Submitted: November 12, 2013
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S.
Kathryn S. Keller, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Albert J. Roop, V, Esquire and Patrick Collins, Esquire, Attorney for Defendant Dontay J. Harris.
Lynne M. Parker, Commissioner.
This 12th day of December, 2013, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On August 15, 2011, Defendant Christopher H. West was indicted on four charges. Defendant West was charged with Robbery First Degree arising out of a bank robbery committed at the Citizen's Bank located inside the Acme grocery store located at 1308 Centerville Road, Wilmington, Delaware, on or about June 28, 2011. Defendant was charged with Robbery First Degree arising out of a bank robbery committed at the Wells Fargo Bank located at 2011 Concord Pike, Wilmington, Delaware, on or about July 1. 2011. Defendant was charged with Robbery Second Degree arising out of a bank robbery committed at a PNC Bank branch located at 2203 Kirkwood Highway, on or about June 30, 2011. Finally, Defendant was charged with Attempted Robbery First Degree arising out of an attempted bank robbery at the TD Bank located at 4010 Concord Pike, Wilmington, Delaware, which occurred on or about July 1, 2011.
2. On January 9, 2012, Defendant West pled guilty to two of the charges: Robbery First Degree and Robbery Second Degree. As part of the plea agreement, the other two charges of Robbery First Degree and Attempted Robbery First Degree were dismissed by the State.
3. As part of the plea agreement, the parties agreed that the State would seek to declare Defendant a habitual offender under 11 Del. C. § 4214(a) on the Robbery First Degree charge. The parties agreed that the State would recommend the minimum/mandatory sentence of 25 years on that charge. The parties agreed that Defendant would not contest his eligibility to be sentenced as a habitual offender. Defendant agreed that his convictions for Burglary Second in 2003, Forgery Second in 2004 and Forgery in Pennsylvania in 2009, made him eligible to be sentenced as a habitual offender. The parties agreed that on the Robbery Second Degree charge the State would recommend a sentence of 5 years at Level V, suspended for 18 months at Level III probation.
4. On March 30, 2012, Defendant was sentenced on the Robbery First Degree charge as a habitual offender pursuant to 11 Del. C. § 4214(a), and was sentenced to the minimum mandatory 25 years at Level V. On the Robbery Second Degree charge, Defendant was sentenced to 3 years at Level V, suspended for 3 years at Level IV, suspended after 6 months at Level IV for 2 years at Level III.
5. Defendant did not file a direct appeal to the Delaware Supreme Court.
6. The charges at issue stem from three separate bank robberies and one bank robbery attempt, all of which were committed within the span of less than a week. Based on video surveillance and the description of the suspect from the witnesses to the bank robberies, a photo array was generated. Delaware State Police showed the array to three people, all of whom identified Defendant West as the perpetrator of the robbery.
7. There was a witness from the Citizens Bank robbery who observed the suspect using a dark colored Jeep Wrangler that identified Defendant West as the suspect. In addition to being identified by the witness as the bank robber, the vehicle identified as being driven by the bank robber, a dark colored Jeep Wrangler, matched the description of the vehicle Defendant West drove. In fact, Defendant West admitted to having committed the Citizen's Bank bank robbery and having driven a Jeep Wrangler to Citizen's Bank when he committed the bank robbery.
8. Defendant West was also identified as the bank robber by the assistant manager at the Citizens Bank who was working at the time of the robbery. The teller from the PNC bank robbery also identified Defendant West as the person who committed the PNC robbery.
9. Defendant's uncle also confirmed that the photo released from the Citizen's Bank robbery depicting the suspect was his nephew, Defendant West.
10. Defendant West, when interviewed by the police, confessed to committing the three bank robberies and the attempted bank robbery.
RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
11. On February 27, 2013, Defendant filed a pro se motion for postconviction relief. In Defendant West's pro se motion, he claimed that his plea was not knowing, intelligent and voluntary for a variety of reasons. Defendant also claimed that his conviction in 2009 in Pennsylvania for Forgery was "illegal" and should not have been used as a predicate conviction to support his habitual offender status.
12. Defendant was thereafter assigned counsel. On November 12, 2013, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(2), ...