State v. Foster

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )
)
v. ) I.D. No. 2402005739
)
DARREN FOSTER, )
)
Defendant. )

Submitted: December 23, 2024
Decided: March 11, 2025

Upon Defendant Darren Foster’s Motion for Postconviction Relief
DENIED

ORDER

Jillian L. Schroeder, Esquire, Deputy Attorney General, DEPARTMENT OF
JUSTICE, 820 North French street, Wilmington, DE 19801, Attorney for State of
Delaware.

Darren Foster, Howard R. Young Correctional Institution, P.O. Box 9561,
Wilmington, DE 19809, Defendant, pro se.

WHARTON, J.
This 11th day of March 2025, upon consideration of Defendant Darren Foster’s

(“Foster”) timely pro se Motion for Post-conviction Relief, 1 the affidavit of trial

counsel, 2 the State’s Response, 3 and the record in this matter, it appears to the Court

that:

1. Foster pled guilty to Possession of a Firearm by a Person Prohibited

(“PFBPP”) and Resisting Arrest on August 19, 2024. 4 In the plea agreement, the

State agreed to recommend 15 years at level V, suspended after the five year

minimum mandatory sentence at Level V required by statute on the PFBPP charge

and a fine on the Resisting Arrest charge. 5 The State agreed to waive pursuing

habitual offender sentencing. 6 Foster was sentenced the same day consistent with

the recommendation in the plea agreement.7

2. This Motion for Post-conviction Relief (“Motion”) pursuant to Superior

Court Criminal Rule 61, Foster’s first, was filed timely on November 1, 2024. The

motion raises three claims of ineffective assistance of counsel (“IAC”): (1) “lawyer

failed to raise question about officer’s contradicting testimony that negatively

impacted the outcome of the case”; (2) “lawyer failed to pursue testimony that there

1
D.I. 27.
2
D.I. 31.
3
D.I. 32.
4
D.I. 22.
5
Id.
6
Id.
7
D.I. 23.
2
was no crime committed necessitating a stop, detainment, nor arrest there was no

reasonable articulable suspicion;” (3) “lawyer failed to purse officer’s testimony that

contained material false statements of facts. Lawyer failed to research relevant

precedent case law supporting my case.”8

3. The Court directed Foster’s trial/plea counsel, Darryl J. Rago, Esquire,

to respond to the specific IAC allegations relating to Mr. Rago’s representation.9 Mr.

Rago responded on December 16, 2024.10 By way of background, Mr. Rago explains

that Foster was eligible to be sentenced as an habitual offender if convicted. 11 In

particular, he faced a 15-year minimum mandatory sentence on the PFBPP charge

after he rejected a first case review plea offer of a 5-year minimum mandatory

sentence on that charge without the State seeking to have him sentenced as an habitual

offender. 12 Mr. Rago then filed a suppression motion, resulting in the State modifying

its offer to a CCDW charge with a recommended 2 ½ year sentence, which Foster

rejected. 13 After a suppression hearing resulting in denial of the motion, the State

again offered its original plea which foster accepted.14

8
D.I. 27.
9
D.I 30.
10
D.I. 31.
11
Id.
12
Id.
13
Id.
14
Id.
3
4. Mr. Rago then responds to the specific allegations of IAC. As to Foster’s

first claim, Mr. Rago finds it too lacking in specificity to address.15 As to Foster’s

second claim, Mr. Rago states that both the suppression motion and his cross-

examination of the officer challenged the legal basis for stopping Foster. 16 Finally,

Mr. Rago addresses Foster’s third claim. Again, he notes that the lack of specificity

regarding what materially false statements Foster is referencing makes responding

difficult.17 He states that he cross-examined the officer at the hearing, by utilizing the

police reports and the body worn cameras of multiple police officers. 18 He denies

Foster’s allegation that he failed to research relevant case law precedent, pointing out

that he discussed the case law in both the suppression motion and the State’s response

with Foster. 19

5. The State responded and opposed the motion. It concurs with Mr. Rago

that Foster’s first claim lacks specificity.20 It adds that it introduced into evidence a

911 call and the body worn camera of the officer both of which spoke for themselves

as evidence of what occurred. 21 It argues that Foster has failed to show how any

additional cross-examination questions or testimony would have resulted in a

15
Id.
16
Id.
17
Id.
18
Id.
19
Id.
20
State’s Resp. at 8, D.I. 32.
21
Id.
4
different outcome for him.22 As to Foster’s second claim that Mr. Rago did not pursue

the officer’s testimony that no crime was committed and, thus, there was no

reasonable articulable suspicion for stopping Foster, the State states that Foster is

incorrect.23 The basis of the motion was just that – the officer lacked reasonable

articulable suspicion to stop Foster.24 Regarding Foster’s third claim, the State again

concurs with Mr. Rago that Foster failed to specify what materially false statements

were at issue and that he cited relevant case law and statutes in the motion and in

argument.25

6. Rule 61 is the exclusive remedy for those “in custody under a sentence

of this court seeking to set aside the judgment of conviction…” 26 This Rule balances

finality “against … the important role of the courts in preventing injustice.” 27

7. Before addressing the merits of a defendant’s motion for postconviction

relief, the Court must first apply the procedural bars of Superior Court Criminal Rule

61(i).28 If a procedural bar exists, then the Court will not consider the merits of the

postconviction claim. 29 Under Delaware Superior Court Rules of Criminal

Procedure, a motion for postconviction relief can be barred for time limitations,

