Submitted: March 30, 2015
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED.
Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Theopalis K. Gregory, Sr., Esquire, 2227 N. Market Street, Wilmington, Delaware, 19802, Attorney for Defendant Stern Green.
Lynne M. Parker, Commissioner
This 8th day of April, 2015, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND AND PROCEDURAL HISTORY
1. On June 10, 2013, Defendant Stern E. Green was indicted on charges of Drug Dealing Marijuana (Tier 2), Aggravated Possession of Marijuana (Tier 2), and Possession of Drug Paraphernalia. If convicted, Defendant was eligible to be sentenced as a habitual offender under both 11 Del. C. § 4214(a) and (b). If sentenced under 11 Del. C. § 4214(b), Defendant would be facing an automatic life sentence.
2. On September 30, 2013, Defendant Green pled guilty to Drug Dealing Marijuana (Tier 2) and Aggravated Possession of Marijuana (Tier 2). As part of the plea agreement, the remaining charge was dismissed.
3. Also as part of the plea agreement, the parties agreed that even though Defendant was habitual offender eligible under both 11 Del. C. § 4214(a) and (b), the State would seek to have Defendant sentenced as a habitual offender, pursuant to 11 Del. C. § 4214(a), on the drug dealing charge. The State agreed not to seek to have Defendant sentenced as a habitual offender pursuant to 11 Del. C. § 4214(b). The parties further agreed that at sentencing the State would recommend not more than 10 years of unsuspended Level V time, and Defendant would not seek less than 5 years of unsuspended Level V time.
4. On December 6, 2013, following a pre-sentence investigation, Defendant was sentenced. Defendant was declared a habitual offender, pursuant to 11 Del. C. § 4214(a), and sentenced to 5 years at Level V on the drug dealing charge. On the aggravated possession charge, Defendant was sentenced to 5 years at Level V, suspended for 3 years at Level IV, suspended after 6 months at Level IV, for 18 months at Level III probation. Consequently, Defendant was sentenced to a total of 5 years of unsuspended Level V time, 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 9, 2014, the Superior Court denied the motion on the basis, inter alia, that the sentence was imposed pursuant to the Plea Agreement agreed to by Defendant and because the sentence was appropriate for all the reasons stated at the time of sentencing.
7. During the month of February 2013 an investigation was being conducted into the sale of illegal drugs from 5 Briarcliff Drive, New Castle, Delaware 19720. On March 14, 2013, the New Castle County Drug Control Squad and Mobile Enforcement Team executed a search warrant at that residence.
8. A search of the residence was conducted and 1746 grams of marijuana packaged in 6 bags was found in a safe in Defendant Stern Green's bedroom. Another three bags of marijuana, weighing approximately 10 grams, was located in a shoebox in Defendant's bedroom. In a guest bedroom, an additional six grams of marijuana was found. The total amount of marijuana seized was 1762 grams.
9. Defendant Green had $814 in United States Currency. He claimed to be unemployed for the last two years.
10. Defendant Green was arrested and taken into custody. Defendant agreed to be interviewed and in a recorded statement admitted to the police that all of the marijuana seized belonged to him. He told the police that he smoked the marijuana and also sold it as well.
RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
11. On April 25, 2014, Defendant filed a pro se motion for postconviction relief. In Defendant Green's pro se motion, he raised four claims. He claimed that: 1) the search performed by the New Castle County Police Department constituted an illegal search and seizure; 2) that his counsel was ineffective in representing him throughout the court proceedings and did not file necessary motions; 3) that the evidence seized and statements made while in custody were illegally obtained and should have been suppressed; and 4) that he was forced into accepting the plea agreement due to his counsel's ineffectiveness.
12. Defendant was thereafter assigned counsel. On February 24, 2015, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant to (pre-June 2014) Superior Court Criminal Rule 61(e)(2), ...