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State v. Johnson

Superior Court of Delaware

February 7, 2017


          Submitted: November 10, 2016

         Upon Defendant's Motion for Post-Conviction Relief: DENIED

          Abigail M. LeGrow, Judge

         This 7th day of February, 2017, upon consideration of Defendant's Motion for Post-Conviction Relief (the "Motion") under Superior Court Criminal Rule 61 ("Rule 61") and the record in this case, it appears to the Court that:


         1. Daveion Johnson, and his co-defendant, Jayjuan Craig, were indicted on October 13, 2014 on charges of Home Invasion, Burglary First Degree, two counts of Robbery First Degree, Offensive Touching, Assault Third Degree, Conspiracy Second Degree, four counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), Carrying a Concealed Deadly Weapon, Possession of a Firearm by a Person Prohibited, and additional weapons charges.[1]

         2. Albert J. Roop, V ("Trial Counsel") represented Johnson from his preliminary hearing through sentencing. The charges in this case were investigated by the Elsmere Police Department, who developed Johnson's co-defendant, Jayjuan Craig, as a suspect in a home invasion and robbery.[2] The investigating officer obtained a warrant to search Craig's residence. When they were approaching the residence to execute the warrant, officers observed a man, later identified as Johnson, laying down in a vehicle parked in close proximity to the residence.[3] Officers detained Johnson and observed contraband in the vehicle, including ammunition. After cross-examining the officer who detained Johnson, Trial Counsel concluded there was no basis to file a motion to suppress because, under the circumstances of the investigation, Johnson's detention and arrest, as well as the related search, were reasonable.[4] Trial Counsel avers he informed Johnson of this conclusion when explaining why a motion to suppress would not be fruitful in this case.[5]

         3. Johnson pleaded guilty on March 10, 2015 to one count each of Home Invasion, PFDCF, Robbery First Degree, and Conspiracy Second Degree. In connection with his plea, Johnson signed a Truth-in-Sentencing Guilty Plea form in which he denied that he had been promised anything in exchange for his plea, including what sentence he would receive.[6] Johnson also acknowledged on the form that he was satisfied with his lawyer's representation and that he had been fully advised of his rights.

         4. Before accepting Johnson's plea, the presiding judge engaged in a colloquy with Johnson regarding his decision to plead guilty and the rights he was waiving. During that hearing, Johnson acknowledged signing the Truth-in-Sentencing form and confirmed that he reviewed the form with Trial Counsel and answered the questions truthfully.[7] The presiding judge also reviewed with Johnson the four charges to which he was pleading guilty and Johnson admitted committing each of those crimes.[8] The judge reviewed with Johnson the constitutional rights he was waiving by pleading guilty, as well as the potential sentence he was facing as a result of the guilty plea, which was a minimum of 12 years and a maximum of 77 years at Level V.[9] Johnson agreed that he accepted the guilty plea, at least in part, to avoid the 26-year minimum mandatory sentence he would have faced if he was convicted at trial of all counts in the indictment.[10] The presiding judge then stated to Johnson:

Now, Mr. Johnson, it's important for you to understand that right now[] you've got the Court's undivided attention. If there's anything that's bothering you about this plea, if there's anything that's bothering you about Mr. Roop's representation of you, the way he's treated you, if you have any questions about what you're doing, now is the time to ask them, because once the plea is accepted, the Court will be much less interested in what you'll have to say about the plea than it is right now. Is there anything that we need to talk about?[11]

         Johnson responded "No."[12] The judge thereafter accepted Johnson's plea, finding it was knowing, intelligent, and voluntary, and that there was a factual basis for it.[13]

         5. The Court then ordered a pre-sentence investigation. As part of the plea agreement, Johnson agreed to testify truthfully against his co-defendant, Jayjuan Craig.[14] Trial Counsel states he informed Johnson that, if he cooperated and testified truthfully against Craig, the State might consider filing a "substantial assistance motion" to reduce the mandatory sentence Johnson was facing.[15] The State advised Johnson similarly. According to Trial Counsel, however, Johnson was not cooperative and his statements during trial preparation were not consistent with the statements he gave to police before his plea.[16] The State ultimately decided not to call Johnson at Craig's trial.

         6. On the morning of Craig's trial, unexpected issues with trial witnesses prompted the State to offer Craig a plea that was better than any offered Johnson. As a result, the State entered a nolle prosequi on Johnson's Robbery First charge, thereby reducing his mandatory sentence to nine years.[17] Johnson was sentenced on July 17, 2015 as follows: (i) as to the Home Invasion charge, six years at Level V, followed by periods of partial incarceration and probation; (ii) as to the PFDCF charge, three years at Level V, and (iii) as to the Conspiracy charge, two years at Level V suspended for one year at Level III.[18] In other words, Johnson's unsuspended Level V time was the minimum sentence required by Delaware law. Johnson's sentence was effective August 18, 2014.

         7. Johnson filed this Motion for post-conviction relief on March 24, 2016.[19] In it, he alleged he was entitled to relief because (i) Trial Counsel was ineffective by failing to file a motion to suppress evidence, (ii) there was no probable cause for Johnson's arrest or the associated search and seizure, and (iii) Trial Counsel promised Johnson he would receive a more lenient sentence. The Court ordered Trial Counsel to respond to the Motion by affidavit and further ordered the State to respond after Trial Counsel's affidavit was filed.[20] Finally, the Court granted Johnson time to respond to the submissions by Trial Counsel and the State. Johnson filed no response.[21]


         A. Procedural bars to Johnson's claims

         8. Before addressing the merits of any claim for post-conviction relief, this Court first must determine whether the motion procedurally is barred under Rule 61.[22] A motion for post-conviction relief may be barred for timeliness and repetition, among other things. A motion filed under Rule 61 is untimely if it is filed more than one year after a final judgment of conviction.[23] A defendant also is barred from filing successive motions for post-conviction relief.[24] The rule further prohibits motions' based on any ground for relief that was not asserted in the proceedings leading up to the judgment of conviction, unless the movant demonstrates "cause for relief from the procedural default" and "prejudice from violation of the movant's rights."[25] Finally, the rule bars consideration of any ground for relief that previously was adjudicated in the case.[26]

         9. Notwithstanding the aforementioned procedural bars, this Court may consider a motion that otherwise is barred if the motion is based on claims that the Court lacked jurisdiction or the motion satisfies the pleading requirements set forth in Rule 61(d)(2).[27] Rule 61(d)(2) requires that the movant plead with particularity that (i) new evidence exists that creates a strong inference that the movant actually is innocent in fact of the acts underlying the charges of which he was convicted, or (ii) a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction or death sentence invalid.

         10. Johnson's Motion was filed less than a year after his sentence became final, and it therefore is timely. The Motion alleges ineffective assistance of counsel, which could not be raised at any earlier stage in the proceedings.[28] As explained below, Johnson's other claims for relief have been waived.

         B. Johnson's claim of ineffective ...

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