No. 87, 2010.Supreme Court of Delaware.Submitted: June 11, 2010.
Decided: August 2, 2010.
Court Below — Superior Court of the State of Delaware in and for New Castle County, Cr. ID No. 0703031898.
Before STEELE, Chief Justice, HOLLAND
and BERGER, Justices.
ORDER
RANDY J. HOLLAND, Justice.
This second day of August 2010, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, John E. Foster, filed an appeal from the Superior Court’s January 19, 2010 order, which adopted the Commissioner’s October 1, 2009 report recommending that Foster’s motion for postconviction relief pursuant to Superior Court Criminal Rule 61 be denied.[1] We find no merit to the appeal. Accordingly, we affirm.
(2) The record reflects that, in September 2007, Foster was found guilty by a Superior Court jury of Robbery in the Second Degree and Burglary in the Second Degree. He was sentenced as a habitual offender[2] to eighteen years of Level V incarceration.[3] Foster’s convictions were affirmed by this Court on direct appeal.[4]
(3) In this appeal, Foster claims that the Superior Court abused its discretion when it denied his motion for postconviction relief because his counsel provided ineffective assistance in several respects both at trial and on appeal. Specifically, Foster contends that his counsel failed to request appropriate jury voir dire questions, properly obtain forensic reports, raise an improper comment by the prosecutor as an issue on appeal, conduct a live line-up during trial, move for judgment of acquittal at trial, move to dismiss the indictment, and request a missing evidence jury instruction. Foster also claims that the Superior Court failed to address all of his arguments.
(4) In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel’s representation fell below an objective standard of reasonableness and that, but for his counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different.[5] Although not insurmountable, the Strickland standard is highly demanding and leads to a “strong presumption that the representation was professionally reasonable.”[6]
The defendant must make concrete allegations of ineffective assistance, and substantiate them, or risk summary dismissal.[7]
(5) There is no support in the record before us for Foster’s claim that his counsel committed professional errors that prejudiced the outcome of either his trial or his appeal. Foster and the victim knew each other. Foster’s convictions were based on the victim’s identification of him to a neighbor at the time of the crimes and during a photographic line-up. Nothing Foster’s attorney either did or did not do could have altered that fact.
(6) Nor is there is any support for Foster’s claim of abuse of discretion on the part of the Superior Court in denying his motion.
The Superior Court properly obtained Foster’s counsel’s affidavit, which answered in detail all of Foster’s claims, as well as a response from the State and, based upon a thorough and appropriate analysis of his counsel’s actions, found no basis for Foster’s claim of ineffective assistance.
(7) Finally, we reject Foster’s claim that the Superior Court failed to address all of his arguments. Foster’s arguments were presented in a disorganized and often incoherent manner and it is apparent that the Superior Court made sense of them as best it could. For all of the above reasons, we conclude that the Superior Court’s judgment must be affirmed.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
(1984).