State v. Shover

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) ID# 1511001640
)
RYAN SHOVER, )
)
Defendant. )

Date Submitted: March 24, 2023
Date Decided: May 15, 2023

ORDER

Upon consideration of Defendant’s Pro Se Motion for Postconviction Relief1

and Appointed Counsel’s Motion to Withdraw as Counsel;2 Superior Court Criminal

Rule 61; the facts, arguments, and legal authorities set forth in the Motions; statutory

and decisional law; and the record in this case, IT APPEARS THAT:

1) On February 1, 2018, a jury found Defendant Ryan Shover guilty of

two counts of Murder First Degree, two counts of Possession of a Deadly Weapon

During the Commission of a Felony, Conspiracy First Degree, and Insurance Fraud.3

2) On July 30, 2018, Defendant filed a notice of direct appeal.4 On May

21, 2019, the Supreme Court of Delaware issued its Mandate affirming the judgment

1
D.I. 94.
2
D.I. 116.
3
D.I. 62.
4
D.I. 990, 92.
1
of the Superior Court, finding it “evident that the final judgment of the Superior

Court should be affirmed on the basis of its transcript rulings during trial.”5

3) On July 3, 2019, Defendant filed a pro se Motion for Postconviction

Relief and Motion for Appointment of Counsel.6

4) On July 10, 2019, the Superior Court granted the Motion for

Appointment of Counsel.7

5) On December 4, 2019, the Office of Conflicts Counsel confirmed that

Christopher Koyste, Esquire, was appointed as Defendant’s Rule 61 Counsel (“Rule

61 Counsel”).8

6) On January 25, 2021, Rule 61 Counsel filed a Motion to Withdraw, a

Memorandum of Law in support of the motion, and three appendices pursuant to

Rule 61(e)(6).9 Rule 61 Counsel informed the Court that, after a thorough review of

the record, Defendant’s claims lacked merit and there were no additional meritorious

claims.10 Rule 61 Counsel indicated that he transmitted a copy of the filing to

Defendant and informed Defendant that Defendant had thirty days to file a

response.11 On this date, Rule 61 Counsel also filed a Motion to Seal portions of the

5
D.I. 92-93; Shover v. State, 217 A.3d 1095 (TABLE), 2019 WL 2206270 (Del. 2019).
6
D.I. 94.
7
D.I. 98.
8
D.I. 102
9
D.I. 116.
10
D.I. 116; Mot. Withdraw as Counsel.
11
Id.
2
appendices to the Motion to Withdraw that were within the scope of the Protective

Order entered in Defendant’s case on November 9, 2017.12

7) On February 12, 2021, Rule 61 Counsel filed a Motion to Modify the

November 9, 2017 Protective Order.13 On this date, Rule 61 Counsel also filed a

letter request to extend the deadline by which Defendant could respond to the Motion

to Withdraw on the basis that Defendant would be unable to perform a meaningful

review of his case file until after the Motion to Modify Protective Order was

resolved.14

8) On August 2, 2021, the Court granted the Motion to Modify Protective

Order and ruled that the appendices to Rule 61 Counsel’s Motion to Withdraw be

unsealed for release to Defendant without any redactions required.15 The Court

further ordered the State to propose redactions to all materials previously provided

to Defendant’s prior attorneys, and that Rule 61 Counsel propose redactions to all

materials not produced by the State that were internally produced by defense

counsel.16

12
D.I. 119.
13
D.I. 118.
14
D.I. 117.
15
D.I. 126; Aug. 18, 2021 Order.
16
Id.
3
 9) On December 27, 2021, Defendant filed pro se a Motion for

Reconsideration of his Postconviction Motion.17

10) On July 21, 2022, Rule 61 Counsel informed the Court that redactions

to internally produced defense materials had been completed.18

11) On September 22, 2022, the State informed the Court that it completed

redactions to discovery materials originally provided by the State to Defendant’s

trial counsel.19 The State provided these documents to Andrew Peruchi, Legal

Services Administrator with the James T. Vaughn Correctional Center, to transmit

to Defendant.20

12) On September 23, 2022, Rule 61 Counsel filed on Defendant’s behalf,

Defendant’s pro se motion for transcripts of jury instructions and motion to compel,

and provided the Court with a letter update of same.21

13) On December 2, 2022, the Court ordered the State to file a response to

Defendant’s Motion to Compel by December 30, 2022, after which the Court would

set a briefing schedule for Defendant’s Rule 61 Motion and Rule 61 Counsel’s

Motion to Withdraw.22 The Court also denied Defendant’s motion for transcripts of

