Zebroski v. State , 186

• Court: United States State Supreme Court of Delaware
• Writing for the Court: AFFIRMED IN PART AND REMANDED.
• Citation: 12 A.3d 1115
• Parties: Craig ZEBROSKI, Defendant Below–Appellant,v.STATE of Delaware, Plaintiff Below–Appellee.
• Docket Number: 2009.,No. 186,186
• Decision Date: 09 March 2010

12 A.3d 1115

Craig ZEBROSKI, Defendant Below–Appellant,
v.
STATE of Delaware, Plaintiff Below–Appellee.

No. 186

2009.

Supreme Court of Delaware.

Submitted: Dec. 9, 2009.Decided: March 9, 2010.

[12 A.3d 1116]

Court Below Superior Court of the State of Delaware, in and for New Castle County, ID No. 9604017809.Upon appeal from the Superior Court. AFFIRMED IN PART AND REMANDED.Jennifer–Kate Aaronson, Esquire, (argued) of Aaronson & Collins, LLC, Wilmington, Delaware, for the Appellant.Paul R. Wallace, Esquire, (argued), Loren C. Meyers, Esquire, Gregory E. Smith, Esquire, of the Department of Justice, Wilmington, Delaware, for the Appellee.Before STEELE, Chief Justice, HOLLAND, JACOBS, and RIDGELY, Justices, and SMALLS, Chief Judge,¹ constituting the Court en Banc.RIDGELY, Justice:

Defendant–Appellant Craig Zebroski appeals from the Superior Court's denial of his second motion for postconviction relief from his conviction and death sentence for murder in the first degree. Zebroski raises three arguments on appeal. First, he contends that the Superior Court erred in ruling that his claims of ineffective assistance of his trial and postconviction counsel were procedurally barred by Superior Court Rules 61(i)(2) and (4). Second, he contends that the Delaware Constitution guarantees the effective assistance of postconviction counsel and provides a constitutional basis to overcome the procedural bars of Rule 61. Third, Zebroski contends that he is entitled to a new penalty hearing because the felony murder conviction (which the Superior Court has vacated) prejudiced the outcome of the penalty phase.

Rules 61(i)(2) and (4) provide an exception to the procedural bars when consideration is warranted “in the interest of justice.” Rule 61(i)(5) also allows review on the merits, notwithstanding the procedural bar of Rule 61(i)(2), when a colorable claim is made “that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to a judgment of conviction.” ² Because the Superior Court did not address the interest of justice exception, as we defined in Weedon v. State, ³ and also because it did not address the Rule 61(i)(5) miscarriage of justice exception to the bar of Rule 61(i)(2), a remand is necessary. We conclude that Zebroski's claim under the Delaware Constitution is moot given the availability of relief under

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Rule 61 if it is shown that the proceedings leading to the conviction and imposition of a death sentence were unreliable. As to Zebroski's third argument, we affirm the judgment of the Superior Court.

Facts and Procedural History

On the evening of April 25, 1996, Zebroski, Michael Sarro and Brian Morrise set out to rob a Conoco gas station in New Castle, Delaware. While Zebroski and Sarro were waiting until the gas station was empty of customers, Zebroski took Sarro's semi-automatic handgun so as to assume the role of “enforcer.” The two entered the station at approximately 3:00 a.m. and found the attendant, Joseph Hammond, sitting in a chair at the desk. Zebroski pointed the gun at Hammond, and demanded that he open the cash register. Hammond approached the register but did not comply with the demand. Zebroski kept the gun pointed at Hammond, who was standing three to four feet away from Zebroski. Despite threats from Zebroski and Sarro, Hammond remained unresponsive. Sarro then attempted to open the register himself, but his efforts were unavailing. It is undisputed that Zebroski then fired the gun, shooting Hammond in the forehead and killing him instantly.

