State v. Keys ( 2020 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
September 9, 2020
Spencer Lee Keys
f/k/a Terry A. Ridenour
SBI #00218605
Sussex Correctional Institution
P.O. Box 500
Georgetown, DE 19947
Thomas A. Pedersen, Esquire
115 South Bedford Street
Georgetown, DE 19947
Department of Justice
114 East Market Street
Georgetown, DE 19947
Re: State of Delaware v. Spencer Lee Keys f/k/a Terry A. Ridenour
Def. ID# 1810001625 (R-1)
Motion for Postconviction Relief and Appointment of
Postconviction Counsel
and
Motion for Reduction of Sentence
Dear Mr. Keys and Counsel:
On March 16, 2020, April 23, 2020 and May 29, 2020, Spencer Lee Keys f/k/a
Terry A. Ridenour (“Keys” or “Movant”) timely filed his first Motion for
Postconviction Relief and Request for the Appointment of Postconviction Counsel
under Delaware Superior Court Criminal Rule 61 (these three pleadings,
collectively, the “Rule 61 Motion”) in connection with the above-referenced case.
On August 31, 2020, Keys filed a Motion for Sentence Modification (Reduction of
Sentence) under Delaware Superior Court Criminal Rule 35(b) (the “Rule 35(b)
Motion”) (the Rule 61 Motion and the Rule 35(b) Motion, collectively, the
‘“Motions”). This is my decision on both Motions.
Keys was charged with a sixth offense of driving under the influence of
alcohol and/or drugs (“DUI”) and possession of drug paraphernalia. Keys was
represented at trial by Thomas A. Pedersen, Esquire (“Trial Counsel”). The case
was tried to a jury, which convicted Keys on both charges. I sentenced Keys on the
DUI offense to eight years of imprisonment at level 5 (with credit for 49 days already
served), suspended after two years and completion of the Key Program for one year
at level 3 and completion of an intensive outpatient treatment program. I sentenced
Keys on the possession of drug paraphernalia offense concurrently to six months at
level 5, suspended for six months at level 3 and completion of an intensive outpatient
treatment program. Keys did not take a direct appeal to the Delaware Supreme
Court from the judgment of conviction.
Rule 61 Motion
Before addressing the merits of the Rule 61 Motion, I first address the four
procedural bars of Superior Court Criminal Rule 61(i).!_ If a procedural bar exists,
as a general rule I will not address the merits of the postconviction claim.?_ Under
the Delaware Superior Court Rules of Criminal Procedure, a motion for post-
conviction relief can be barred for time limitations, successive motions, failure to
raise claims that could have been raised, or former adjudication.
First, a motion for postconviction relief exceeds time limitations if it is filed
more than one year after the conviction becomes 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 was first recognized by the Supreme Court of
Delaware or the United States Supreme Court.‘ In this case, Keys’ conviction
became final for purposes of Rule 61 thirty (30) days after I imposed sentence on
November 13, 2019, because he did not file a direct appeal.5 Keys filed his pro se
1 Ayers v. State, 802 A.2d 278, 281 (Del.2002) (citing Younger v. State, 580 A.2d 552, 554 (Del.
1990).
2 Bradley v. State, 135 A.3d 748 (Del 2016); State v. Page, 2009 WL 1141738, at*13 (Del.
Super. April 28, 2009).
3 Super. Ct. Crim. R. 61(i).
4 Super. Ct. Crim. R. 61(4)(1).
5 Super. Ct. Crim. R. 61(m)(1).
Rule 61 Motion on March 16, 2020, April 23, 2020 and May 29, 2020, all within the
one-year period. Therefore, consideration of the Rule 61 Motion is not barred by the
one-year limitation.
Second, second or subsequent motions for postconviction relief are not
permitted unless certain conditions are satisfied.6 Since this is Keys’ first Rule 61
Motion, these restrictions do not apply.
Third, procedural grounds for relief “not asserted in the proceedings leading to
the judgment of conviction” are barred unless the movant can show “cause for relief”
7 The only ground resembling a procedural
and “prejudice from [the] violation.”
defect is the use by the State of the former name of Movant, which was changed on
February 23, 2009 by the Court of Common Pleas, instead of his current name. This
bar does not apply in this case because Movant did not assert this claim at trial and
has thus waived the claim. No cause for relief or prejudice from the violation can be
shown; there is no question whatsoever as to the identity of Movant at any stage of
the proceedings.
Fourth, grounds for relief formerly adjudicated in the case, including
“proceedings leading to the judgment of conviction, in an appeal, in a post-conviction
6 Super. Ct. Crim. R. 61(i)(2)
7 Super. Ct. Crim. R. 61(4)(3).
proceeding, or in a federal habeas corpus hearing” are barred.® One of Keys’ grounds
is based on claims of ineffective assistance of counsel. It is well settled Delaware
law that, as collateral claims, ineffective assistance of counsel claims are properly
raised for the first time in postconviction proceedings.’ Indeed, Keys did not appeal
to the Delaware Supreme Court.
