Submitted: August 12, 2013
Upon Defendant's Amended Motion for Postconviction Relief.
Kathleen A. Dickerson, Esquire of the Department of Justice, Dover, Delaware; attorney for the State.
Natalie S. Woloshin, Esquire of Woloshin Lynch Natalie & Gagne, Wilmington, Delaware; attorney for the Defendant.
Hon. William L. Witham, Jr. Resident Judge
The Court has before it the appeal of the Commissioner's Report and Recommendation and must decide whether this Court should adopt the Report and Recommendation upon the Defendant's Amended Motion for Postconviction Relief.
II. Factual and Procedural Background
In the early morning of July 17, 2008 several African American males entered the Jones family's residence in Harrington, Delaware and stole numerous items from the home, including several firearms. On August 4, 2008, while responding to a trespassing complaint at an apartment complex in Milford, Delaware State Police identified several of the items stolen in the Harrington home invasion, including one of the stolen firearms, as being in the possession of the Defendant, Julius Cannon (hereinafter "Cannon"). Police later recovered a firearm with a serial number matching one of the stolen weapons from the Harrington home invasion during an unrelated robbery investigation; the suspects in that investigation all testified that Cannon had sold them the weapon.
Multiple witnesses, including several accomplices, testified in Cannon's trial. On June 4, 2009 a jury found Cannon guilty of one count of Possession of a Firearm by a Person Prohibited and one count of Conspiracy in the Second Degree. Cannon was found not guilty on three counts of Robbery in the First Degree, three counts of Possession of a Firearm during the Commission of a Felony, one county of Burglary in the First Degree, one county of Wearing a Disguise During the Commission of a Felony, and four counts of Theft of a Firearm. One additional count of Rape in the Second Degree was nolle prosequi'd by the State prior to trial.
Cannon subsequently appealed his conviction to the Delaware Supreme Court. The attorney (hereinafter "Trial Counsel" or "Counsel") who represented Cannon during his trial filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c) on the basis that no meritorious issues existed. The Supreme Court granted Counsel's motion. Cannon subsequently raised five issues with the Supreme Court pro se: (1) there was insufficient evidence presented at trial to support his conviction of Conspiracy in the Second Degree; (2) the jury's questions to the trial judge during deliberations were not adequately answered; (3) there was insufficient evidence presented at trial to support his weapon conviction; (4) the charges should have been severed because they stemmed from separate incidents; and (5) the State's witnesses presented inconsistent testimony. On May 10, 2010 the Supreme Court issued a mandate granting the State's motion to affirm as to all five claims.
On May 2, 2011 Cannon filed his original Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Cannon filed his original motion pro se. In February of 2012, new counsel (hereinafter "Postconviction Counsel") entered her appearance on behalf of Cannon. On March 25, 2012 Postconviction Counsel filed an Amended Motion for Postconviction Relief on Cannon's behalf. The State filed a response to the Amended Motion, and Trial Counsel filed a verified letter affidavit in response to each of Cannon's claims.
The Commissioner issued a Report and Recommendation upon Cannon's Amended Motion for Postconviction Relief on May 31, 2013. The Commissioner construed Cannon's Amended Motion as raising eight separate grounds for relief:
Claim One: Trial Counsel was ineffective in failing to request a specific unanimity instruction relating to the Possession of a Firearm by a Person Prohibited charge and Conspiracy in the Second Degree charge.
Claim Two: The trial judge committed plain error in failing to give a specific unanimity instruction sua sponte.
Claim Three: Trial Counsel was ineffective when he failed to argue that evidence of the Possession of a Firearm by a Person Prohibited ...