Following a jury trial, Zebroski was convicted on both counts of first degree murder,⁴ one count of attempted robbery first degree, three counts of possession of a firearm during the commission of a felony and one count of conspiracy in the second degree. Following Zebroski's conviction, the Superior Court held a three-day penalty hearing. In its decision, the Superior Court listed 7 aggravating factors presented by the State ⁵ and 17 mitigating factors presented by Zebroski.⁶ At the conclusion of the hearing, the jury voted nine to three that the aggravating circumstances outweighed the mitigating circumstances and recommended that the Superior Court impose a sentence of death. The Superior Court found that the aggravating circumstances qualitatively outweighed the mitigating circumstances, and sentenced Zebroski to death on August 1, 1997.⁷

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We affirmed Zebroski's conviction and sentence on July 28, 1998.⁸ On December 10, 1998, Zebroski filed a pro-se motion for post conviction relief. The Superior Court appointed new counsel for Zebroski. The new counsel filed an amended motion for postconviction relief, and requested leave to expand the record and for a hearing. The Superior Court granted the request, and after a full evidentiary hearing and formal briefing, Superior Court denied Zebroski's Rule 61 motion on August 31, 2001.⁹ Zebroski appealed, and the parties exchanged briefing and participated in oral argument on May 14, 2002. On June 7, 2002, this Court stayed further proceedings “pending issuance of the decision in Arizona v. Ring.¹⁰” On June 24, 2002, the United States Supreme Court issued a decision in the Ring v. Arizona,¹¹ and this Court lifted the stay. We affirmed the Superior Court's denial of Zebroski's motion for post conviction relief on May 14, 2003.¹² The United States Supreme Court denied Zebroski's petition for writ of certiorari on October 6, 2003.¹³

On September 3, 2003, Zebroski filed a Petition for Writ of Habeas Corpus in the District Court. Zebroski filed his second motion for post-conviction relief on November 4, 2003. On December 8, 2003, the Superior Court stayed consideration of Zebroski's second motion for post-conviction relief pending the resolution in the United States District Court of Zebroski's federal habeas action. On February 15, 2008, the Superior Court appointed Jennifer–Kate Aaronson, Esquire to represent Zebroski in his Superior Court proceedings. On July 1, 2008, Zebroski filed a “Motion to Reopen Postconviction Relief”. On March 19, 2009, the Superior Court denied Zebroski's ineffective assistance of counsel claims under the procedural bars of Rule 61(i)(2) and (4), but vacated Zebroski's conviction for felony murder.¹⁴ This appeal followed.

Procedural Bars to Zebroski's Rule 61 Motion

Rule 61(i) provides four procedural bars with exceptions:

Rule 61(i)(1) Time limitation—A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.

Rule 61(i)(2) Repetitive Motion—Any ground for relief that was not asserted in a prior postconviction proceeding ... is thereafter barred, unless consideration of the claim is warranted in the interest of justice.

Rule 61(i)(3) Procedural Default—Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred.

Rule 61(i)(4) Former adjudication—Any ground for relief that was formerly adjudicated,

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whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.

Rule 61(i)(5) Bars inapplicable—The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.¹⁵

Zebroski contends that the Superior Court erred in ruling his claim of ineffective assistance of trial counsel was procedurally barred by Superior Court Rule 61(i)(2) and (4).¹⁶ We review the Superior Court's denial of a motion for post-conviction relief for abuse of discretion. ¹⁷ Questions of law are reviewed de novo.¹⁸ We review claims of a constitutional violation de novo.¹⁹

The Superior Court summarized Zebroski's claims of ineffective assistance of trial counsel as follows: (1) trial counsel was ineffective in investigating and presenting mitigating evidence; ²⁰ (2) trial counsel failed to call thirteen specific witnesses, including Defendant's elementary school guidance counselor, to present mitigating evidence; (3) trial counsel failed to object to the court's using a presentence investigation containing mitigating evidence not presented to the jury; (4) trial counsel was ineffective by unreasonably and prejudicially stipulating to Sarro's statement and thereby conceding Defendant's guilt to felony murder.²¹

Although the Superior Court held that Zebroski's motion was barred by Rule 61(i)(2) and (4), both provisions provide for relief from a procedural default when reconsideration is warranted “in the interest of justice.” ²² The Superior Court held that Zebroski's claim of ineffective assistance “fails at the threshold” because he did not have a right to counsel in his postconviction proceeding.²³ That finding

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does not address the broader issue presented by the interest of justice exception.

The Superior Court denied all of these claims as barred by Rules 61(i)(2) and (4) in one concise paragraph:

Defendant is barred under Rule 61(i)(4) because the court adjudicated ineffective assistance of counsel claims in Defendant's first postconviction motion. Defendant argued several claims against trial counsel, all of which were dismissed by this court and affirmed on appeal....