State v. Wiggins

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE,

V.

|
| I.D. 1412002182
MICHAEL WIGGINS, |
|
Defendant. |

Date Decided: October 30, 2020

Upon Defendant Michael Wiggins’ Motion for Postconviction Relief
Denied.

Upon Defendant Michael Wiggins’ Motion to Strike Trial Counsel’s Affidavit
Denied.

ORDER
Background

On December 4, 2014, Michael Wiggins (“Defendant”) was arrested by
Delaware State Police (“DSP”) in Wilmington, Delaware. On March 30, 2015,
Defendant was indicted on the following charges: of Drug Dealing Heroin (Tier 4),
Drug Dealing Cocaine, Drug Dealing Endocet, six counts of Possession of a Firearm
During the Commission of Drug Dealing, Aggravated Possession of Heroin (Tier 5),
Possession of Marijuana and Drug Paraphernalia, Conspiracy in the Second Degree,
and four counts of Possession of a Firearm by a Person Prohibited.

Defendant’s trial was scheduled for December 8, 2015. On the day of trial,

Defendant entered a guilty plea. Defendant pled guilty to Drug Dealing Heroin (Tier
4), Possession of a Firearm During the Commission of a Felony, and Conspiracy in
the Second Degree. The State entered Nolle Prosequi on the remaining charges. The
Court scheduled Defendant’s sentencing hearing on March 11, 2016.

On January 11, 2016, although represented by trial counsel John S. Malik,
Esquire (“Trial Counsel”), Defendant filed a pro se Motion to Withdraw the Guilty
Plea. On April 14, 2016, Trial Counsel filed the Motion to Withdraw Guilty Plea.
On May 20, 2016, this Court denied Defendant’s Motion to Withdraw Guilty Plea
and subsequently sentenced Defendant to a total of ten (10) years of Level 5
incarceration (five (5) years each for Drug Dealing in Heroin and Possession of a
Firearm in the Commission of a Felony) and a 2-year probationary sentence (Level
4) for the remaining Conspiracy in the Second Degree charge. The remaining
charges were nolle prossed.

On June 20, 2016, Defendant filed a timely Notice of Appeal to the Delaware
Supreme Court and contested the denial of his Motion to Withdraw the Guilty Plea.
On May 22, 2017, the Delaware Supreme Court affirmed this Court’s decision and
Defendant’s sentence.

On May 10, 2018, Defendant timely filed a pro se Motion for Postconviction
Relief. On July 22, 2019, the Court appointed Natalie S. Woloshin, Esquire as Rule
61 Counsel for the Defendant. On December 20, 2019, Defendant filed an Amended

Motion for Postconviction Relief (the “Motion for Postconviction Relief’). On
March 22, 2020, Trial Counsel filed an Affidavit in Response to Defendant’s Motion
for Post-Conviction Relief. On March 27, 2020, Defendant filed a Motion to Strike
Trial Counsel’s Affidavit. On April 23, 2020, the State filed its Response to the
Motion for Post-Conviction Relief. On July 9, 2020, Defendant filed his Reply in
Support of Motion for Post-Conviction Relief.
Defendant’s Assertions

Defendant raises four grounds in his Motion for Post-Conviction Relief for
Ineffective Assistance of Counsel: (1) Trial Counsel failed to appear or appeared late
for scheduled hearings; (2) Trial Counsel failed to provide discovery materials to the
Defendant; (3) Trial Counsel failed to file a “meritorious motion to suppress”; and
(4) Trial Counsel was ineffective in filing and presenting Defendant’s Motion to
Withdraw Guilty Plea.

Discussion
A. Procedural Bars

The Court must address potential procedural bars to relief under Rule 61(1)
before assessing the merits of Defendant’s motion.' Rule 61(i)(1) bars relief if the
motion is filed more than one year after the judgment of conviction is final. This bar
is not applicable because Defendant timely filed his pro se Motion on May 10, 2018

which was 12 days before the one year time bar. Rule 61(i)(2) prohibits second or

' Younger y. State, 580 A.2d 552, 554 (Del. 1990).
3
subsequent motions. Since this Motion is the first for the Defendant, Rule 61(1)(2)
does not bar his Motion. Rule 61(i)(3) bars relief if the motion includes claims not
asserted in the proceedings leading to the final judgment.’ This bar is not applicable
because Defendant claims ineffective assistance of counsel, which could not have
been raised in any direct appeal.? Finally, Rule 61(i)(4) bars relief if the motion is
based on a formerly adjudicated ground—this bar is also inapplicable in the current
case.‘

