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Appellant Roger Johnson was convicted of two counts of robbery in the first degree and possession of a firearm during the commission of a felony and one count of conspiracy in the second degree. Johnson filed a petition for postconviction relief, alleging, in pertinent part, that his trial counsel was ineffective for failing to request a jury instruction under Del. Code Ann. tit. 11, 274 (a 274 jury instruction). The superior court denied Johnson's petition in 2007. Johnson subsequently filed a second petition for postconviction relief, again arguing that his trial counsel was ineffective for failing to request a 274 jury instruction and citing the Supreme Court's 2009 decision in Allen v. State. The superior court denied Johnson's motion as procedrually barred. The Supreme Court affirmed, holding (1) the superior court properly denied Johnson's second postconviction motion as procedurally barred, and (2) the issue of the 274 jury instruction did not warrant exceptional consideration.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
ROGER L. JOHNSON,
STATE OF DELAWARE,
No. 440, 2011
Court Below—Superior Court
of the State of Delaware in and
for Kent County
Cr. ID No. 9908000065
Submitted: October 31, 2011
January 25, 2012
Before HOLLAND, BERGER and JACOBS, Justices.
This 25th day of January 2012, upon consideration of the appellant’s opening
brief and the appellee’s motion to affirm pursuant to Supreme Court Rule 25(a), it
appears to the Court that:
The appellant, Roger L. Johnson, filed this appeal from the Superior
Court’s denial of his second motion for postconviction relief pursuant to Superior
Court Criminal Rule 61 (“Rule 61”). The appellee, State of Delaware, has moved
to affirm the judgment of the Superior Court on the ground that it is manifest on
the face of Johnson’s opening brief that the appeal is without merit.1
Del. Supr. Ct. R. 25(a).
In May 2000, a Superior Court jury convicted Johnson of two counts
of Robbery in the First Degree and Possession of a Firearm During the
Commission of a Felony, and one count of Conspiracy in the Second Degree.
Johnson was sentenced to eighty years at Level V. On direct appeal, this Court
affirmed Johnson’s convictions and sentence.2
Johnson filed his first motion for postconviction relief in May 2005.
Johnson alleged, in pertinent part, that his trial counsel was ineffective for failing
to request a jury instruction under title 11, section 274 of the Delaware Code
(hereinafter “§ 274 jury instruction”).3 According to Johnson, had his counsel
requested a § 274 jury instruction, he would not have been convicted of Robbery in
the First Degree.
By report and recommendation dated March 16, 2007, a Superior
Court Commissioner determined that Johnson’s ineffective assistance of counsel
claim was without merit, because a § 274 jury instruction was not supported by the
evidence and would have detracted from the defense theory that Johnson was
merely present at the scene. By order dated August 29, 2007, the Superior Court
adopted the Commissioner’s report and denied Johnson’s first postconviction
Johnson v. State, 2002 WL 1343761 (Del. Supr.).
Under section 274, when two or more people are criminally liable for an offense that is divided
into degrees, “each person is guilty of an offense of such degree as is compatible with that
person’s own culpable mental state and with that person’s own accountability for an aggravating
fact or circumstance.” Del. Code Ann. tit. 11, § 274 (2007).
motion. On appeal, we affirmed the Superior Court’s decision, concluding, in
pertinent part, that “there was no basis for the [§ 274 jury] instruction that Johnson
contends his counsel should have sought.”4
Johnson filed his second postconviction motion on September 23,
2009. Citing our 2009 decision in Allen v. State, Johnson again argued that he was
entitled to a § 274 jury instruction, and that his trial counsel was ineffective for
failing to request the instruction (hereinafter “the § 274 issue”).5 By order dated
July 27, 2011, the Superior Court denied Johnson’s motion as procedurally barred
under Rule 61(i).6 This appeal followed.
On appeal, the Court concludes that the Superior Court properly
denied Johnson’s second postconviction motion as procedurally barred, and that
the § 274 issue does not warrant exceptional consideration.7 First, Allen is not
retroactive.8 Second, Johnson’s facts are distinguishable.
In Allen, the Court explained that “section 274 contemplates the
possibility that an accomplice defendant, who was wholly unaware of another
Johnson v. State, 2008 WL 1778241 (Del. Supr.).
In Allen v. State, a majority of the Court held that the Superior Court’s failure to give a § 274
jury instruction constituted reversible error. In an effort to reconcile prior decisions, Allen
further ruled that any prior decision inconsistent with the Allen holding was “overruled.” Allen
v. State, 970 A.2d 203, 214 (Del. 2009).
See Del. Super. Ct. Crim. R. 61(i) (listing procedural bars to relief).
See id. (providing exceptions to the procedural bars).
Richardson v. State, 3A, 3d 233 (Del. 2010).
participant’s intent to use a gun in a robbery, could not be convicted of Robbery in
the First Degree.”9
In Johnson’s case, the jury concluded that there was sufficient
evidence placing Johnson at the scene of, and directly involved in, an armed
robbery. The Court thus concludes that Johnson was not prejudiced by his trial
counsel’s failure to request a § 274 jury instruction.
NOW, THEREFORE, IT IS ORDERED, pursuant to Supreme Court Rule
25(a), that the State’s motion to affirm is GRANTED. The judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
/s/ Carolyn Berger
Allen v. State, 970 A.2d at 213.