Submitted: October 14, 2014
Daniel McBride, Esquire, Deputy Attorney General, Attorney for the State.
Kevin P. Tray, Esquire, Attorney for Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED. AND RULE 61 COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED
BRADLEY V. MANNING, COMMISSIONER
This 24th day of November, 2014, upon consideration of Defendant's Motion for Postconviction Relief, the Court finds the following:
According to the Affidavit of Probable Cause, sworn to by the arresting officer, on February 8, 2012, at 12:03 a.m., Delaware State Police responded to the parking lot of a Taco Bell/KFC restaurant located on West Newport Pike, Delaware. Once there, the officer observed Defendant slumped over the steering wheel sleeping (or possibly passed out) of a maroon in color vehicle. The officer observed the white reverse lights to be illuminated as the car was in the reverse gear. The officer also noticed Defendant's foot resting on the brake pedal. The officer reached into the car, placed it into park and attempted to wake Defendant. The officer was able to wake Defendant after a "few shakes" and he appeared disoriented. Based on these facts, and the officer's knowledge and experience, the officer believed that Defendant may have been under the influence of drugs. The officer attempted to place Defendant into handcuffs pending the arrival of assisting officers so an investigation could be conducted. However, while being handcuffed, Defendant resisted by pulled away from the officer and taking four to five steps, before the officer was able to gain control of him and finish placing him into handcuffs. A search of Defendant's person revealed what appeared to be crack cocaine. A search of Defendant's car revealed hypodermic needles and an unspent Remington buckshot shotgun shell. Defendant was placed under arrest and transported back to Delaware State Police Troop 6. A further search of Defendant located 16 Alprazolam/Xanax pills in his pants pockets. In the rear of Defendant's car police located a Black Marksman 1010 Air Pistol. Defendant was initially charged by police with Resisting Arrest, Driving Under the Influence, Driving with a Suspended/Revoked License, Possession of Drug Paraphernalia and Possession of a Controlled Substance.
Additional charges of Possession of Ammunition and Possession of a Firearm by a Person Prohibited were added by indictment on May 7, 2012.
At his final case review on October 1, 2012, Defendant Johnny Dorazio pled guilty to Possession of a Firearm by a Person Prohibited in violation of 11 Del. C. § 1447A. Defendant was represented by a lawyer ("Trial Counsel") and was sentenced the same day to the minimum mandatory sentence of three years at Level Five followed by various levels of probation. Later that same month, Defendant filed a pro se Motion for Postconviction Relief (the "Motion") under Superior Court Rule 61. The Court appointed Defendant counsel ("Rule 61 Counsel") for his Motion on July 16, 2013. On March 27, 2014, Rule 61 Counsel filed a Non-Merit Brief and Motion to Withdraw as Counsel under Rule 61(e)(2). Trial Counsel filed an Affidavit in response to Defendant's Motion on June 30, 2014. On August 22, 2014, Defendant filed a pro se Amended Motion for Postconviction Relief raising an additional argument regarding the continuing scandal at the Office of the Chief Medical Examiner. The State filed a Response as to all issues raised by Defendant, in both motions, on September 22, 2014. Defendant filed a Reply on October 14, 2014.
DEFENDANT'S RULE 61 MOTION
Defendant's Motion raises the following grounds for relief: (1) Actual Innocence, (2) Prosecutorial Misconduct, (3) Malicious Prosecution, (4) Ineffective Assistance of Counsel #1, (5) Ineffective Assistance of Counsel #2, (6) Scandal at the State Crime Lab Office, and (7) No Suppression Motion.
All of Defendant's arguments are either procedurally barred or without merit.Each ...