The Court must also address the fact that the Defendant entered into a guilty
plea. The Defendant knowingly, intelligently and voluntarily plead guilty to Drug
Dealing Heroin (Tier 4), Possession of a Firearm During the Commission of a Felony
and Conspiracy Second Degree. It is well-settled that a knowing and voluntary guilty
plea waives a defendant’s right to challenge any errors occurring before the entry of

the plea, “even those of constitutional dimensions.”°

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

3 See State v. Berry, 2016 WL 5624893, at *4 (Del. Super. June 29, 2016) (finding
Rule 61(i)(3) did not apply to the defendant’s motion because ineffective
assistance of counsel could not have been raised in any direct appeal).

4 Super. Ct. Crim. R. 61(4)(4).

5 Wilson v. State, 2010 WL 572114, at *2 (Del. Feb.18, 2010) (quoting Smith v.
State, 2004 WL 120530, at *1 (Del. Jan. 15, 2004)).

4
B. Ineffective Assistance of Counsel

Delaware has adopted the two-prong test proffered in Strickland v.
Washington’ to evaluate ineffective assistance of counsel claims.’ To succeed on an
ineffective assistance of counsel claim, a petitioner must demonstrate that ““counsel’s
representation fell below an objective standard of reasonableness”* and that “there
is a reasonable probability that but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”

To avoid the “distorting effects of hindsight,” counsel’s actions are afforded
a strong presumption of reasonableness.'° The “benchmark for judging any claim
of ineffectiveness [is to] be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having
produced a just result.”!! The Court’s objective in evaluating counsel’s conduct is
to “reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.”"

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

7 Albury v. State, 551 A.2d 53, 58 (Del. 1988).

8 Strickland v. Washington, 466 U.S. 668, 694 (1984).

° Flamer v. State, 585 A.2d 736, 753 (Del. 1990).

10 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (citing Strickland, 466 U.S. at 689).
! State v. Wright, 2015 WL 648818, at *3 (Del. Super. Feb. 12, 2015) (internal

quotation marks omitted).
12 Neal, 80 A.3d at 942 (citing Strickland, 466 U.S. at 689).

5
a. Claim One: Trial Counsel alleged ineffectiveness for failure to appear
or appeared late for scheduled hearings

Defendant claims that Trial Counsel was ineffective by failing to appear or
appearing late for schedule hearings. On May 19, 2015, Trial Counsel failed to
appear for Defendant’s office conference. On September 14, 2015, Trial Counsel did
not appear until the end of the calendar for Defendant’s final case review. Despite
Trial Counsel’s tardiness, the matter was rescheduled for October 19, 2015 because
Defendant was incarcerated on a violation of probation in Pennsylvania and unable
to attend.

Here, the Court acknowledges that Trial Counsel has been either late or failed
to appear at scheduled hearings. However, for the purposes of this Motion for Post-
Conviction Relief and under a Strickland standard, it is not necessary to explore
extensively the impact that Trial Counsel’s actions would have caused to
Defendant’s case because Defendant suffered no prejudice by Trial Counsel’s
tardiness or absence.

First, Trial Counsel’s absence did not alter the outcome of Defendant’s case
or otherwise prejudice Defendant by missing a scheduled office conference. Second,
Defendant was not prejudiced by Trial Counsel’s tardiness to the final case review
because it was rescheduled for a later date. Last, Defendant was not prejudiced when

Trial Counsel arrived twenty (20) minutes late to Defendant’s sentencing hearing
because Defendant had already plead guilty. Although Trial Counsel presented
Defendant’s Motion to Withdraw Guilty Plea, his tardiness did not influence or
change the outcome of the Motion to Withdraw Guilty Plea nor the subsequent
sentencing. As a result, Defendant’s claim that Trial Counsel provided ineffective
assistance of counsel is without merit.
b. Claim Two: Trial Counsel alleged ineffectiveness for failure to provide
discovery materials to the Defendant
Defendant claims that Trial Counsel was ineffective by failing to provide
discovery materials. Trial Counsel, through his Affidavit in Response to Defendant’s
Motion for Post-Conviction Relief, states that he did not mail him copies of the
discovery materials,'? but instead reviewed these materials with Defendant in person
at the Howard R. Young Correctional Institution (““HRYCI’). Trial Counsel states
that he reviewed these materials with Defendant at HRYCI to make him aware of
the evidence that the State had in his case and what evidence would be adduced at
trial by the prosecution.'*
Here, the Court finds no prejudice. Defendant does not specify what
information his Trial Counsel withheld from him. Regardless, “[Defendant] seems

to confuse a right to information with the right to written copies of that information.

