IN THE SUPREME COURT OF THE STATE OF DELAWARE
KESSELEE KANDA, §
§
Defendant Below, - § No. 511, 2014
Appellant, §
§ Court Below—Superior Court
V. § of the State of Delaware,
§ in and for New Castle County
STATE OF DELAWARE, § Cr. ID No. 1010009629
§
Plaintiff Below, §
Appellee. §
Submitted: January 7, 2015
Decided: February 5, 2015
Before STRINE, Chief Justice, HOLLAND, and VALIHURA, Justices.
O R D E R
This 5th day of February 2015, upon consideration of the appellant’s
Supreme Court Rule 26(0) brief, the State’s response, and the record below, it
appears to the Court that:
(1) On August 15, 2011, after a three day trial, a Superior Court jury
found the appellant, Kesselee Kanda, guilty of eleven counts of Burglary in the
Second Degree, eleven counts of Conspiracy in the Second Degree, eleven counts
of Theft,1 five counts of Criminal Mischief, two counts of Possession of a Deadly
Weapon with an Obliterated Serial Number, and one count of Receiving a Stolen
1 Two of these counts were subsequently dismissed.
Firearm. These convictions arose from burglaries committed by Kanda and a co—
defendant who pled guilty and testified against Kanda at trial. Kanda was
sentenced to a total of eleven and a half years of Level V incarceration to be
followed by decreasing levels of supervision.
(2) On direct appeal, Kanda’s counsel initially filed an opening brief, but
then moved to withdraw under Supreme Court Rule 26(0). Kanda identified the
following issues to be raised on appeal: (i) the police lacked probable cause to
search the apartment he shared with his co-defendant without a warrant; (ii) the
police lacked probable cause to arrest him; (iii) the evidence was insufficient to
support his convictions; and (iv) the Superior Court erred in admitting hearsay
testimony. This Court concluded that Kanda’s claims were without merit and
affirmed the judgment of the Superior Court.2
(3) On November 16, 2012, Kanda filed his first motion for
postconviction relief. Kanda claimed that: (i) the police searched the apartment he
shared with his co-defendant on October 13, 2010 without a warrant; (ii) he was
illegally detained during the search of the apartment; and (iii) his counsel was
ineffective for failing to file a motion to suppress the stolen goods discovered
throughout the apartment. In support of his claim that the police lacked a warrant
2 Kanda v. State, 2012 WL 4862590 (Del. Oct. 12, 2012).
to search the apartment, Kanda attached a warrant for his co-defendant’s car dated
October 12, 2010 and a warrant for the apartment dated October 14, 2010.
(4) As directed by a Superior Court commissioner (“Commissioner”),
Kanda’s trial counsel responded to Kanda’s motion and submitted an affidavit with
a search warrant for the apartment dated October 12, 2010. After the State
responded to Kanda’s motion for postconviction relief, Kanda filed a motion for
appointment of counsel. The Commissioner denied and then granted the motion
for appointment of counsel. Postconviction counsel (“Postconviction Counsel”)
was appointed to represent Kanda.
(5) On November 7, 2013, Postconviction Counsel filed a motion to
withdraw as counsel because he concluded that Kanda’s claims were without merit
and he did not find any other meritorious claims for relief. Kanda and the State
responded to Postconviction Counsel’s motion to withdraw. On June 27, 2014, the
Commissioner recommended summary dismissal of Kanda’s motion for
postconviction relief because all of Kanda’s claims lacked merit. On August 14,
2014, the Superior Court adopted the report and recommendations of the
Commissioner and denied Kanda’s motion for postconviction relief. This appeal
followed.
(6) On appeal, Postconviction Counsel filed a brief and a motion to
withdraw under Supreme Court Rule 26(c) (“Rule 26(0)”). Postconviction Counsel
asserts that, based upon a complete and careful examination of the record, there are
no arguably appealable issues. Postconviction Counsel informed Kanda of the
provisions of Rule 26(0) and provided Kanda with a copy of the motion to
Withdraw and the accompanying brief. Postconviction Counsel also informed
Kanda of his right to identify any points he wished this Court to consider on
appeal. Kanda asked Postconviction Counsel to appeal the issues identified in his
first motion for postconviction relief. The State has responded to the issues raised
by Kanda and asked this Court to affirm the Superior Court’s judgment.
(7) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the recOrd and the law for arguable claims; and (ii)
must conduct its own review of the record and determine whether the appeal is so
totally devoid of at least arguably appealable issues that it can be decided without
an adversary presentation.3
This Court reviews the Superior Court’s denial of
postconviction relief for abuse of discretion and questions of law de novo.4 The
Court must consider the procedural requirements of Superior Court Criminal Rule
61 (“Rule 61”) before addressing any substantive issues.5
3 Penson v. Ohio, 488 US. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
4 Dawson V. State, 673 A.2d 1186, 1190 (Del. 1996).
5 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
(8) Rule 61(i)(4) bars litigation of any claim that that was formerly
adjudicated unless reconsideration of the claim is warranted in the interest of
justice.6 This Court previously rejected Kanda’s claim that the police searched the
apartment he shared with his co-defendant on October 13, 2010 without a warrant.7
Contrary to Kanda’s contention that the police did not obtain a warrant until
October 14, 2010, the record reflectsthat the police obtained a search warrant for
the apartment on October 12, 2010, searched the apartment, obtained another
search warrant for the apartment on October 14, 2010, and searched the apartment
again. Reconsideration of this claim is not warranted in the interest of justice.
(9) Kanda next claims that the police illegally detained him during the
search of the apartment. He did not raise this claim in the proceedings leading to
his conviction. Under Rule 61(i)(3), any claim not asserted in the proceedings
leading to conviction is barred unless the movant shows cause for relief from the
procedural default and prejudice from violation of the movant’s rights.8 Under
Rule 61(i)(5), Rule 61(i)(3) does not bar a colorable claim of a miscarriage of
justice due to a constitutional violation undermining the fimdamental fairness of
6 Super. Ct. Crim. R. 61(i)(4).
7 Kanda v. State, 2012 WL 4862590, at *2. _
8 Super. Ct. Crim. R. 61(i)(3).
the proceedings.9 Kanda has not established cause or prejudice from his failure to
raise this claim in a timely fashion. Nor has Kanda established a colorable claim
of a miscarriage of justice sufficient to overcome this procedural hurdle under Rule
61(i)(5).
(10) Finally, Kanda claims his trial counsel was ineffective for failing to
file a motion to suppress evidence collected from the apartment. To prevail on an
ineffective assistance of counsel claim, a defendant must prove that his counsel’s
performance was objectively unreasonable and that he was prejudiced as a result.10
Kanda’s ineffective assistance of counsel claim is based on his contention that the
police did not obtain a warrant to search the apartment until October 14, 2010. As
previously discussed, this contention is incorrect. Kanda’s ineffective assistance of
counsel claim is therefore without merit.
(l l) The Superior Court did not err in adopting the report and
recommendations of the Commissioner and denying Kanda’s motion for
postconviction relief. This Court has reviewed the record carefully and has
concluded that Kanda’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Postconviction Counsel has made a
9 Super. Ct. Crim. R. 61(i)(5).
1° 466 US. 668, 691-94 (1984).
conscientious effort to examine the record and the law and has properly determined
that Kanda could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to Withdraw is moot.
BY THE COURT:
'Justice 6