Submitted: November 21, 2016
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
K. McCloskey, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Jonathan D. Lolley, Howard R. Young Correctional Center,
Wilmington, Delaware, pro se.
6th day of January 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
April 24, 2014, Defendant Jonathan D. Lolley was indicted on
the charges of drug dealing heroin, possession of a
non-controlled prescription drug without a prescription and
second degree conspiracy to commit drug dealing. These
charges arose out of an incident that occurred on March 11,
two jury trials, a Superior Court jury convicted Lolley of
all three of the indicted charges. Following the first trial,
on November 20, 2014, a Superior Court jury found Lolley
guilty of second degree conspiracy and illegal possession of
the prescription drugs. The jury could not reach a verdict on
the drug dealing charge.
Lolley's second trial took place in May 2015 and was
limited to the drug dealing charge. On May 20, 2015, the
Superior Court jury found Lolley guilty of drug dealing.
Following the granting of the State's motion to declare
Lolley a habitual offender, pursuant to 11 Del. C.
§ 4214(a), Lolley was sentenced on June 5, 2015. Lolley
was sentenced to four years at Level V as a habitual offender
on the drug dealing conviction and one year at Level V as a
habitual offender on the second degree conspiracy conviction.
The court also imposed a 30 day Level V sentence for illegal
possession of the prescription drugs, suspended for 12 months
of Level III probation.
Lolley filed a direct appeal to the Delaware Supreme Court.
On February 4, 2016, the Delaware Supreme Court affirmed the
conviction and sentence of the Superior Court.
March 11, 2014, Lolley and Lenore Frankel were staying at the
Super Lodge Motel north of New Castle, Delaware. The police
were looking for Frankel as part of an investigation
unrelated to this case and learned that she was at the motel.
After the police knocked on Frankel's motel room door,
and several minutes passed during which they heard shuffling
inside the room, Frankel and Lolley opened the door and
allowed the police to enter.
inside the officers smelled burnt marijuana and saw a
marijuana "blunt" on the nightstand by the bed. The
police arrested Lolley and Frankel after finding 28 small
bags of heroin, several empty heroin bags, $281 in cash and
prescription drugs. Of the 28 bags of heroin, 26 were grouped
into two "bundles" of 13 bags each, and 2 of the
bags were loose.
Lolley, who was detained in a police car, asked if he could
retrieve his belongings from the room- a black duffle bag,
his wallet with approximately $281 in cash, and a blue or
black Huaweia cell phone. It was in Lolley's duffle bag that
the police found the Prednisone pills in a prescription drug
container without any label. Lolley admitted that the $281
cash was his and was in his wallet. Two more cell phones were
also found in the room. Additionally, in a post-Miranda
statement, Lolley again admitted that the cell phone found on
the bed belonged to him, as did the duffle bag, and the
wallet with the cash.
next day, the police used a software program to download the
contents of Lolley's cell phone. The phone contained text
messages consistent with drug sales. A valid search of
Lolley's phone recovered an incoming message addressing
Lolley by his nickname "Pug." The State
admitted into evidence a photo of a tattoo of the word
"Pug" on Lolley's forearm.
Another one of the cell phones seized also contained text
messages consistent with drug sales.
RULE 61 MOTION
May 3, 2016, Lolley filed the subject motion for
postconviction relief. In the subject motion, Lolley raised
three ineffective assistance of counsel claims. Lolley
claimed that: 1) defense counsel was ineffective for not
challenging the authenticity of the text messages; 2) defense
counsel was ineffective for not objecting to the testimony
about the money without the money being admitted into
evidence; and 3) defense counsel was ineffective for not
challenging the State's accomplice liability theory.
Before making a recommendation, the Commissioner enlarged the
record by directing Defendant's trial counsel to submit
an Affidavit responding to Lolley's ineffective
assistance of counsel claims. Thereafter, the State filed a
response to the motion and Lolley was permitted the
opportunity to submit a reply thereto.
order to prevail on an ineffective assistance of counsel
claim, Defendant must meet the two-pronged
Strickland test by showing that: (1) counsel
performed at a level "below an objective standard of
reasonableness" and that, (2) the deficient performance
prejudiced the defense. The first prong requires the
defendant to show by a preponderance of the evidence that
defense counsel was not reasonably competent, while the
second prong requires him to show that there is a reasonable
probability that, but for defense counsel's
unprofessional errors, the outcome of the proceedings would
have been different.
Mere allegations of ineffectiveness will not suffice;
instead, a defendant must make and substantiate concrete
allegations of actual prejudice. Although not
insurmountable, the Strickland standard is highly
demanding and leads to a strong presumption that
counsel's conduct fell within a wide range of reasonable
professional assistance. Moreover, there is a strong
presumption that defense counsel's conduct constituted
sound trial strategy.
Harrington v. Richter,  the United States Supreme
Court explained the high bar that must be surmounted in
establishing an ineffective assistance of counsel claim. In
Harrington, the United States Supreme Court
explained that representation is constitutionally ineffective
only if it so undermined the proper functioning of the
adversarial process that the defendant was denied a fair
trial. The challenger's burden on an
ineffective assistance of counsel claim is to show that
counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed the
defendant by the Sixth Amendment. It is not enough to show
that the errors had some conceivable effect on the outcome of
the proceeding. Counsel's errors must be so serious as to
deprive the defendant of a fair trial.
United States Supreme Court explained that a defendant is not
guaranteed perfect representation, only a reasonably
competent attorney. There is no expectation that competent
counsel will be a flawless strategist or tactician. A defense
attorney may not be faulted for a reasonable miscalculation