Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Lolley

Superior Court of Delaware

January 6, 2017

STATE OF DELAWARE, Plaintiff,
v.
JONATHAN D. LOLLEY, Defendant.

          Submitted: November 21, 2016

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.

          James 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.

          PARKER, COMMISSIONER

         This 6th day of January 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On 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, 2014.

         2. In 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.

         3. 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.

         4. 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.

         5. 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.[1]

         FACTS

         6. On 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.[2]

         7. Once 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.[3] Of the 28 bags of heroin, 26 were grouped into two "bundles" of 13 bags each, and 2 of the bags were loose.[4]

         8. 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.[5] It was in Lolley's duffle bag that the police found the Prednisone pills in a prescription drug container without any label.[6] Lolley admitted that the $281 cash was his and was in his wallet.[7] Two more cell phones were also found in the room.[8] 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.[9]

         9. The next day, the police used a software program to download the contents of Lolley's cell phone.[10] The phone contained text messages consistent with drug sales.[11] A valid search of Lolley's phone recovered an incoming message addressing Lolley by his nickname "Pug."[12] The State admitted into evidence a photo of a tattoo of the word "Pug" on Lolley's forearm.[13]

         10. Another one of the cell phones seized also contained text messages consistent with drug sales.[14]

         DEFENDANT'S RULE 61 MOTION

         11. On 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.

         12. 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.

         13. In 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.[15] 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.[16]

         14. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[17] 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.[18] Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[19]

         15. In Harrington v. Richter, [20] 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.[21] 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.[22]

         16. The 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 or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.