13 Discovery materials consisted of police reports, search warrant applications,
DNA report, and Defendant’s criminal history.
'4 D1. 89 at Section 32, p. 10.

7
He has a right to the former, but not the latter.”'> As a result, Defendant’s claim that
Trial Counsel provided ineffective assistance of counsel is without merit.
c. Claim Three: Trial Counsel alleged ineffectiveness for failure to file a
“meritorious motion to suppress”

Defendant claims that Trial Counsel was ineffective for failing to file a
“meritorious motion to suppress.” Defendant claims there was no strategic reason
why Trial Counsel did not file a Motion to Suppress because “[t]he bulk of the
evidence the State had against [Defendant] was the result of an unreasonable search
and un-Mirandized statements and thus, would have been suppressed.”’'®

Trial Counsel responded and stated that “[he] did not file a motion to suppress
evidence because in [his] opinion, there was not a meritorious basis upon which to
file a motion to suppress evidence.”!”

In the context of a guilty plea challenge, Strickland requires the Defendant to
show that Trial Counsel’s representation fell below an objective standard of
reasonableness.'® Further, Defendant must show that there is a reasonable
probability that but for Trial Counsel’s errors, Defendant would not have pled guilty

but would have insisted on going to trial.'? There is a strong presumption that legal

|S State v. Ferguson, 2017 WL 4457208, at *3 (Del. Super. 2017).
16 DI. 87 at p. 19.

7P.1. 89 p. 11.
'8 Strickland v. Washington, 466 U.S. 668, 694 (1984).
'9 Dorsey v. State, 2006 WL 889364, *2 (Del. 2006).

8
representation is professionally reasonable.*° To withdraw a plea after a sentence has
been imposed, the defendant must show either that his plea was not voluntarily
entered or that it was entered because of misapprehension or mistake as to his legal
options.2! A defendant is bound by the statements he made on the signed plea form
and during the in court colloquy unless he proves otherwise by clear and convincing
evidence.”

A relatively recent Delaware Supreme Court case, Dorsey v. State, provides
clarity regarding Defendant’s claim of ineffective assistance of counsel for Trial
Counsel’s failure to file a “meritorious” Motion to Suppress. In Dorsey, the
defendant had his Motion for Postconviction Relief regarding his underlying drug
charges denied by this Court. On appeal, the Defendant claimed, among other items,
that his guilty plea resulted from ineffective assistance of counsel because his
attorney failed to investigate the facts of his case and file a Motion to Suppress.
However, the Supreme Court affirmed this Court’s decision and stated that they
found “no evidence in the record that any error on the part of the [defendant’s]
counsel caused him to plead guilty.”?? Accordingly, “given the circumstances of his

arrest, the evidence against him, and his criminal history, there [was] no reason to

20 Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990).
21 Albury v. State, 551 A.2d 53, 58 (Del. 1988).

22 Smith v. State, 1990 WL 1475, at *1 (Del. 1990).

23 Dorsey v. State, 2006 WL 889364, *2 (Del. 2006).

9
believe that [the defendant] would have received a lesser sentence had he not pleaded
guilty and proceed to trial.”**

The Court finds that Defendant’s claim for ineffective assistance of counsel
based on his Trial Counsel’s failure to file a “meritorious” Motion to Suppress must
fail under Strickland and Flamer. By pleading guilty to Drug Dealing in Heroin —
Tier 4, Possession of a Firearm During the Commission of a Felony, and Conspiracy
Second Degree, Defendant indicated that he understood the constitutional rights he
was relinquishing. He indicated to the Court that he was satisfied with his attorney’s
representation and that his attorney had fully advised him of his rights. Now,
Defendant contests that validity of his plea agreement due to his Trial Counsel’s
failure to file a “meritorious” Motion to Suppress. However, the Court finds that
Trial Counsel acted reasonably under the circumstances.

Defendant and Trial Counsel received copies of the police reports, search
warrant applications, the DNA report, and the criminal history produced by the State
through discovery. These documents provided counsel with sufficient information
to determine the success of a Motion to Suppress and the quality of a plea agreement.
Considering the nature of Defendant’s arrest, and the evidence against the

Defendant, counsel took professionally reasonable steps in recommending a plea

24 Td.
10
agreement. Nothing supports the contention that Defendant did not understand or
disagree with the aspects of his plea agreement.

