State v. Rasin ( 2018 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE §
v. § I.D. No. 1009014476
KEVIN RASIN, §
Defendant §
Submitted: August 13, 2018
Decided: Septernber 21, 2018
On Defendant’s Second Motion for Postconviction Relief.
SUMMARILY DISMISSED.
On Defendant’s Motion for Appointment of Counsel.
DENIED.
M
Maria T. Knoll, Esquire, Deputy Attorney General, Department of Justice,
Wilrnington, Delaware, Attorney for the State.
Kevin Rasin, J ames T. Vaughn Correctional Center, Srnyrna, Delaware, pro se.
COOCH, R.J.
This 21st day of Septernber, 2018, upon consideration of Defendant’s Second
Motion for Postconviction Relief, it appears to the Court that:
l. On March 13, 2012 a jury found Kevin Rasin (“Defendant”) guilty of
Gang Participation, Murder First Degree, Attempted Murder Frist
Degree, two counts of Conspiracy Second Degree, two counts of
Possession of a Firearm by a Person Prohibited, and Possession of a
Firearm During the Cornrnission of a Felony.' The Supreme Court of
l Taylor & Rasl`n v. State, 76 A.3d 791, 796~97 (Del. 2013),
1
DelaWare affirmed Defendant’s conviction on direct appeal on
September 25, 2013.2
Defendant filed his first Motion for Postconviction Relief pro se on
September 18, 2014.3 This Court ordered that counsel be appointed to
represent Defendant.4 Defendant’s appointed counsel filed an amended
motion for postconviction relief on October 31, 2016.5 This Court
denied Defendant’s amended first motion for postconviction relief on
November 17, 2017.6 The Supreme Court of DelaWare affirmed the
denial of Defendant’s amended first motion for postconviction relief on
May 23, 2018.7
Defendant filed a pro se Second Motion for Postconviction Relief on
August 13, 2018. In his Second Motion, Defendant raises eight (8)
grounds for relief:
1. lneffective Assistance of [Post Conviction] Counsel. During post
conviction appeal proceeding, post conviction [counsel] failed to
raise the claim that Juror #11 failed to acknowledge that she and a
family member Were victims of murder. [Counsel] raised said claim
before the DelaWare Superior Court. However he failed to argue this
claim in the post conviction appeal thus failing to preserve this claim
for future proceedings Failure to preserve said issue amounted to
lneffective Assistance of Counsel.
2. lneffective Assistance of Post Conviction Counsel. During post
conviction proceedings [Counsel] failed to raise the claim of
Constructive Denial of Counsel. [Counsel] raised said claim before
the DelaWare Superior Court. However he failed to argue this claim
in the post conviction appeal Thus failing to preserve this claim for
future proceedings Failure to preserve said issue amounts to
lneffective Assistance of Post Conviction Counsel.
2 Taylor & Rasin, 76 A.3d at 797-800, 803 (holding that the DelaWare gang participation statute
Was not unconstitutionally vague and that the Superior Court did not abuse its discretion in
allowing a rap video to be played for the jury, among other issues).
3 Order Denying Postconviction Relief, State v. Rasin, No. 1009014476, at 2 (Del. Super. Ct. Nov.
17, 2017), a]j”a', 187 A.3d 1209 (Table), 2018 WL 2355941 (Del. 2018) (holding that failure to
conduct additional inquiry into a juror’s potential bias Was not unreasonable, and that the jury Was
not improperly influenced by prosecutors’ statements regarding Witness’ testimony).
(’Id. atll.
7 Rasl`n v. State, 187 A.3d 1209 (Table), 2018 WL 2355941, at *4 (Del. 2018).
2
3. lneffective Assistance of [Post Conviction] Counsel. During post
conviction proceedings [Counsel] failed to raise the claim of
lneffective Assistance of Counsel for the false representation of a
report supposedly filed by the analyst that performed the DNA
test.... [Counsel] raised said claim before the Delaware Superior
Court. However he failed to argue this claim in the post conviction
appeal. Thus failing to preserve this claim for future proceedings
Failure to preserve said issue amounts to lneffective Assistance of
Counsel.