22
Id.
23
Id.
24
Id. at 8-9.
25
Id. at 9.
26
Super. Ct. Crim. R. 61(a)(1).
27
Zebroski v. State, 12 A.3d 1115, 1120 (Del. 2010) (citation omitted).
28
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
29
Id.
5
repetitive motions, procedural defaults, and former adjudications. A motion exceeds

time limitations if it is filed more than one year after the conviction becomes final

or if it asserts a newly recognized, retroactively applied right more than one year

after it was first recognized. 30 A second or subsequent motion is repetitive and

therefore barred. 31 The Court considers a repetitive motion only if the movant was

convicted at trial and the motion pleads with particularity either: (1) actual

innocence; 32 or (2) the application of a newly recognized, retroactively applied rule

of constitutional law rendering the conviction invalid.33 Grounds for relief “not

asserted in the proceedings leading to the judgment of conviction” are barred as

procedurally defaulted unless the movant can show “cause for relief” and “prejudice

from [the] violation.” 34 Grounds for relief formerly adjudicated in the case,

including “proceedings leading to the judgment of conviction, in an appeal, in a post-

conviction proceeding, or in a federal habeas corpus hearing” are barred.35

Additionally, “[t]his Court will not address claims for post-conviction relief that are

conclusory and unsubstantiated.”36

30
Super. Ct. Crim. R. 61(i)(1).
31
Super. Ct. Crim. R. 61(i)(2).
32
Super. Ct. Crim. R. 61(d)(2)(i).
33
Super. Ct. Crim. R. 61(d)(2)(ii).
34
Super. Ct. Crim. R. 61(i)(3).
35
Super. Ct. Crim. R. 61(i)(4).
36
State v. Guinn, 2006 WL 2441945, at *4 (Del. Super. Aug 16, 2021). See also
Gattis v. State, 697 A.2d 1174, 1178-79 (Del. 1997); Younger, 580 A.2d at 556;
State v. McNally, 2011 WL 7144815, at *5 (Del. Super. Nov. 16 2011); State v.
Wright, 2007 WL 1982834, at *1 n.2 (Del. Super. July 5, 2007).
6
8. To successfully bring an IAC claim, a claimant must demonstrate: (1)

that counsel’s performance was deficient; and (2) that the deficiencies prejudiced

the claimant by depriving him or her of a fair trial with reliable results.37 To prove

counsel’s deficiency, a defendant must show that counsel’s representation fell below

an objective standard of reasonableness.38 Moreover, a defendant must make

concrete allegations of actual prejudice and substantiate them or risk summary

dismissal. 39 “[A] court must indulge in a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance.” 40 A successful

Sixth Amendment claim of IAC requires a showing “that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.”41 When addressing the prejudice prong of the IAC test

in the context of a challenged guilty plea, an inmate must show “that there is a

reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.”42

37
Strickland v. Washington, 466 U.S. 668, 688 (1984).
38
Id. at 667-68.
39
Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
40
Strickland, 446 U.S. at 689.
41
Id. at 694.
42
Albury v. State, 551 A.2d 53, 59 (Del. 1988) (citing Hill v. Lockhart, 474 U.S.
52, 58 (1985)); Sartin v. State, 2014 WL 5392047, at *2 (Del. Oct. 21, 2014); State
v. Hackett, 2005 WL 30609076, at *3 (Del. Super. Ct. Nov. 15, 2005).
7
9. An inmate must satisfy the proof requirements of both prongs to

succeed on an IAC claim. Failure to do so on either prong will doom the claim and

the Court need not address the other. 43

10. The Court finds, and the State, does not dispute, that none of the

procedural bars of Rule 61(i) are present here. The motion is a timely first

postconviction relief motion alleging IAC. Nevertheless, the motion fails for a

variety of fundamental reasons. First, it never alleges that, but for Mr. Rago’s

alleged ineffectiveness, there was a reasonable probability he would not have

pleaded guilty and insisted on going to trial. Given that his suppression motion was

denied, a conviction was very likely, as was a substantially longer sentence as an

habitual offender. Pleading guilty with the State recommending the minimum

mandatory sentence was the rational choice.

11. Instead, Foster implicitly suggests that, but for Mr. Rago’s alleged

ineffectiveness, the evidence against him would have been suppressed, meaning that

there would be no trial. Apparently, it was Mr. Rago’s claimed ineffectiveness that

resulted in the denial of the motion. The Court will not address claims that are

conclusory and are unsubstantiated. Additionally, a defendant must make concrete

allegations of actual prejudice and support them. Here, two of Foster’s allegations

lack any specificity. In his first claim, he fails to identify what “contradicting

43
Strickland, 466 U.S. at 697; Ploof v. State, 75 A.3d 811, 825 (Del. 2013)
(“Strickland is a two-pronged test, and there is no need to examine whether an
attorney performed deficiently if the deficiency did not prejudice the defendant.”).
8
testimony” from the police officer he claims Mr. Rago allegedly failed to pursue. In

his third claim he fails to identify the officer’s “material false statements of fact” Mr.

Rago failed to pursue or what “relevant precedent case law” Mr. Rago failed to

research. These general allegations of ineffectiveness can support neither a claim of

performance deficiency, nor one of prejudice.

12. Foster’s second claim fails both Strickland prongs, as well. Mr. Rago

challenged the basis of the police officer’s stop of Foster both in the suppression

motion and in cross-examining the officer. In fact, the Motion to Suppress was based

on a challenge to the basis for the stop. 44 In this case, though, the Court had not only

the 911 call initiating the investigation, but also the video from the officer’s body

worn camera of her encounter with Foster. The Court could hear and see for itself

whether there was reasonable articulable suspicion to stop Foster independent of the

officer’s testimony. Therefore, no alleged deficiencies in cross-examination or

argument could have caused Foster to suffer any prejudice.

THEREFORE, Defendant Darren Foster’s motion for Postconviction Relief

is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton, J.

44
Def.’s Mot. to Suppress, I.D. 13.
9