Finally, the four procedural bars to do not apply either to a claim that the Court
lacked jurisdiction or to a claim that pleads with particularity that new evidence exists
° or that a new retroactively
that creates a strong inference of actual innocence,!
applied rule of constitutional law renders the conviction invalid.'’ Keys claims that
there is a lack of evidence on the record to support his DUI conviction, but he never
claims that he has new evidence that creates an inference of his actual innocence.
Thus, none of the procedural bars under Rule 61 applies in this case, and I will
consider Keys’ claims on the merits.
8 Super. Ct. Crim. R. 61(i)(4).
9 State v. Schofield, 2019 WL 103862, at *2 (Del. Super. January 3, 2019); Thelemarque v. State,
2016 WL 556631, at *3 (Del. Feb. 11, 2016) (“[T]his Court will not review claims of ineffective
assistance of counsel for the first time on direct appeal.”); Watson v. State, 2013 WL 5745708, at
*2 (Del. Oct. 21, 2013) (“It is well-settled that this Court will not consider a claim of ineffective
assistance that is raised for the first time in a direct appeal.”).
10 Super. Ct. Crim, R. 61(i)(5).
11 Super. Ct. Crim. R. 61(d)(2)() and (ii).
Keys asserts three grounds in his Motion: ineffective assistance of Trial
Counsel, legal name change, and lack of evidence. J have already disposed of the
legal name change issue.
Ineffective Assistance of Trial Counsel
Keys asserts that Trial Counsel failed to obtain video evidence from the Royal
Farms security camera and an officer’s audio/bodycam to “prove that he blew .85”
in the field sobriety test. He asserts that this evidence could have changed the verdict.
Claims of ineffective assistance of counsel are assessed under the two-part
standard established in Strickland v. Washington, '* as applied in Delaware."
Under Strickland, Keys must show that (1) Trial Counsel’s representation “fell
below an objective standard of reasonableness” (the “performance part”); and, (2)
the “deficient performance prejudiced [his] defense” (the “prejudice part”).!4 In
considering the performance part, the Strickland Court was mindful that “[S]trategic
choices made after thorough investigation of law and facts relevant to plausible
915
options are virtually unchallengeable. Strickland requires an objective analysis,
making every effort “to eliminate the distorting effects of hindsight” and to “indulge
12 466 U.S. 668 (1984).
13 Albury v. State, 551 A.2d 53 (Del. 1988).
14 Id. at 687.
15 Id. at 690.
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” !® Moreover, “strategic choices about which lines of
defense to pursue are owed deference commensurate with the reasonableness of the
professional judgments on which they are based.”!”
As to the performance part, Keys must show that Trial Counsel’s performance
was not strategically reasonable. In my view, the performance by Trial Counsel
was strategically reasonable. Thus, Trial Counsel’s strategic decisions do not
amount to ineffective assistance of counsel, as discussed more fully below.
As to the prejudice part of Strickland, Keys must demonstrate that there exists
a reasonable probability that, but for Trial Counsel’s unprofessional errors, the
outcome of the trial would have been different.'® Even if Trial Counsel’s
performance were professionally unreasonable, it would not warrant setting aside
the judgment of conviction if the error had no effect on the judgment.!? A showing
of prejudice “requires more than a showing of theoretical possibility that the
outcome was affected.””° In my view, even if Trial Counsel’s strategic decisions
16 Id. at 689.
17 Id. at 681.
18 Id. at 687; Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Wright v. State, 671 A.2d
1353, 1356 (Del. 1996).
19 Strickland, at 691.
20 Frey v. Fulcomer, 974 F.2d 348, 358 (3d Cir. 1992).
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were deemed to constitute ineffective assistance of counsel, the ultimate outcome of
the trial would not have been different. Thus, Trial Counsel’s strategic decisions
did not prejudice Keys’ defense under the prejudice part of the Strickland test.
Strickland also teaches that there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in a particular order, or even to
address both parts of the inquiry if the defendant makes an insufficient showing on
one. If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, that course should be followed.?! In every case, the court
should be concerned with whether, despite the strong presumption of reliability, the
result of the particular proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just results.”
I requested and reviewed an affidavit from Trial Counsel (the “Affidavit”) in
connection with Movant’s claims. With respect to Movant’s allegation that Trial
Counsel failed to obtain exculpatory video evidence from Royal Farms, Trial
Counsel points out that Movant admitted driving the car, was observed by a civilian
driving erratically on Route 13, and was observed by the officer driving from one
side of the parking lot to the other. With respect to Movant’s allegation that Trial
21 Strickland, at 697.
22 Id. at 696.
Counsel failed to obtain video or audio from the officer’s bodycam, Trial Counsel
points out that, since the preliminary breath test reading was .85, which exceeds the
legal limit of .08, evidence from the bodycam would have been of no avail. I find
that, absent the Royal Farms video and the bodycam audio and video, there was still
substantial evidence from which the jury could, and did, conclude that Movant was
under the influence of alcohol, drugs, or both.
