Morrison v. State
| Decision Date | 16 March 2022 |
| Docket Number | 236, 2020 |
| Citation | 274 A.3d 1006 (Table) |
| Parties | Durrion MORRISON, Defendant Below, Appellant, v. STATE of Delaware, Appellee. |
| Court | Supreme Court of Delaware |
Upon consideration of the appellant's Supreme Court Rule 26(c) brief, the State's response, and the record on appeal, it appears to the Court that:
I. Procedural History
(1) In August 2016, a grand jury indicted Durrion Morrison and co-defendant Joseph Hunt for multiple crimes including first-degree murder and attempted first-degree robbery. The charges arose from the attempted robbery and shooting of Jason Hicks on March 30, 2016.
(2) After Hunt pleaded guilty to manslaughter and agreed to testify at the trial of any co-defendant, Morrison pleaded guilty to second-degree murder as a lesser included offense of first-degree murder and possession of a firearm during the commission of a felony ("PFDCF") on November 3, 2017. The Superior Court ordered a pre-sentence investigation.
(3) In mid-December, Morrison began sending letters to the Superior Court expressing his desire to withdraw his guilty plea. The Superior Court forwarded Morrison's letters to his trial counsel. On February 8, 2018, Morrison's trial counsel advised the Superior Court judge originally assigned to the case (a different Superior Court judge accepted the guilty plea because the originally assigned judge was unavailable) that:
The defendant is claiming that my representation of him in this matter was ineffective, resulting in him accepting a plea that he would not have enter [sic] but for my ineffectiveness as his attorney. Based upon this claim, he has instructed me to file a motion to withdraw his plea agreement. Since he has raised a claim that I was ineffective in his representation, I am asking the Office of Conflict Counsel to assign a new attorney to review this matter. Please accept this email as my request to continue Morrison's sentencing scheduled for tomorrow.1
(4) The Superior Court re-scheduled sentencing for February 16, 2018.2 Because the judge originally assigned to the matter remained unavailable, the Superior Court judge who accepted Morrison's guilty plea presided over his sentencing. Morrison's trial counsel, who had not been replaced with new counsel, told the Superior Court that Morrison wished to withdraw his plea, but that he did not find any basis for a motion to withdraw Morrison's guilty plea. He further stated that he had advised Morrison ineffective assistance claims should be raised in a Rule 61 motion and that Morrison would have to pursue a motion to withdraw his guilty plea pro se .
(5) The Superior Court then asked Morrison if he wished to proceed without counsel at sentencing, and Morrison explained that he wanted to withdraw his guilty plea. The Superior Court questioned the basis for such a motion, reminded Morrison of his representations during the plea colloquy, and told Morrison that he could raise ineffective assistance of counsel claims in a Rule 61 motion. Morrison eventually agreed to proceed with sentencing with his trial counsel's assistance. The Superior Court sentenced Morrison to twenty-eight years of Level V incarceration, suspended after twenty years for two years of Level III probation. Morrison did not file a direct appeal.
(6) On January 14, 2019, Morrison filed a timely motion for postconviction relief under Superior Court Criminal Rule 61. Morrison argued that: (i) his trial counsel was ineffective for failing to file a timely motion to withdraw his guilty plea as he had instructed; (ii) his trial counsel was ineffective for failing to file motions based on tampering with phone records and the ballistic expert's misconduct, failing to obtain character and alibi witnesses, and failing to request a speedy trial or bench trial; (iii) there was tampering with Hunt's phone records to add a number for a cell phone associated with Morrison; and (iv) there was tampering with the ballistics evidence. The motion was assigned to a Superior Court Commissioner, who directed Morrison's trial counsel to respond to Morrison's allegations of ineffective assistance and set a briefing schedule.
(7) Morrison filed motions for issuance of a subpoena to Sprint for Hunt's phone records and for appointment of counsel. Morrison also filed a motion to amend his postconviction motion to include a claim that the Superior Court erred in its handling of his wish to withdraw his guilty plea. The Commissioner initially denied the motions for a subpoena and for appointment of counsel, but subsequently granted Morrison's motion for appointment of counsel and set a new briefing schedule. On January 13, 2020, postconviction counsel filed a motion to withdraw.
