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State v. Johnson

Superior Court of Delaware, New Castle

November 20, 2014

STATE OF DELAWARE
v.
DAVON JOHNSON, Defendant.

Submitted: October 9, 2014

Upon Defendant's Second Motion for Postconviction Relief. SUMMARILY DISMISSED.

Sean P. Lugg, Esquire, and Danielle J. Brennan, Esquire, Deputies Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorneys for the State.

Davon Johnson, Smyrna, Delaware, pro se.

ORDER

Ferris W. Wharton, J.

This 20th day of November, 2014, upon consideration of Defendant's second Motion for Postconviction Relief and the record in this matter, it appears to the Court that:

1. Defendant Davon Johnson pled guilty on May 23, 2008 to one count each of Manslaughter, Attempted Robbery First Degree and Conspiracy Second Degree.
2. On December 19, 2008, Defendant was sentenced on the charge of Manslaughter to 25 years at Level 5, suspended after 20 years, followed by decreasing levels of probation; on the charge of Attempted Robbery First Degree to 15 years at Level 5, suspended after five years for probation; and on the charge of Conspiracy Second Degree to three years at level 5, suspended for probation.
3. Defendant filed a Motion for Reduction of Sentence, arguing that his sentence should be reduced because his two co-defendants, who participated in the same criminal conduct, received significantly shorter sentences.[1] The trial court denied that motion.[2]
4. On appeal, Defendant unsuccessfully argued that the trial court abused its discretion by basing its sentence, in part, on a presentence report containing unreliable information and that his sentence was too severe compared to his co-defendants' sentences.[3]
5. On April 25, 2011, Defendant filed his first motion for post-conviction relief, alleging ineffective assistance of counsel. Defendant contended that counsel induced him to plead guilty by misrepresenting to him that his sentence would be only 10 years. Defendant also contended that the sentencing judge sentenced him with a "closed mind."[4] That motion was denied.[5] The Supreme Court affirmed.[6]
6. Defendant filed this motion, his second motion for postconviction relief, on October 9, 2014, asserting the following grounds for relief: 1) the trial judge was acquainted with the family of the deceased; 2) the trial judge never disclosed that he was acquainted with the family of the deceased; and 3) trial counsel was ineffective in failing to investigate that relationship after having been made aware it.[7]
7. Defendant's Motion for Postconviction Relief is governed by the recently amended Superior Court Rule 61, which took effect on June 4, 2014.
8. Rule 61(d)(2) provides for preliminary consideration of second or subsequent postconviction motions. A second or subsequent motion will be summarily dismissed, unless the movant was ...

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