Additionally, the State’s plea agreement provided Defendant with “significant
benefits” here. Under this agreement, the State agreed to dismiss: five (5) counts of
Possession of a Firearm During the Commission of a Felony; one (1) count of
Aggravated Possession of Heroin — Tier 5; one (1) count of Drug Dealing in Cocaine;
one (1) count of Drug Dealing in Endocet; one (1) count of Possession of Marijuana;
one (1) count of Possession of Drug Paraphernalia; two (2) counts of Possession of
a Firearm While Possessing Heroin; and two (2) counts of Possession of a Firearm
by a Person Prohibited.

Most significant, the plea agreement allowed Defendant to motion this Court,
unopposed by the State, to modify his ten (10) years of Level 5 incarceration time to
eight (8) years of Level 5 incarceration if Defendant completed a G.E.D. program.
In accordance with the agreement, Defendant’s sentence was later modified to eight
(8) years of Level 5 incarceration.

Moreover, as Trial Counsel noted, due to Defendant’s prior criminal history,”
Defendant faced enhanced sentences. “If convicted of all charges in the case at bar,

Defendant would have received a mandatory minimum sentence of fifty-two (52)

25 Attempted Robbery Second Degree, PWBPP, Possession with Intent to Deliver.
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years of Level 5 incarceration.”° The Court finds that the benefit of a plea agreement

significantly outweighed the risks posed by going to trial here.
d. Claim Four: Trial Counsel was ineffective in filing and presenting

Defendant’s Motion to Withdraw Guilty Plea
Defendant claims that Trial Counsel was ineffective in filing and presenting
Defendant’s Motion to Withdraw Guilty Plea. First, Defendant claims that Trial
Counsel should have motioned the Court for the appointment of new counsel. Next,
Defendant claims that his pro se Motion to Withdraw Guilty Plea differed from the
one filed by his Trial Counsel.
1. Trial Counsel’s Alleged Ineffectiveness for Failure to Motion
for Appointment of New Counsel.

In a letter sent by Defendant with regards to his pro se Motion to Withdraw
Guilty Plea, received by the sentencing Judge’s office on February 25, 2016, he

states, in pertinent, the following:

I tried to prove my innocen[ce] by asking my attorney to put in for a motion
to suppress the drugs which never happened. I feel it is my right to have a
suppression hearing, alhough | know it’s to[o] late. I also was denied my
rule 16 discovery which could of proved the drugs were not mine[] or in my
possession.

Your honor, I felt as though that I didn’t have a choice but to take the plea
deal I was offered due to lack of counsel. My attor[n]ey [] is a great attorney
but your honor during my whole case I’ve seen [my attorney] twice here at
[HRYCTI] for no more than twenty minu[tes] each time and as I’ve said I

6 T).1. 89 (Trial Counsel’s Affidavit in Response to Defendant’s Motion for
Postconviction Relief).

12
really did not want to take that plea which I plead guilty to drug dealing but
I felt I had no choice because my attorney did not allow me to prove my
innocents for the drugs. Saying all that I’ve said, I respectfully request the
Court to allow me to withdraw my plea of drug dealing and maybe seek [a]
new attorney.

With regards to appointing new counsel, it appears that the Defendant asked
the sentencing Judge to maybe appoint him a new attorney. However, at the
sentencing hearing, and after Trial Counsel informed the Court that Defendant was

pursuing the Motion to Withdraw Guilty Plea, the following exchange took place:

Court: You are not asking [Trial Counsel] to leave your case?
Defendant: No, I’m not.

Thus, Defendant’s claim that Trial Counsel should have motioned the Court
to appoint new counsel is without merit. Defendant indicated that he did not want
his Trial Counsel to leave his case.

2. Trial Counsel’s alleged ineffectiveness for filing a Motion to
Withdraw Guilty Plea that differed from Defendant’s pro se
Motion to Withdraw Guilty Plea.

Defendant, in his Motion for Postconviction Relief, contends that the grounds
Trial Counsel asserted in the Motion to Withdraw Guilty plea are different from the
grounds Defendant asserted in his pro se Motion. Trial Counsel, at the hearing,

asserted the following:

Subsequent to the entry of his guilty plea, Defendant [] has advised
counsel that at the time he decided to enter his guilty plea, he was under
substantial stress; he was fearful of being convicted of all indicted
charges; and felt pressured by the prosecutor into accepting the State’s

13
plea offer and pleading guilty. As a consequence, Defendant [] does not
believe that he entered his plea in a voluntary fashion.

