Submitted: November 26, 2013
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.
Phyllis R. Scully, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John A. Barber, Esquire, Attorney for Defendant Lammot Scruggs.
Lynne M. Parker Commissioner
This 9th day of January, 2014, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. Defendant Lammot Scruggs was found guilty by a Superior Court jury of Terroristic Threatening and Contempt of a Protection From Abuse Order arising out of Defendant's actions that occurred on or about July 1, 2011. The jury was deadlocked on the additional charges of Burglary in the Second Degree, Offensive Touching and Endangering the Welfare of a Child.
2. Before a re-trial on those additional charges, on March 6, 2012, Defendant Scruggs pled guilty to Burglary in the Second Degree. In exchange for the guilty plea, the State dismissed the remaining charges and did not seek to have Defendant Scruggs sentenced as a habitual offender.
3. On March 30, 2012, Defendant Scruggs was sentenced to a total of 7 years of Level V incarceration, to be suspended after 4 years, for 6 months at Level III probation.
4. Defendant filed a direct appeal to the Delaware Supreme Court. On direct appeal, Defendant's counsel filed a brief and a motion to withdraw pursuant to Superior Court Criminal Rule 26(c). On October 15, 2012, the Delaware Supreme Court affirmed the judgment of the Superior Court.
RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
5. On April 2, 2013, Defendant filed a pro se motion for postconviction relief. In Defendant Scrugg's pro se motion, he raised three claims. He claimed: 1) that his counsel was ineffective for failing to investigate whether the petition for the Protection from Abuse Order ("PFA") introduced at trial was filed correctly; 2) that the State's amendment of the indictment on the day of trial was in error as it did not give the defense adequate notice to prepare a defense; and 3) that the PFA was not filed correctly in that he did not have notice of the petition for the PFA and therefore did not have an opportunity to defend against it.
6. Defendant was thereafter assigned counsel. On October 1, 2013, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant ...