for denial of

relief.

9

In addition, Delaware courts have consistently held that in setting forth a claim

ofineffective assistance of counsel, a defendant must make concrete allegations of actual

prejudice and substantiate them or risk summary dismissal.

10 When examining the

representation of counsel pursuant to the first prong of the Strickland test, there is a

strong presumption that counsel's conduct was professionally reasonable.11 This

standard is highly demanding.12Strickland mandates that, when viewing counsel's

representation, this Court must endeavor to “eliminate the distorting effects of

hindsight.”

13

Following a complete review ofthe record in this matter, it is abundantly clear that

Harmon has failed to allege any facts sufficient to substantiate his claimthat his attorney

was ineffective. I find trial counsel’s affidavit, in conjunction with the record, more

credible that Harmon’s self-serving claims that his counsel’s representation was

ineffective. Harmon’s counsel clearly denies the allegations.

As noted, Harmon was facing the possibility of mandatory life in prison had he

been convicted, and the sentence and plea were reasonable under all the circumstances,

especially in light of the overwhelming evidence against him. Prior to the entry of the

plea, Harmon and his attorney discussed the case. The plea bargain was clearly

advantageous to Harmon. Counsel’s representation was certainly well within the range

required by Strickland. Additionally, when Harmon entered his guilty plea, he stated he

9

Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60 (Del.

1988))(citations omitted).

10

See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL

466465 at *1 (Del. Supr.)).

11 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

12 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S. 365,

383 (1986)).

13

Strickland, 466 U.S. at 689.

9
was satisfied with defense counsel’s performance. He is bound by his statement unless

he presents clear and convincing evidence to the contrary.

14 Consequently, Harmon has

failed to establish that his counsel’s representation was ineffective under the Strickland

test.

Even assuming, arguendo, that counsel’srepresentation ofHarmonwassomehow

deficient, Harmon must satisfy the second prong of the Strickland test, prejudice. In

setting forth a claimofineffective assistance of counsel, a defendant must make concrete

allegations of actual prejudice and substantiate them or risk dismissal.

15

 In an attempt

to show prejudice, Harmon simply asserts that his counsel was ineffective. His

statements are insufficient to establish prejudice, particularly in light of the evidence

against him. Therefore, I find Harmon’s grounds for relief are meritless.

To the extent that Harmon alleges his plea was involuntary, the record contradicts

such an allegation. When addressing the question of whether a plea was constitutionally

knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of

constitutional rights was knowing and voluntary.

16 At the guilty-plea hearing, the Court

asked Harmon whether he understood the nature ofthe charges, the consequences of his

pleading guilty, and whether he was voluntarily pleading guilty. The Court asked

Harmon if he understood he would waive his constitutional rights if he pled guilty; if he

understood each ofthe constitutionalrightslisted on the Truth-in-Sentencing Guilty Plea

Form(“Guilty Plea Form”); and whether he gave truthful answers to all the questions on

the form. The Court asked Harmon if he had discussed the guilty plea and its

consequences fully with his attorney. The Court asked Harmon if he was entering into

14 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931, 937-938

(Del. 1994)).

15 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del.

1990)).

16 Godinez v. Moran, 509 U.S. 389, 400 (1993).

10
the plea as he was guilty of the charges. The Court also asked Harmon if he was

satisfied with this counsel’s representation. Harmon answered each of these questions

affirmatively.

17 Additionally at his sentencing Harmon acknowledged his guilt and

requested forgiveness from his victims’s family.

18

I find counsel’s representations far

more credible than Harmon’s self-serving, vague allegations.

Furthermore, prior to entering his guilty plea, Harmon signed a Guilty Plea Form

and Plea Agreement in his own handwriting. Harmon’s signatures on the forms indicate

that he understood the constitutional rights he was relinquishing by pleading guilty and

that he freely and voluntarily decided to plead guilty to the charges listed in the Plea

Agreement. Harmon is bound by the statements he made on the signed Guilty Plea

Form, unless he proves otherwise by clear and convincing evidence.19I confidently find

that Harmon entered his guilty plea knowingly and voluntarily and that Harmon’s

grounds for relief are completely meritless.

CONCLUSION

Ifind that Harmon’s counselrepresented himin a competent and effective manner

and that Harmon has failed to demonstrate any prejudice stemming from the

representation. I also find that Harmon’s guilty plea was entered knowingly and

voluntarily. Irecommend that the Court deny Harmon’s motion for postconviction relief

as procedurally barred and completely meritless.

/s/ Andrea M. Freud

Commissioner

AMF/dsc

17

State v. Harmon, Del. Super., ID No. 1505020549, (Nov. 29, 2015), Tr. of Plea at 18 to 28.

18 Harmon, Del. Super., ID No. 1505020549 (Feb 28, 2016), Tr. of Sentencing at 9.

19

Sommerville, 703 A.2d at 632.

11