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
Andrew J. Vella, Esquire, Deputy Attorney General, Attorney for the State.
Donald R. Roberts, Esquire, Attorney for Defendant.
BRADLEY V. MANNING, Commissioner
This 8th day of December, 2014, upon consideration of Defendant's Motion for Postconviction Relief, the Court finds the following:
According to the Affidavit of Probable Cause, on July 11, 2011, at sometime shortly prior to 6:00 a.m., Michael A. Brown ("Defendant") violently kicked in the front door of 311 W 2nd Street and proceeded to an upstairs apartment. Once there, Defendant confronted the various occupants, who were sleeping, demanded money and "the rest of my stuff." Defendant assaulted the occupants with a hammer numerous times, including repeated blows to the head, before fleeing. When police arrived they noted that there was "blood throughout the entire apartment." Defendant was developed by police as a suspected after being positively identified by one of the victims who had known him for over 6 years. Defendant was arrested later that same day.
Defendant was indicted on September 26, 2011, for three counts of Attempted Murder First Degree, Attempted Robbery First Degree, four counts of Possession of a Deadly Weapon During the Commission of a Felony and Burglary Second Degree. Defendant was represented by a lawyer ("Trial Counsel") and on May 15, 2012, the day his case was scheduled for trial, Defendant entered a guilty plea to two counts of Assault First Degree (lesser included offenses) and one count of Possession of a Deadly Weapon During the Commission of a Felony. A Pre-Sentence Investigation was ordered. Prior to sentencing, Trial Counsel filed a motion to withdrawn the guilty plea and to simultaneously withdraw from representing Defendant. On July 24, 2012, the Court held a hearing regarding the motions. At that hearing, Defendant's complaints centered on his dissatisfaction with Trial Counsel and also that the SENTAC guidelines noted on the Truth In Sentencing Guilty Plea Form ("TIS") he completed when he entered the guilty plea, were incorrect. After the hearing, the Court granted Trial Counsel's motion to withdraw and stayed Defendant's motion to withdraw his guilty plea. The Court informed Defendant that he could retain new counsel to represent him and then possibly re-file an amended motion, but otherwise, his motion was denied and he would be sentenced pro se, on September 28, 2012.
Defendant filed a pro se Motion for Postconviction Relief ("Motion") on October 9, 2013, pursuant to Superior Court Rule 61. The Court subsequently appointed Defendant counsel ("Rule 61 Counsel") for his pro se Rule 61 Motion. On May 9, 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 18, 2014. The State filed a Response on August 2, 2014. As of this date, Defendant has not filed a Reply.
DEFENDANT'S RULE 61 MOTION
Defendant's Motion raises three grounds for relief:
(1)Denial of Withdrawl [sic] of a defective plea agreement, and or a sentence imposed in an illegal manner. The sole reason that the courts own discretion, power ...