17
D.I. 129. The Court did not take any action on this considering the pending review of sealed
materials by counsel.
18
D.I. 141.
19
D.I. 148.
20
D.I. 149.
21
D.I. 144-145.
22
D.I. 151.
4
jury instructions as moot because Rule 61 Counsel had previously informed the

Court that all missing portions of the trial transcripts had been sent to Defendant.23

14) On December 12, 2022, the State requested an extension to respond to

Defendant’s Motion to Compel, which Rule 61 Counsel did not oppose.24 The Court

extended the deadline to January 25, 2023.25

15) The State filed its response to Defendant’s Motion to Compel on

January 25, 2023.26

16) On February 6, 2023, the State, in response to the Court’s request,

informed the Court that Rule 61 Counsel had finished providing Defendant with

copies of court transcripts and internally produced defense materials; and that the

State had completed its redactions and sent those materials to the Legal Services

Administrator.27 The State advised that there were no additional documents that

needed to be sent to Defendant.28

17) On February 8, 2023, the Court issued an order on Defendant’s Motion

to Compel29 and set a briefing schedule for the pending Motion for Postconviction

Relief.30 The Court denied Defendant’s Motion to Compel finding that the State and

23
D.I. 145, 152.
24
D.I. 153.
25
D.I. 153.
26
D.I. 154.
27
D.I. 158.
28
Id.
29
D.I. 157.
30
D.I. 156.
5
Rule 61 Counsel completed redactions and sent all required discovery to

Defendant.31 The Court held, therefore, that the motion was moot.32 The Court

ordered that Defendant respond to Rule 61 Counsel’s Motion to Withdraw by March

24, 2023 and notified Defendant that his failure to file a response by the deadline

would constitute a waiver.33

18) On February 21, 2023, Defendant filed a second pro se Motion to

Compel.34

19) On April 17, 2023, the Court denied Defendant’s second Motion to

Compel as moot on the same basis that it denied his first Motion to Compel.35

20) As of this date, Defendant has not responded to Rule 61 Counsel’s

Motion to Withdraw.

ANALYSIS

21) Pursuant to Superior Court Criminal Rule 61(e)(6), postconviction

counsel has an obligation to assist the movant in presenting any substantial ground

for relief.36 If counsel identifies any substantial ground for relief, counsel can file an

amended motion to include those grounds.37 Conversely, if counsel “considers the

31
D.I. 157; Feb. 8, 2023 Order.
32
Id.
33
Id.
34
D.I. 159.
35
D.I. 161.
36
Super. Ct. Crim. R. 61(e)(6).
37
Super. Ct. Crim. R. 61(b)(6).
6
movant’s claim to be so lacking in merit that counsel cannot ethically advocate it,

and counsel is not aware of any other substantial ground for relief available to the

movant, counsel may move to withdraw.”38 If counsel moves to withdraw, they must

explain the factual and legal basis for their opinion and provide notice to the movant,

who may respond within thirty days of service, unless the court grants an extension

of this deadline.39

22) Here, Rule 61 Counsel concluded that Defendant’s claims lacked

sufficient merit to the point that he could not ethically advocate Defendant’s

position.40 On this basis, Rule 61 Counsel moved to withdraw.41

23) The deadline for Defendant to respond to Rule 61 Counsel’s Motion to

Withdraw was March 24, 2023.42 As of the date of this order, Defendant has not

responded to Rule 61 Counsel’s Motion to Withdraw, having been in possession of

all required discovery since approximately September 22, 2022.43

24) In the Motion to Withdraw, Rule 61 Counsel engaged in a detailed

analysis of Defendant’s claims before concluding that they were devoid of merit.44

Defendant has elected to not contest Rule 61 Counsel’s position on his Motion for

38
Super. Ct. Crim. R. 61(e)(7).
39
Id.
40
Mot. Withdraw; D.I. 116.
41
Id.
42
D.I. 156.
43
D.I. 148-149.
44
See Mot. Withdraw p. 15-24.
7
Postconviction Relief. Because Defendant has failed to timely respond to Rule 61

Counsel’s Motion to Withdraw, Defendant is limited to presenting the claims he

made in his pro se Motion for Postconviction Relief. The Court will not consider

any additional claims Defendant made in his Motion for Reconsideration filed on

December 27, 2021.