(8) On March 16, 2020, the Commissioner issued a report recommending denial of Morrison's postconviction motion and granting of postconviction counsel's motion to withdraw. On June 30, 2020, the Superior Court accepted the Commissioner's recommendation, denied Morrison's motion for postconviction relief, and granted postconviction counsel's motion to withdraw. This appeal followed.
II. Appeal
(9) After the completion of briefing, this appeal was stayed pending the Court's decision in Reed v. State , No. 214, 2020. The Court issued its decision in Reed on August 11, 2021.3 In this appeal, the Court determined that supplemental briefing was necessary to address the possible applicability of Reed and appointed counsel ("Counsel") to represent Morrison.
(10) Counsel filed a brief and a motion to withdraw under Supreme Court Rule 26(c) (" Rule 26(c)"). Counsel asserts that, based upon a complete and careful examination of the record, there are no arguably appealable issues. Counsel informed Morrison of the provisions of Rule 26(c) and provided Morrison with a copy of the motion to withdraw and the accompanying brief. Counsel also informed Morrison of his right to identify any points he wished this Court to consider on appeal. Morrison has submitted points for the Court's consideration. The State has responded to the Rule 26(c) brief and argues that the Superior Court's judgment should be affirmed.
III. Standard And Scope Of Review
(11) When reviewing a motion to withdraw and an accompanying brief, 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) 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.4 This Court reviews the Superior Court's denial of postconviction relief for abuse of discretion and questions of law de novo .5 The Court must consider the procedural requirements of Rule 61 before addressing any substantive issues.6
IV. Claims On Appeal
(12) Morrison's claims on appeal may be summarized as follows: (i) his trial counsel was ineffective for failing to file a motion withdraw the guilty plea as he had instructed; (ii) his trial counsel was ineffective in his handling of the phone records and ballistics evidence; (iii) the State tampered with and withheld phone records; (iv) the State tampered with and failed to test ballistics evidence; and (v) the Superior Court abused its discretion in its handling of Morrison's desire to withdraw his guilty plea. Claims that Morrison raised below, but failed to raise on appeal are deemed waived.7
V. Analysis
(13) The procedural requirements of Rule 61 do not bar Morrison's timely claims of ineffective assistance of counsel.8 In most circumstances, a movant asserting ineffective assistance of counsel must show that: (i) his counsel's conduct fell below an objective standard of reasonableness; and (ii) there was a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different.9 When the ineffective assistance claim arises in the context of a guilty plea, the movant must show that but for his counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.10
(14) In a narrow set of circumstances, prejudice is presumed under United States v. Cronic .11 As this Court explained in Reed :
Cronic applies where the deprivation of counsel is total, as when "the accused is denied counsel at a critical stage of his trial" entirely. But even when a defendant is nominally represented, Cronic relieves a defendant of the burden of showing prejudice when the circumstances are such that "the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Such cases involve the "constructive denial of counsel," which requires that the circumstance demonstrate the "complete breakdown," either "in the adversarial process" or in attorney-client communication.12
Morrison argues that Cronic applies here because there was a complete breakdown in the attorney-client relationship due to his allegations that trial counsel conspired with the State to conceal falsified records and trial counsel's failure to communicate with him after he insisted on withdrawing his guilty plea. The State argues that Strickland applies because Morrison was not constructively denied the assistance of counsel.
(15) The record does not support Morrison's claims of a complete breakdown in the attorney-client relationship. In the months leading up to his guilty plea, Morrison regularly communicated with his trial counsel about the telephone records and his belief that someone had tampered with Hunt's telephone records by inserting a telephone number associated with Morrison. After Morrison pleaded guilty and raised the alleged tampering as a basis for withdrawal of his plea, his trial counsel spoke with him by...
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