Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Deborah J. Weaver, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Gregory F. Robinson, Pro se. FREUD, Commissioner March 30, 2012
William L. Witham, Jr. Resident Judge.
On this 20th day of November, 2012, upon consideration of the Defendant's Motion for Postconviction Relief, the Affidavits of prior counsel, the State's Response, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
The Defendant, Gregory F. Robinson ("Robinson"), was found guilty by a jury on October 22, 2008 of one count of Possession of a Deadly Weapon by a Person Prohibited. The State filed a motion to declare Robinson an habitual offender which the Court ordered following a hearing. Robinson was sentenced on December 10, 2008 to a total of 8 years at Level 5, followed by probation.
Robinson, through counsel, timely appealed his conviction to the Delaware Supreme Court which was affirmed on December 8, 2009. Thereafter, on October 6, 2010, Robinson filed a pro se motion for postconviction relief wherein he alleged ten grounds for relief.
The matter was referred to the Court Commissioner for findings of fact and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62. Commissioner Freud has filed a Report and Recommendation recommending that the Court deny defendant's motion for postconviction relief.
NOW, WHEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated March 30, 2012,
IT IS ORDERED that the thoughtful and precise Commissioner's Report and Recommendation is adopted by the Court and defendant's Motion for Postconviction Relief is denied as procedurally barred by Rule 61(i)(3) for failure to prove cause and prejudice and as previously adjudicated and barred by Rule 61(i)(4).
Dated: March 30, 2012
COMMISSIONER'S REPORT AND RECOMMENDATION
Andrea Maybee Freud Commissioner J.
The Defendant, Gregory F. Robinson ("Robinson"), was found guilty, following a jury trial on October 22, 2008, as charged, of one count of Possession of a Deadly Weapon by a Person Prohibited, 11 Del. C. § 1448. The State filed a motion to declare Robinson an habitual offender pursuant to 11 Del. C. § 4214(A). Following a hearing the Court declared Robinson an habitual offender. On December 10, 2008, Robinson was sentenced to a total of eight years incarceration, followed by probation.
Robinson, through counsel, appealed his conviction to the Delaware Supreme Court. The two issues raised on appeal were that: 1) ". . .the Superior Court erred by denying his right of self-representation under the Sixth Amendment, by excluding him from a sidebar conference, " and 2) ". . .that the Superior Court, should have, sua sponte, acquitted him of PDWPP, because the State failed to prove that the steak knife found on Robinson was a 'deadly weapon' as defined in title 11, section 222(5) of the Delaware Code." The Supreme Court, on December 8, 2009, affirmed Robinson's conviction and sentence.
Following are the facts as set forth by the Delaware Supreme Court:
On October 2, 2007, Dover Police Officer Christopher Bumgarner ("Bumgarner") and Probation Officer Kevin McClure ("McClure") conducted a home visit of a probationer at South Queen Street in Dover. During the visit, Bumgarner observed what he believed to be a drug transaction taking place between Robinson and two other men, in a parking lot across the street. Bumgarner and McClure left the home they were visiting and crossed the street.
When Robinson noticed the officers approaching, he began walking away from the parking lot. Bumgarner ordered Robinson to stop and raise his hands in the air. Robinson stopped, and as he raised his hands, Bumgarner saw him toss a plastic bag with a small white object to the ground. McClure then proceeded to handcuff Robinson and asked Robinson whether he had on him anything that was going to poke, stick, or harm McClure during a pat down search. Robinson answered that he had a knife on him. ...