Submitted: November 17, 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.
Brenna A. Dolphin, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Brian J. Chapman, Esquire, 1232 N. King Street, Suite 300, Wilmington, Delaware, 19801, Attorney for Defendant Omar J. Brown.
Commissioner Lynne M. Parker
This 15th day of January, 2014, upon consideration of Defendant's Motion for Postconviction Relief and Defendant's Rule 61 Counsel's Motion to Withdraw, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On April 19, 2011, the Wilmington Police Department arrested Defendant Omar L. Brown. Defendant Brown was indicted on a number of charges including: Trafficking in Heroin between 10 and 50 grams, Trafficking in Cocaine greater than 100 grams, Possession with Intent to Deliver Cocaine, Possession with Intent to Deliver Heroin, Maintaining a Dwelling for Keeping Controlled Substances, Maintaining a Vehicle for Keeping Controlled Substances, Forgery Second Degree, Possession of Drug Paraphernalia and Conspiracy Second Degree, along with other misdemeanor charges and traffic violations.
2. On November 23, 2011, Defendant Brown pled guilty to Possession with Intent to Deliver Heroin, Possession with Intent to Deliver Cocaine, Conspiracy Second Degree, Possession of Drug Paraphernalia and Forgery Second Degree. In exchange for the guilty plea, the State dismissed the remaining charges including the trafficking in heroin and trafficking in cocaine charges. The State agreed to recommend that Defendant be sentenced to a total non-suspended period of 8 years of Level V incarceration, which was the minimum mandatory term of incarceration, followed by eighteen months of Level III probation.
3. On November 23, 2011, following the entry of Defendant Brown's guilty plea, Defendant was immediately sentenced to a total non-suspended period of 8 years of Level V incarceration, followed by eighteen months of Level III probation.
4. On June 3, 2011, Defendant Brown had been sentenced in a different case in which Defendant pled guilty to, inter alia, possession of cocaine with intent to deliver, stemming from Defendant's actions which occurred on or about September 16, 2010. In that case, given Defendant Brown's criminal record, Defendant was sentenced as a habitual offender to a total non-suspended period of three years at Level V.
5. In the subject action, Defendant Brown did not disclose that he had previously been declared a habitual offender. In fact, on the Immediate Sentencing Form dated November 23, 2011, Defendant Brown appears to have misled the court by claiming that he had never previously been declared a habitual offender.
6. In the subject action, Defendant did not file a direct appeal to the Delaware Supreme Court.
RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
7. On November 16, 2012, Defendant filed a pro se motion for postconviction relief raising three ineffective assistance of counsel claims. Before making a recommendation, the record was enlarged and Defendant's trial counsel was directed to submit an Affidavit responding to Defendant's ineffective assistance of counsel claims. Thereafter, the State filed a response to the motion.
8. After the submissions had been received by Defendant's trial counsel and the State, Defendant filed a motion seeking the assistance of counsel on his Rule 61 motion. The court granted Defendant's motion for the appointment of counsel and on June 27, 2013, ...