Submitted: January 28, 2015
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Kathryn S. Keller, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Harold C. Bissoon, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
Andrew J. Witherell, Esquire.
LYNNE M. PARKER, COMMISSIONER.
This 23rd day of March 2015, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On October 28, 2013, Defendant Harold C. Bissoon, Jr. pled guilty to two counts of Robbery First Degree and one count of Conspiracy Second Degree. As part of the plea agreement, the State agreed to dismiss all of the remaining charges which included two additional counts of Robbery First Degree and one count of Wearing a Disguise During the Commission of a Felony.
2. Also as part of the plea agreement, the State agreed to cap its recommendation for Level V time to 18 years. The State further agreed that it would not seek to have Defendant sentenced as a habitual offender, pursuant to 11 Del. C. 4214(a) or (b).
3. Defendant had a criminal history which included, but was not limited to, four prior violent felonies. Defendant was convicted of: 1) Robbery Second Degree in 1992 in New York; 2) Distribution within 300 feet of a Park in 2002 in Delaware; 3) Assault First Degree in 2002 in Delaware; and 4) Possession of a Firearm During the Commission of a Felony in 2002 in Delaware. Had Defendant proceeded to trial and been convicted of even a single count of Robbery First Degree, he would have faced 25 years to life under 11 Del. C. § 4214(a), or an automatic life sentence under 11 Del. C. § 4214(b).
4. Following a pre-sentence investigation, on January 31, 2014, Defendant was sentenced as follows: Robbery First Degree- 15 years at Level V suspended after 10 years for decreasing levels of supervision; Robbery First Degree- 15 years at Level V suspended after 5 years for Level III probation; Conspiracy Second Degree- 2 years Level V suspended for 1 year Level II probation. Consequently, Defendant was sentenced to a total of 32 years incarceration at Level V, suspended after 15 years at Level V, followed by decreasing levels of probation.
5. Defendant did not file a direct appeal to the Delaware Supreme Court.
6. Thereafter, Defendant filed a motion for modification of sentence. By Order dated April 4, 2014, the Superior Court denied the motion on the basis that the sentence was appropriate for all the reasons stated at the time of sentencing. Defendant appealed the denial of his motion for modification of sentence to the Delaware Supreme Court. By Order dated August 19, 2014, the Delaware Supreme Court affirmed the judgment of the Superior Court.
7. On December 16, 2012, Trooper Jubb of the Delaware State Police was at the scene of a vehicle crash on Pulaski Highway when a Good Samaritan approached him and told him that the Wendy's on Pulaski Highway, Newark, Delaware was being robbed. Trooper Jubb left the crash scene and quickly headed to the Wendy's. Upon arrival, Trooper Jubb looked into the drive-thru window and observed a masked suspect inside the business. Trooper Jubb retrieved his Delaware State Police issued shotgun and set up a position where he could observe the exits.
8. Not long after Trooper Jubb set up his position, Defendant exited the Wendy's and ran toward the woods. Trooper Jubb was able to see Defendant's face before Defendant fled eastbound towards Pulaski Highway.
9. Trooper Jubb then observed a white male, later determined to be co-defendant Richard Novello, exit the building. Novello was wearing a green sweatshirt and a black eyepatch. He was holding a black trashcan as he exited Wendy's. As Novello attempted to flee with the trashcan, he was tased by Trooper Jubb and taken into custody. Inside the trashcan was the money taken during the robbery.
10. Responding troopers and New Castle County Police Officers set a perimeter and a search was conducted for Defendant. Defendant was apprehended shirtless just outside the wooded area on South College Avenue. Trooper Jubb, upon seeing Defendant, positively identified Defendant as the black male suspect who fled the Wendy's immediately after the robbery.
11. Detective Myers of the Delaware State Police searched the wooded area in the hopes of locating the firearm used by Defendant during the robbery. The gun was not located but a tan shirt was located and seized as evidence.
12. One of the witnesses described the gunman as wearing a tan shirt and being of the height and weight of Defendant. The tan shirt that was recovered in the wooded area had Defendant's DNA on it. 
13. During their investigation, Delaware State Police learned that Defendant had been employed at the Wendy's but was fired a few months prior for repeatedly failing to appear for work. Detective Daniel Grassi, the State's Chief Investigating Officer, interviewed the victims of the robbery. The victims described how Defendant made them lie on the floor of the Wendy's kitchen while he held them at gunpoint with a silver handgun.
14. At one point during the robbery, Defendant struck a female victim on the head with the silver handgun and called her a "fat bitch" for not complying with his commands to get on the floor. Defendant then took the manager to the ...