Submitted: August 7, 2013
R. David Favata, Esq., Department of Justice, for the State of Delaware.
Suzanne MacPherson-Johnson, Esq.
Nathaniel L. Johnson, Pro se.
Robert B. Young, J.
Upon consideration of the Defendant's Motion For Postconviction Relief, the Commissioner's Report and Recommendation and the record in this case, it appears that:
1.The Defendant, Nathaniel L. Johnson ("Johnson"), pled guilty on March 23, 2011 to one count of Burglary in the Second Degree, 11 Del. C. § 825 and one count of Strangulation, 11 Del. C. § 607. Johnson faced the possibility of life incarceration as a habitual offender had he gone to trial and been found guilty of any one felony and a minimum mandatory sentence of twenty-three years incarceration. In exchange for Johnson's pleas the State entered a nolle prosequis on the remaining charges of two counts of Terroristic Threatening, four counts of Endangering the Welfare of a Child, one count of Attempted Burglary in the Second Degree, three counts of Reckless Endangering in the Second Degree, and one count of Criminal Mischief. The State agreed to recommend Johnson receive thirteen years incarceration suspended after serving ten years. The Court agreed to the State's recommendation followed by probation.
2. The Defendant did not appeal his conviction or sentence to the Delaware Supreme Court; instead he filed, pro se, the pending Motion For Postconviction Relief pursuant to Superior Court Criminal Rule 61. In his motion the defendant raises the following grounds for relief:: 1) Ineffective assistance of Counsel; and 2) Prosecutorial misconduct.
3. The Court referred this motion to Superior Court Commissioner Andrea M. Freud pursuant to 10 Del. C. §512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law.
4. The Commissioner has filed a Report and Recommendation concluding that the Motion For Postconviction Relief should be denied, because it is procedurally barred and meritless.
5. Defendant filed his Appeal from the Commissioners findings and a Motion for Appointment of Counsel on June 27, 2013.
6. The State responded.
NOW, THEREFORE, after de novo review of the record in this action, and for reasons stated in the Commissioner's Report and ...