4. lneffective Assistance of [Post Conviction] Counsel. During post
conviction proceedings [Counsel] failed to raise the claim of
lneffective Assistance of Counsel for trial counsel’s failure to object
to the state’s use of co-defendants plea agreements [Counsel] raised
said claim before the Delaware Superior Court. However he failed
to argue this claim in the post conviction appeal. Thus failing to
preserve this claim for future proceedings Failure to preserve said
issue amounts to lneffective Assistance of Counsel
5. lneffective Assistance of Post Conviction Counsel. During post
conviction proceedings [Counsel] failed to raise the claim of
lneffective Assistance of Counsel for the continuous [i]mproper
[v]ouching by the prosecution team. [Counsel] raised said claim
before the Delaware Superior Court. However he failed to argue this
claim in the post conviction appeal. Thus failing to preserve this
claim for future proceedings Failure to preserve said issue amounts
to lneffective Assistance of Counsel
6. Plain Error Committed by Trial Court. After [voir dire]
questioning Juror #11 came forward on February 14[,] 2012 to
[n]otify the court[] that she[’]d failed to inform them that she had a
brother that was shot and killed. [S]he went on to inform the court[]
that she[’]d shared the information about her brother being
murderen with a fellow juror. Once Juror 11 admitted talking to
another [j]uror about her brother[’]s murder, trial court should[’]ve
conducted further [voir dire] with the entire jury panel to satisfy
whether [Defendant] had an impartial jury. [Defendant asserts] [t]he
Supreme Court of DelaWare has held “[i]f only one juror is
improperly influenced a defendant in a criminal case is denied his
sixth amendment right to an impartial jury.[”] [no citation] The
Court[’]s failure to question the remaining jurors’ ability to remain
impartial amounted to plain error on its behalf.
7. Plain error Committed by Counsel. Trial Counsel committed plain
error when he failed to raise the issue of [codefendant’s] hearsay
Statements. A [coconspirator] to Gang Participation is not
necessarily a conspirator to Murder. The State intentionally tied the
gang participation charge to the Murder charge in an attempt to
avoid the confrontation issue adopted by the Delaware Supreme
Court in 2000 [no citation]. Counsel failed to raise this issue, thus
not preserving the issue for future proceedings
8. lneffective Assistance of Counsel. Counsel was lneffective for
failing to raise a clear double jeopardy violation. Counsel failed to
raise the Gang Participation as a lesser included charge of
Conspiracy under [11 Del. C. § 206(0)]. Charging [Defendant] with
both Conspiracy 2nd and Gang Participation is a direct Double
Jeopardy violation. Therefor[e] sentencing [Defendant] for both
charges individually amounts to illegal sentencing.8
5. Furthermore, Defendant requests that this Court appoint him counsel
and asks for an evidentiary hearing:
[Defendant] moves for appointment of counsel to aid in forming this
response in leave of court to supplement this response in a
Memorandum of Law. [Defendant] also moves for an evidentiary
hearing to establish matters outside the record in support of this
response[.]9
6. Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction . . . .”'0 Rule
61 requires this Court address certain “preliminary considerations”
prior to addressing any substantive issues raised in a postconviction
motion. " Under Rule 61(i)(2), successive motions are barred unless the
defendant satisfies the pleading requirements of 61(d)(2):
(i) plead[] with particularity that new evidence exists that creates a
strong inference that the movant is actually innocent in fact of the
acts underlying the charges of which he was convicted; or (ii)
plead[] with particularity a claim that a new rule of constitutional
law, made retroactive . . . applies to the movant's case and renders
the conviction . . . invalid.'2
7. Neither exception to subsequent motions applies here. Defendant does
not plead with particularity that new evidence exists, or that a new
constitutional rule applies retroactively. Defendant acknowledges that
atleast some of his present claims were “raised. . .before the Delaware
8 Def.’s Second Mot. for Postconviction Relief, at 3-5.
9 Id. at 3.
10 Del. Super. Ct. Crim. R. 61(a)(1).
ll Del. Super. Ct. Crim. R. 6l(d).
12 Del. Super. Ct. Crim. R. 61(d)(2)(i)&(ii).
Superior Court” in prior proceedings13 Defendant now merely asserts
his postconviction counsel improperly handled the prior postconviction
appeal. Defendant does not offer any new evidence that would create
an inference-let alone a strong inference_that he is actually innocent
in fact.
8. Accordingly, as Defendant has failed to overcome the preliminary
procedural bar to successive motions for postconviction relief,
Defendant’s Second Motion for Postconviction Relief is summarily
dismissed, as required by Rule 61(d)(2).
9. Additionally, Defendant’s request for appointment of counsel is denied.
The Court may appoint counsel for a defendant’s second or subsequent
postconviction motion only if “the judge determines the second or
subsequent motion satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d)[.]”14 As discussed
above, Defendant’s motion fails to meet the pleading requirements of
Rule 61(d)(2)(i) or (ii).
Therefore, Defendant’s Second Motion for Postconviction Relief is
SUMMARILY DISMISSED. Defendant’s Motion for Appointment of Counsel is
DENIED.
IT IS SO ORDERED.
\MJ M$‘l/L
Richard R. Cooch, R.J.
cc: Prothonotary
Investigative Services
'3 Def.’s Second Mot., at 3.
'4 Del. Super. Ct. Crim. R. 61(e)(5).