State v. Cushner ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
v. ) ID Nos. 1710011753
) Cr. A. Nos. IN17-11-0345, etc.
RICHARD M. CUSHNER, )
Defendant.)
Submitted: November 6, 2020
Decided: December 1, 2020
ORDER DISMISSING MOTION FOR POSTCONVICTION RELIEF
AND GRANTING COUNSEL’S MOTION TO WITHDRAW
(1) This 1st day of December, 2020, upon consideration of Defendant
Richard M. Cushner’s Motion for Postconviction Relief (D.I. 39), his postconviction
attorneys’ Motion to Withdraw and supplement (D.I. 50 and 51), and the record in
this case, it appears to the Court that:
(2) In July 2018, following a two-day jury trial, Richard M. Cushner, was
convicted of one count of third degree burglary and related criminal mischief
charges.1
(3) Several months later, Cushner was sentenced to serve, inter alia, a
prison term under the provisions of the Habitual Criminal Act.2
1
D.I. 15.
2
D.I. 20-21.
(4) Cushner filed a direct appeal to the Delaware Supreme Court. His
convictions and sentence were affirmed.3
(5) Cushner then filed a first and timely pro se motion for postconviction
relief under Superior Court Criminal Rule 61 and a request for appointment of
counsel to assist him with that motion.4 In sum, Cushner’s pro se prolix filing
devolved to two main contentions with numerous subparts: (1) a claim of ineffective
assistance of counsel complaining that his trial counsel failed to object to a leading
question, failed to properly conduct cross-examination of a key witness, and failed
to call witnesses he believed would provide exculpatory evidence; and
(2) a sufficiency of evidence claim.
(6) In accord with this Court’s Criminal Rule 61(e), Cushner was appointed
postconviction counsel (“PCR Counsel”).5 PCR Counsel have now filed a Motion
to Withdraw pursuant to Rule 61(e)(7) with a detailed supporting memorandum.6
PCR Counsel assert that, based upon a careful and complete examination of the
record, there are no meritorious grounds for relief.
3
Cushner v. State, 214 A.3d 443 (Del. 2019).
4
D.I. 39 and 40.
5
D.I. 43.
6
D.I. 50 and 51.
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(7) Under this Court’s Criminal Rule 61(e)(7):
If counsel considers the 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.
The motion shall explain the factual and legal basis for
counsel’s opinion and shall give notice that the movant
may file a response to the motion within 30 days of service
of the motion upon the movant.7
(8) Cushner’s PCR Counsel have represented that, after careful review of
Cushner’s case, they have determined that Cushner’s claims are so lacking in merit
that they cannot ethically advocate them; and further, that PCR Counsel are not
aware of any other substantial ground for relief.8 PCR Counsel provided Cushner
with a copy of the Motion and advised Cushner of his ability under Rule 61(e)(7) to
file a response within 30 days.9 Cushner filed no such response.
(9) The Court gave Cushner an additional opportunity to file any response
to the motion to withdraw and notice that the Court had—as required by Criminal
Rule 61(d)—carefully reviewed his filings, those of postconviction counsel, and the
complete record of the prior proceedings in this case. The Court gave further notice
that from that thorough review, it plainly appeared that Cushner was not entitled to
7
SUPER. CT. CRIM. R. 61(e)(7).
8
Mot. to Withdraw at 27.
9
D.I. 50.
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postconviction relief. And so, the Court warned that Cushner’s continued failure to
file either a response to the motion to withdraw or other notice of his intent to further
prosecute his postconviction application would be deemed his consent to the Court’s
entry of summary dismissal under Criminal Rule 61(d)(5).10 Again, Cushner has
failed to respond.
(10) “In order to evaluate [Cushner’s Motion for Postconviction Relief], and
to determine whether [PCR Counsel’s Motion to Withdraw] should be granted, the
court should be satisfied that [PCR Counsel] made a conscientious examination of
the record and the law for claims that could arguably support [Cushner’s] Rule 61
motion. In addition, the court should conduct its own review of the record in order
to determine whether [Cushner’s] Rule 61 motion is devoid of any, at least, arguable
postconviction claims.”11
(11) Having reviewed the record carefully, the Court has concluded that
Cushner’s initial pro se claims (which he now appears to have abandoned) are
without merit, that no other substantial ground for relief exists, and it plainly appears
that Cushner is not entitled to postconviction relief. Accordingly, Cushner’s Motion
10
(D.I. 70).
11
State v. Coston, 2017 WL 6054944, at *2 (Del. Super. Ct. Dec. 7, 2017) (internal citations and
quotations omitted).
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for Postconviction Relief is DISMISSED under Criminal Rules 61(d)(5) and (e)(7)
and PCR Counsel’s Motion to Withdraw is GRANTED.
IT IS SO ORDERED,
/s/ Paul R. Wallace
Paul R. Wallace, Judge
Original to Prothonotary
cc: Mr. Richard Cushner, pro se
Brian L. Arban, Deputy Attorney General
Marc C. Petrucci, Deputy Attorney General
Patrick J. Collins, Esquire
Kimberly A. Price, Esquire
Nicole M. Walker, Esquire
Andrew J. Meyer, Esquire
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