No. 223, 1999.Supreme Court of Delaware.Submitted: November 2, 1999.
Decided: January 6, 2000.
Appeal from Superior Court of the State of Delaware, in and for Sussex County, CrA Nos. 95-10-0067-68, 95-10-0070-71.
AFFIRMED.
Before HOLLAND, HARTNETT and BERGER, Justices.
ORDER
MAURICE A. HARTNETT, III, Justice
This 6th day of January, 2000, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Rodger L. Rust (“Rust”), filed this appeal from an order of the Superior Court denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (“Rule 61”). We find no merit to the appeal. Accordingly, we AFFIRM.
(2) Rust asserts three grounds for this appeal: first, his trial counsel provided ineffective assistance; second, his identification by the undercover investigating police officer was improperly admitted into evidence; and, third, his appellate counsel provided ineffective assistance. To the extent Rust has not argued other claims that were raised in his postconviction motion, those claims are deemed waived and will not be addressed by this Court.[1]
(3) Rust was convicted by a jury of Delivery of Cocaine and Maintaining a Dwelling for Keeping a Controlled Substance. He was sentenced to a total of 15 years in prison at Level V, to be suspended after serving 10 years for 5 years at Level II probation. Rust’s convictions were affirmed by this Court on direct appeal.[2]
(4) Rust first claims that he received ineffective assistance from his trial counsel. While he raised that claim in the Superior Court, he provided no specific allegations to support it. In this appeal Rust provides specific examples of allegedly deficient representation. Those contentions may not be considered by this Court for the first time on appeal, however.[3] Rust’s claim support his contention 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.[4]
(5) Rust next claims that the Superior Court improperly admitted his identification by the undercover investigating police officer into evidence. He contends that the identification was unduly suggestive because it was based on a single photograph. Rust did not present this claim in his motion for postconviction relief and it may not be considered by this Court for the first time on appeal.[5] Even if the claim were properly before us, it would be procedurally barred.[6] The issue of Rust’s identification by the witness was presented first at the suppression hearing in Superior Court and again in Rust’s direct appeal to this Court. In both instances, the claim was found to be meritless because factors other than the photograph supported the reliability of the officer’s identification of Rust as the suspect.[7] Moreover, there is nothing in the record to suggest that reconsideration of the claim is warranted in the interest of justice.[8]
(6) Rust’s final claim is that he received ineffective assistance from his appellate counsel. Rust contends that his counsel provided ineffective assistance because he relied on cases in his appellate brief which were also cited by this Court in its Order affirming the judgment of the Superior Court. This claim was not raised in the Superior Court and, therefore, may not be considered for the first time on appeal.[9]
Even if considered on its merits, this claim is unavailing. There is nothing in the record suggesting that appellate counsel’s performance fell below an objective standard of reasonableness or that, but for counsel’s alleged errors, the outcome of the proceeding would have been different.[10]
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.