William L. Witham, Jr. Resident Judge
the Court are Defendant Edward Rust's Amended Motion for
Postconviction Relief, the State's Memorandum in
Opposition, and Mr. Rust's Reply Brief. This is Mr.
Rust's first motion for postconviction relief under
Superior Court Criminal Rule 61. Mr. Rust premises his motion
upon the State's nondisclosure of potential impeachment
material: specifically, evidence of misconduct at the Office
of the Chief Medical Examiner (OCME).
motion fails to assert a colorable claim because Mr. Rust
waived his right to receive impeachment material under
Brady when he entered a valid plea. The motion is
thus time-barred under Superior Court Criminal Rule 61 and
his motion will be dismissed.
October 3, 2011, Mr. Rust was arrested by police on suspicion
that he was involved with growing and selling marijuana.
According to police reports, Mr. Rust confessed that he drove
around the state cutting and gathering marijuana, storing it
on his property, and providing it to others to sell. Police
obtained a search warrant and discovered marijuana in several
sheds. They also received consent to search other areas
around the property and discovered still more marijuana.
shed number 1, officers seized 7 grams of loose marijuana and
107 grams of marijuana in a bag. From shed number 2, police
seized a glass jar containing a plastic bag of 29 grams of
marijuana, an ibuprofen bottle of 36 grams of marijuana,
other bottles with trace amounts of marijuana, and a morphine
bottle with 11 grams of marijuana seeds. From shed number 3,
police recovered a red cup with 47 grams of marijuana and
seeds and 3 grams of loose marijuana. Elsewhere on the
property, police seized four one gallon Ziplock bags of
marijuana containing 233 grams, 239 grams, 232 grams, and 234
grams, one paper bag with 579 grams of marijuana, a white
plastic shopping bag with 234 grams of marijuana, a white
plastic bag containing 133 grams of marijuana, a yellow
plastic bag containing 184 grams of marijuana, a large black
plastic bag containing 1.2 kg of marijuana, and another large
plastic bag containing 545 grams of marijuana.
drug evidence was tested by forensic chemists within the
OCME. The items that were tested returned positive for the
suspected substances. There were minor discrepancies in the
weights of the substances as collected and as tested.
final case review on July 25, 2012, Mr. Rust accepted the
State's plea offer. On the record, the State summarized
the agreement, stating that Mr. Rust was: ple[ading] guilty
to [Count 1], drug dealing. .. .
The State will enter a nolle prosequi on the remaining
charges in this indictment. We are asking for immediate
sentencing: 25 years at Level V suspended after ten years at
Supervision Level V followed by six months at Level IV home
confinement and one year at Level III probation.
Again, the State is requesting an enhancing penalty because
he would otherwise be eligible for sentencing as an habitual
The other conditions are: Forfeit all the evidence seized;
undergo a substance abuse evaluation and treatment; the
statutory DNA. And it is a joint request, your Honor, that
the defendant be permitted to report on August 8, and that is
because of his medical condition; trying to get all of his
medicine ready, essentially, for him to bring with
the State's summary of the agreement, defense counsel
related to the Superior Court judge:
The Court has before it paperwork that I filled out with Mr.
Rust today. The procedural history in this matter reflects
not only the fact that I was involved in another case for an
extended period of time but also extensive discussions with
Mr. Rust with his medical providers and discussions with [the
prosecutor] which have ultimately resulted in this plea today
as opposed to going to trial.
I filled out with him the truth-in-sentencing guilty plea
form. The Court will note question number four. There was an
error. That was initialed indicating that there should be a
corrected answer which was put in.
I reviewed with him the trial rights he would be waiving by
entering the plea, the sentence guidelines. He also
understands there is the revocation of the license for a
six-month period. And in all other respects, I believe the
Court will determine that this is a knowing, voluntary, and
the defendant was placed under oath, the judge engaged in a
plea colloquy with him:
THE COURT: Mr. Rust, did you hear what your attorney, Mr.
Schmid, just said to me about your offer to plead guilty?
THE DEFENDANT: Yes.
THE COURT: Was what he said correct?
THE DEFENDANT: Yes, your Honor.
THE COURT: Now, since this charge is an amended charge,
I'm going to read it to you again, Mr. Rust. It reads:
Count 1, drug dealing, a felony, in violation of Title 16
THE COURT: Subsection 2 of the Delaware code of 1974, as
amended. Edward L. Rust, on or about the 23rd day of October
2012, in the county of Kent, state of Delaware, did knowingly
manufacture, deliver, or possess with intent to manufacture
or deliver 1500 grams or more of marijuana, a Tier III
controlled substance, as described and classified in 16 Del.
C. §4701(26) and also §4714(d)(9), and there is an
Do you understand that charge?
THE DEFENDANT: I don't understand the aggravating part of
MR. SCHMID: May I, your Honor?
THE COURT: Sure.
(Confers with client.)
THE DEFENDANT: Yes, your Honor.
THE COURT: Okay. Your attorney has just explained to you what