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State v. Patten

Superior Court of Delaware, Kent

January 9, 2013

STATE OF DELAWARE
v.
APALONIO A. PATTEN Defendant.

Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 Nos. RK08-03-0885-01 Robbery 1st (F) RK08-03-0888-01 Theft (F) RK08-03-0890-01 Conspiracy 2nd (F).

Gregory R. Babowal, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

Apalonio A. Patten, Pro se.

ORDER

William L. Witham, Jr., Resident Judge.

On this 9th day of January, 2013, upon consideration of the Defendant's Motion for Postconviction Relief, the Affidavit of prior counsel and appellate counsel, the State's Response, the Commissioner's Report and Recommendation, and the record in this case, it appears that:

The Defendant, Apalonio A. Patten, was found guilty by a jury on February 12, 2009 of one count of Robbery in the First Degree, one count of Felony Theft, and one count of Conspiracy Second Degree. He was found not guilty of Wearing a Disguise During the Commission of a Felony Defendant was sentenced on April 15, 2009 to 29 years at Level 5, suspended after serving 5 years minimum mandatory time, followed by varying levels of probation.

Defendant, through counsel, timely appealed his conviction to the Delaware Supreme Court which was affirmed on February 3, 2010.

Thereafter, Defendant filed a pro se motion for postconviction relief. He alleged three grounds for relief, including ineffective assistance of counsel.

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. The Defendant did not file an appeal or written objection to the Commissioner's Report.

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 June 18, 2012,

IT IS ORDERED that the thoughtful and well-reasoned 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 completely meritless.

COMMISSIONER'S REPORT AND RECOMMENDATION

Andrea Maybee Freud, Commissioner.

The defendant, Apalonio A. Patten ("Patten"), was found guilty on February 12, 2009 by a jury of one count of Robbery in the First Degree, 11 Del. C. §832; one count of Felony Theft, 11 Del. C. § 841 and one count of Conspiracy Second Degree, 11 Del. C. ยง 512. He was found not guilty of Wearing a Disguise During the Commission of a Felony. One count of Possession of a Deadly Weapon During the Commission of a Felony and one count of Carrying a Concealed Deadly Weapon were dismissed. On April 15, 2009, Patten was sentenced to a ...


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