Submitted: December 7, 2016
Below: Superior Court of the State of Delaware ID. No.
HOLLAND, VAUGHN, and SEITZ, Justices.
T. VAUGHN, JR. JUSTICE
31st day of January 2017, upon consideration of
the parties' briefs and the record of the case, it
Appellant, Anthony Dale, appeals from the Superior
Court's denial of his Motion for Postconviction Relief.
He makes two claims on appeal. He claims that the Superior
Court erred by finding he was not prejudiced by his trial
counsel's failure to move for severance of charges that
he was a Person Prohibited From Possessing a Firearm and
Ammunition. His second claim is that the Superior Court erred
in finding that he was not prejudiced by his trial
counsel's failure to file a motion to suppress evidence.
June 19, 2013, Officer Thomas Looney of the Wilmington Police
Department was on patrol. Around 10:30 p.m., he saw a man
sitting in the passenger side of a silver Nissan Altima. The
car was parked on the west side of the 2300 block of North
Carter Street in Wilmington. The engine was not running. As
Officer Looney passed the car, he saw Dale "lean from
the passenger seat into the driver's seat with his hands
down on the floor below the steering wheel . . . down below
the seat to the driver's side floor."
Finding Dale's conduct suspicious, Officer Looney circled
the block multiple times. Each time he passed, he saw Dale
lean his body in the same manner towards the driver side of
the car. On the third pass of the car, Officer Looney pulled
behind the Altima, turned on his high beams, and approached
peered out the back window as Officer Looney approached the
car. When Officer Looney reached the front passenger door, he
saw Dale leaning to the driver's side with his head on
the steering wheel and his hands on the driver's side
floor. Officer Looney then shined his flashlight and tapped
on the window to get Dale's attention. Dale appeared
nervous. He sat up, opened the door, and gave the officer his
identification card. At some point during the encounter,
Officer Looney determined the car was not registered to Dale.
Detective David Ham and his partner came to assist Officer
Looney. After they arrived, Officer Looney asked Dale to step
out of the vehicle. Officer Looney asked Detective Ham to
check the driver's side area of the car. Detective Ham
complied, noticed the floor mat was lifted, and found a
loaded gun under the floor mat. Officer Looney also found two
oxycodone pills on Dale after patting him down. The officers
arrested Dale for Possession of a Firearm By a Person
Prohibited, Carrying a Concealed Deadly Weapon, Possession of
Ammunition By a Person Prohibited, and Aggravated Possession.
The State dropped the Aggravated Possession charge prior to
trial, Dale stipulated, through counsel, that he was not
permitted to possess a firearm or ammunition. The stipulation
did not include the reason that Dale was prohibited, which
was that he had a prior drug conviction. After a two day
trial, a Superior Court jury found Dale guilty of all
charges. The Superior Court sentenced Dale to four years of
Level V incarceration followed by decreasing levels of
filed a notice of appeal, but the appeal was later
voluntarily dismissed. He filed a timely Motion for
Postconviction Relief. In the motion, Dale claimed his trial
counsel was ineffective for failing to move to sever the
Person Prohibited charges from the Carrying a Concealed
Deadly Weapon Charge and for not moving to suppress the gun
the police found in the car.
Superior Court Commissioner recommended that the court deny
Dale's Motion for Postconviction Relief. A Superior Court
Judge approved the Commissioner's Report and
review the Superior Court's denial of a Rule 61 motion
for postconviction relief for abuse of
discretion. We review ...