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State v. Grinnell-Cropper

Superior Court of Delaware

January 25, 2017

STATE OF DELAWARE, Plaintiff,
v.
A'KEEM GRINNELL-CROPPER, Defendant.

          Submitted: November 21, 2016

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

          Brian J. Robertson, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Patrick J. Collins, Esquire and Matthew C. Buckworth, Esquire, Attorneys for Defendant.

          PARKER, Commissioner

         This 25th day of January, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On January 21, 2014, Defendant A-Keem Grinnell-Cropper was indicted on charges of Possession of a Firearm By a Person Prohibited ("PFBPP"), Possession of Ammunition By a Person Prohibited ("PABPP") and Carrying a Concealed Deadly Weapon ("CCDW"). The charges stemmed from a vehicle stop on November 30, 2013, during which Defendant, a passenger in the vehicle, was found to be in possession of a loaded firearm.

         2. A motion to suppress was filed by defense counsel on Defendant's behalf[1], and following a hearing on the motion on May 16, 2014, the motion was denied.[2]

         3. After the denial of the suppression motion, on May 28, 2014, the case proceeded to a non-jury trial. The Superior Court found Defendant guilty of PFBPP and PABPP.

         4. The Superior Court granted Defendant's Motion for Judgment of Acquittal following the close of the State's case at trial on the CCDW charge. The indictment on the CCDW charge incorrectly stated that the offense occurred on February 11, 2008, rather than November 30, 2013.[3]

         5. On October 3, 2014, following a pre-sentence investigation, Defendant was sentenced. On the PFBPP, Defendant was sentenced to 15 years at Level V, suspended after 5 years, for decreasing levels of probation. On the PABPP, Defendant was sentenced to 8 years at Level V, suspended after 6 months, followed by probation.

          6. Defendant filed a direct appeal to the Delaware Supreme Court. In Defendant's direct appeal, he appealed the denial of his suppression motion. On September 16, 2015, the Delaware Supreme Court determined that the appeal was without merit and affirmed the judgment of the Superior Court.[4]

         7. Specifically, on direct appeal, the Delaware Supreme Court held that: "Based upon the combination of [the arresting officer's] specialized objective training and subjective familiarity with [Defendant's] normal behavior, [the officer] had a reasonable articulable belief that [Defendant] was armed and presently dangerous. Accordingly, we hold that under the totality of the circumstances, the pat-down search of [Defendant] by [the officer] was permitted by the Fourth Amendment."[5]

         8. Thereafter, on November 23, 2015, Defendant filed a motion for modification/reduction of sentence.[6] In that motion, Defendant claimed, inter alia, that his counsel was ineffective, that his suppression motion should have been granted, and that family issues should warrant a sentence reduction. By Order dated March 7, 2016, the Superior Court denied Defendant's motion finding it to be without merit. The Superior Court held that the sentence was appropriate for all the reasons stated at the time of sentencing.[7]

         9. On October 26, 2016, Defendant filed another motion for reduction or modification of sentence.[8] In that motion, Defendant re-raised various claims that he raised in his first motion for sentence reduction. By Order dated December 19, 2016, the Superior Court denied Defendant's motion. The Superior Court again held that the sentence was appropriate for all the reasons stated at the time of sentencing.[9]

         FACTS

         10. On November 13, 2013, a traffic stop was conducted in the West Center City area of Wilmington, Delaware. Defendant was seated in the front passenger seat. During that traffic stop, Defendant, a person prohibited, was found with a loaded handgun tucked in the waistband of his pants.[10]

         RULE 61 MOTION AND COUNSEL'S MOTION TO WITHDRAW

         11. On October 5, 2015, Defendant filed a pro se motion for postconviction relief. Defendant was thereafter assigned counsel.

         12. On June 28, 2016, assigned counsel filed a Motion to Withdraw as Postconviction Counsel pursuant to Superior Court Criminal Rule 61(e)(6).

         13. Superior Court Criminal Rule 61(e)(6) provides that:

If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel's opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.

         14. In the motion to withdraw, Defendant's Rule 61 counsel represented that, after undertaking a thorough analysis of the Defendant's claims, counsel has determined that the claims are so lacking in merit that counsel cannot ethically advocate any of them.[11] Counsel further represented that, following a thorough review of the record, counsel was not aware of any other substantial claim for relief available to Defendant.[12] Defendant's Rule 61 counsel represented to the court that there are no potential meritorious grounds on which to base a Rule 61 motion and has therefore sought to withdraw as counsel.[13]

         15. Although initially Defendant informed Rule 61 counsel that he did not desire to file a response to counsel's motion to withdraw, [14] he later changed his mind and advised the court that he would like to raise "new arguments" in support of his Rule 61 motion.[15]

         16. Defendant's request to submit "new arguments" in support of his Rule 61 motion was granted[16], and on September 29, 2016, Defendant's additional "points for consideration" were submitted to the court.[17]

         17. Following the receipt of Defendant's additional points for consideration, the court requested Defendant's Rule 61 counsel to advise whether counsel still sought to withdraw or whether counsel's position had changed in light of the additional points for consideration.[18]

         18. By letter dated November 21, 2016, Defendant's Rule 61 counsel advised the court that after a thorough review of the record and after consideration of the additional points for consideration raised by Defendant, Rule 61 counsel still remain unable to assert any meritorious postconviction claims and that they continue to stand by their motion to withdraw.[19]

         19. Defendant's trial counsel also submitted an Affidavit in response to Defendant's Rule 61 motion responding to Defendant's ineffective assistance of counsel claims.[20]

         20. In order to evaluate Defendant's Rule 61 motion and to determine whether Defendant's Rule 61 counsels' motion to withdraw should be granted, the court should be satisfied that Rule 61 counsel made a conscientious examination of the record and the law for claims that could arguable support Defendant's Rule 61 motion. In addition, the court should conduct its own review of the record in order to determine whether Defendant's Rule 61 motion is so totally devoid of any, at least, arguable postconviction claims.[21]

         DEFENDANT'S RULE 61 MOTION IS WITHOUT MERIT

         21. This case was a one-issue case. The only possible defense was that the search was not supported by reasonable suspicion and that the evidence seized (the gun) should have been suppressed. Defendant's trial counsel filed a suppression motion, a hearing was held, and the motion was denied. The denial of the suppression motion was raised on direct appeal, and the denial of the motion was affirmed by the Delaware Supreme Court.

         22. There were no factual defenses available to Defendant. Defendant, a person prohibited, was found with a loaded gun during a traffic stop. Defendant's prior felony conviction, carrying a concealed deadly weapon, classified him as a person prohibited.

         23. The bench trial was in essence a stipulated trial because Defendant did not have any factual defenses, and the trial needed to be concluded before the suppression issue could be challenged on appeal. At trial, the State called one witness, the arresting officer, who testified about the traffic stop and the recovery of the gun on Defendant's person. After direct examination, defense counsel did not ask any questions because nothing that he could ask would change the fact that the police officer recovered the gun from Defendant's person.[22] At the close of the State's case, defense counsel successfully sought the dismissal of the CCDW charge due to a defect in the indictment. There was no defect in the indictment on the other two charges: PFBPP and PABPP. Not having any viable factual defenses, Defendant was convicted on the remaining two charges.

         24. The suppression issue was then raised on direct appeal, and the Delaware Supreme Court affirmed the decision of the Superior Court concluding that the search and seizure, under the facts ...


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