Based upon Trial Counsel’s Affidavit and the record, my opinion is that Trial
Counsel represented his client effectively and well, and there is no support for Keys’
claim of ineffective assistance of counsel.
Lack of Evidence
Keys argues that the State did not present sufficient evidence at trial to support
his conviction for a sixth offense of driving under the influence of alcohol and/or
drugs (“DUI”) and possession of drug paraphernalia. Specifically, he argues that his
blood draw occurred two hours after his arrest, he took one hit of crack cocaine while
in the Royal Farms parking lot (an incriminating fact), and no keys were present in
the vehicle. However, after all the evidence was presented at trial, Keys did not move
for a judgment of acquittal23 (formerly known as a motion for a directed verdict)
23 Super. Ct. Crim. R. 29(a).
based on the insufficiency of the evidence to support the charges against him. Since
Keys did not claim that the evidence was insufficient at trial by way of a motion for
judgment of acquittal, he waived that argument, and the alleged error was not
properly preserved for the collateral Rule 61 Motion, unless he showed cause for
relief and prejudice.24 Keys showed neither.
Appointment of Postconviction Counsel
Rule 61 provides that I shall appoint counsel for Keys if his first
Postconviction Motion seeks to set aside, inter alia, a judgment of conviction after
a trial that has been affirmed by final order upon direct appellate review and is for
a crime designated as a class A, B, or C felony under 11 Del. C. §4205(b).25 In
this case, Keys did not take a direct appeal to the Delaware Supreme Court, so there
is no final order of that Court. Moreover, The DUI offense of which Keys was
convicted is a Class D felony.26
Rule 61 further provides that I may I may appoint counsel for any other first
Postconviction Motion only if I determine that: (i) the motion is an indigent movant's
first timely postconviction motion and request for appointment of counsel; (ii) the
motion seeks to set aside a judgment of conviction after a trial that has been affirmed
24 Mathis v. State, 950 A.2d 659 (Del. 2008).
25 Super. Ct. Crim. R. 61(e)(1).
26 21 Del. C. §4177(d)(6).
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by final order upon direct appellate review; (iii) the motion sets forth a substantial
claim that the movant received ineffective assistance of trial or appellate counsel;
(iv) the motion sets forth a substantial claim that the movant is in custody in violation
of the United States Constitution or the Delaware Constitution; (v) granting the
motion would result in vacatur of the judgment of conviction for which the movant
is in custody; and (vi) specific exceptional circumstances warrant the appointment
of counsel.27 As discussed above, only condition (i) of these conditions is satisfied.
None of the other conditions is satisfied.
For these reasons, I deny Key’s request for the appointment of postconviction
counsel.
Rule 35(b) Motion
Superior Court Rule 35(b) provides in pertinent part:
The court may reduce a sentence of imprisonment on a motion made
within 90 days after the sentence is imposed ... The court will consider
an application made more than 90 days after the imposition of sentence
only in extraordinary circumstances ... A motion for reduction of
sentence will be considered without presentation, hearing or argument
unless otherwise ordered by the court.
In this case. Sentence was imposed on November 13, 2019. Movant did not
file his Rule 35(b) Motion within 90 days thereafter. Moreover, Movant has failed
27 Super. Ct. Crim. R. 61(e)(3).
1]
to demonstrate any “extraordinary circumstance” for his late filing. He claims that
he was unaware of the ability to file a motion for sentence reduction, that he assumed
his counsel would have filed such a motion, and that, as a self-represented Movant,
he is unfamiliar with legal matters. None of these is the types of “extraordinary
circumstance” recognized by Delaware law to support sentence reduction. 28
Moreover, the grounds stated in his Rule 35(b) Motion are essentially a rehash of
the grounds stated in his Rule 61 Motion. Therefore, I deny the Rule 35(b) Motion
as untimely.
Conclusion
Rule 61 provides for summary dismissal of the Motion if it plainly appears
from both the Motion itself and the record of prior proceedings in the case that
Movant is not entitled to relief.29 Therefore, for the reasons set forth above, I am
entering an Order for summary dismissal and causing Movant to be notified of the
dismissal. The Motion for Postconviction Relief is DISMISSED.
28 Ketchum vy. State, 801 A.2d 10 (Del. 2002); Hickman vy. State, 839 A. 2d 666 (Del. 2003);
Fenimore v. State, 839 A.2d 665 (Del. 2003); Reid v. State, 947 A.2d 1123 (Del. 2007).
29 Super. Ct. Crim. R. 61(d)(5).
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Further, none of the requirements of Rule 61 for either mandatory or
discretionary appointment of postconviction counsel is satisfied. The Request for
Appointment of Postconviction Counsel is DENIED.
Finally, Movant demonstrates none of the extraordinary circumstances
required for a reduction of his sentence under Rule 35(b). The Motion for Sentence
Modification (Reduction of Sentence) is DENIED.
IT IS SO ORDERED.
Very truly yours,
Oy, lar
Craig A. Karsnitz
cc: Prothonotary
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