Submitted: November 21, 2016
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED AND COUNSELS'
MOTION TO WITHDRAW SHOULD BE GRANTED.
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.
25th day of January, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
AND PROCEDURAL HISTORY
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.
motion to suppress was filed by defense counsel on
Defendant's behalf, and following a hearing on the motion on
May 16, 2014, the motion was denied.
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.
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.
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.
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
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
Thereafter, on November 23, 2015, Defendant filed a motion
for modification/reduction of sentence. 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
October 26, 2016, Defendant filed another motion for
reduction or modification of sentence. 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
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.
61 MOTION AND COUNSEL'S MOTION TO WITHDRAW
October 5, 2015, Defendant filed a pro se motion for
postconviction relief. Defendant was thereafter assigned
June 28, 2016, assigned counsel filed a Motion to Withdraw as
Postconviction Counsel pursuant to Superior Court Criminal
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.
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. 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. 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.
Although initially Defendant informed Rule 61 counsel that he
did not desire to file a response to counsel's motion to
withdraw,  he later changed his mind and advised
the court that he would like to raise "new
arguments" in support of his Rule 61
Defendant's request to submit "new arguments"
in support of his Rule 61 motion was granted, and on
September 29, 2016, Defendant's additional "points
for consideration" were submitted to the
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.
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
Defendant's trial counsel also submitted an Affidavit in
response to Defendant's Rule 61 motion responding to
Defendant's ineffective assistance of counsel
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
RULE 61 MOTION IS WITHOUT MERIT
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
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.
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. 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.
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