25) With respect to Defendant’s Motion for Postconviction Relief, Superior

Court Criminal Rule 61(a) states such motions must be based on a sufficient factual

or legal basis.45 Superior Court Criminal Rule 61(b)(2) requires that postconviction

motions “specify all grounds for relief which are available to the movant . . . and

shall set forth in summary form the facts supporting each of the grounds thus

specified.”46 “[F]or a claim of ineffective assistance of counsel to prevail, the

defendant must make concrete allegations of actual prejudice and substantiate them

or risk summary dismissal.”47 If the motion clearly shows that the movant is not

entitled to relief, the court may summarily dismiss it.48

26) After a review of the Motion for Postconviction Relief and Motion to

Withdraw, in addition to the applicable legal authorities, it is evident that

Defendant’s grounds for relief do not have merit. Defendant claims defense counsel

45
Super. Ct. Crim. R. 61(a).
46
Super. Ct. Crim. R. 61(b)(2).
47
Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996).
48
Super. Ct. Crim. R. 61(d)(5).
8
was ineffective for the following reasons: (1) defense counsel failed to perform DNA

testing on certain items at or near the crime scene; (2) the State engaged in

prosecutorial misconduct; and (3) Defendant’s constitutional right to confront

witnesses was violated when the FBI agent who recorded witnesses’ statements was

not called to testify.49

27) With respect to Defendant’s first claim, as discussed in the Motion to

Withdraw, defense counsel’s decision to not test other items for DNA was a strategic

decision, which is given substantial deference.50 Additionally, Defendant sustained

no prejudice because there was overwhelming evidence to support the jury’s

verdict.51

28) Defendant’s second claim was previously adjudicated in his direct

appeal, thus Defendant is barred from raising it in these postconviction

proceedings.52

29) Defendant’s third claim is also without merit.53 Defendant’s

constitutional right to confront witnesses was not violated by a witness refreshing

49
D.I. 94.
50
Mot. Withdraw at pp. 15-18. See State v. Thomas, 2019 WL 3205772, at *3 (Del. Super. July
16, 2019) (“Trial Counsel could have requested independent testing of the DNA evidence.
However, failing to request independent DNA evidence does not make Trial Counsel
ineffective.”).
51
Id.; Staats v. State, 961 A.2d 514, 520-521 (Del. 2008) (discussing overwhelming evidence
implicating defendant in the murder and holding that the “Superior Court properly rejected Staats’
second ground for post-conviction relief based upon ineffective assistance from his trial counsel.”).
52
Mot. Withdraw at pp. 21-22; Super. Ct. Crim. R. 61(i)(4).
53
Mot. Withdraw at pp. 22-24.
9
his recollection with the FBI agent’s typewritten notes of that witness’ prior out-of-

court statement because the State was permitted to refresh a witness’ recollection in

this manner pursuant to Delaware Rule of Evidence 612.54 It was the witness’ in-

court testimony, not the typewritten notes of that witness’ prior statement, that

constituted the evidence that went to the jury.55 The Court, therefore, will enter an

Order for its summary dismissal.56

NOW THEREFORE, Counsel’s Motion to Withdraw is GRANTED and

Defendant’s Pro Se Motion for Postconviction Relief is SUMMARILY

DISMISSED.

IT IS SO ORDERED.

/s/ Meghan A. Adams
Judge Meghan A. Adams

Original to Prothonotary
cc: Anthony A. Figliola, Esquire
Peter W. Veith, Esquire
Christopher Koyste, Esquire
Carolyn S. Hake, Deputy Attorney General
Ryan Shover, pro se

54
Id.; D.R.E. 612.
55
Mot. Withdraw at p. 24; D.R.E. 612.
56
Super. Ct. Crim. R. 61(d)(5).
10