Additionally, Defendant [] contends that had the case proceeded to trial,
the evidence presented by the prosecution would not have supported
convictions since no drugs were found on his person and no drugs were
found in his vehicle.

Defendant, in his Motion for Postconviction Relief, states the following

claims were included in his pro se Motion:

(1) The drugs were not in his possession

(2) The State had no physical evidence against him

(3) Trial Counsel failed to do the requested fingerprint analysis on the drugs
(4) Tria] Counsel failed to provide him his Rule 16 Discovery Materials
(5) Trial Counsel only met with Defendant twice

(6) Defendant felt pressured to accept the plea agreement.

Defendant also contends that, allegedly in direct contravention to Defendant’s
pro se Motion, Trial Counsel claimed: “Defendant [] does not contend that there was
a procedural defect with his guilty plea or that he did not have adequate legal counsel
during the proceedings in his case.” Defendant does not clarify in which way this
statement directly contravened Defendant’s pro se Motion.

Regarding the first ground in Defendant’s pro se Motion (drugs were not in
his possession), Trial Counsel, in his Affidavit in Response to Defendant’s Motion
for Postconviction Relief, states that he did assert the first ground. The Court notes

that Trial Counsel did assert the first ground.’

27 Additionally, Defendant [] contends that had the case proceeded to trial, the
evidence presented by the prosecution would not have supported convictions since
no drugs were found on his person and no drugs were found in his vehicle.

14
Regarding the second ground in Defendant’s pro se Motion (State had no
physical evidence against him), Trial Counsel stated he did not include the second
ground because the DNA analysis of the .9 mm Glock semi-automatic handgun
Defendant admitted to having in the Lincoln indicated that the major contributor of
the DNA found on the Glock’s extended magazine was consistent with Defendant’s
DNA. The Court agrees that the State had physical evidence against the Defendant.

Regarding the third ground in Defendant’s pro se Motion (Trial Counsel failed
to do the requested fingerprint analysis on the drugs), Trial Counsel stated that he
did not do so because “the packing of the narcotics was subjected to forensic
fingerprint analysis by the Delaware State Police” and “[t]he fingerprint analysis []
resulted in a determination that [Defendant’s] fingerprints were not found on any of
the materials in which the narcotics were packaged.” The Court agrees with Trial
Counsel’s contention here that there was no need to have an independent fingerprint
analysis conducted.

Regarding the fourth ground in Defendant’s pro se Motion (Trial Counsel
failed to provide Rule 16 Discovery), Trial Counsel stated that he did not do so
because Trial Counsel reviewed the police reports, search warrant applications,
DNA report, and criminal history with Defendant at HRYCI on at least two
occasions and made him aware of the evidence the prosecution would present at trial

as well. The Court notes that the failure to provide Rule 16 Discovery materials is

15
wholly separate from the failure to review the Rule 16 Discovery materials.
“(Defendant] seems to confuse a right to information with the right to written copies
of that information. He has a right to the former, but not the latter.””*

Regarding the fifth ground in Defendant’s pro se Motion (Trial Counsel met
with Defendant only twice), Trial Counsel stated that he did not assert to the Court
that he had met with Defendant only twice, but that he did meet with Defendant at
HRYCI on at least two occasions.

Regarding the sixth ground in Defendant’s pro se Motion (Defendant felt
pressured to accept the plea deal), the Court notes here that Trial Counsel did assert
such claim.

The Court does not find any discrepancies that would rise to an inference of
ineffective assistance of counsel. Furthermore, on Defendant’s Truth-In-Sentencing
Form, Defendant indicated that he freely and voluntarily decided to plead guilty to
the charges listed in the written plea agreement. Defendant also indicated that neither
Trial Counsel nor the State threatened or forced him to enter into this plea. Last, he

indicated that he was satisfied with Trial Counsel’s representation and that Trial

Counsel fully advised him of his rights. Absent clear and convincing evidence to the

28 State v. Ferguson, 2017 WL 4457208, at *3 (Del. Super. 2017).
16
contrary, Defendant is bound by his representations in the Truth-In-Sentencing
Guilty Plea Form and the guilty plea colloquy.”?
Conclusion
Defendant has failed to show that Trial Counsel’s conduct constituted
ineffective assistance of counsel under the two-prong Strickland standard.
Defendant’s Motion for Postconviction Relief is DENIED and Rule 61 Counsel’s
Motion to strike Trial Counsel’s Affidavit is DENIED.

IT IS SO ORDERED.

see»

The Honora¥le Calvin L. Scott, Jr.

29 Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
17