Submitted: November 15, 2016
Decided: February 2, 2017
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
Zachary D. Rosen, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Anthony Kelson, Howard R. Young Correctional Center,
Wilmington, Delaware, pro se.
2nd day of February 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
FACTS AND PROCEDURAL HISTORY
November 24, 2014, Defendant Anthony Kelson was indicted on a
total of nine charges. These charges consisted of four counts
of drug dealing, two counts of aggravated possession,
possession of ammunition by a person prohibited, and two
counts of illegal possession of a controlled substance. The
four counts of drug dealing each carried a minimum mandatory
sentence of two years. If convicted at trial on all the
counts in the indictment, Defendant was facing jail time of
at least eight years (minimum mandatory) and a maximum
sentence of over 100 years at Level V.
charges stemmed from a July 2014 drug investigation that
culminated in searches conducted in August 2014 at two
residences and of Defendant's vehicle resulting in the
finding of a total of over 20 grams of heroin and a number of
rounds of ammunition. The investigation revealed that
Defendant was the primary subject selling the heroin from the
two residences and vehicle.
State's case against Defendant was strong. Defendant was
the time of the subject offenses, Defendant was on probation
for three prior convictions. In Criminal Action Number
11120005071, Defendant was on probation resulting from a
conviction for Drug Dealing Heroin at a Tier 2 Level, and in
Criminal Action Number 1301013163, Defendant was on probation
on convictions of Aggravated Possession and Driving Under the
Influence of Alcohol. The new charges also triggered
violations of these probations ("VOP").
Apparently, a Fast Track hearing was held in September 2014,
and a two year plea offer was extended to Defendant to
resolve his new charges and one of his prior cases involving
VOPs. The State then realized that there was a second case
involving a VOP, and that the second case had not been
considered before the plea offer was extended. The plea offer
was then withdrawn.
November 26, 2014, a second Fast Track hearing was conducted.
At this time Defendant was offered a plea that would resolve
all the new charges and all the pending VOPs. As previously
stated, two of the VOPs stemmed from convictions in one case,
and one VOP stemmed from a conviction in another case, for a
total of three pending violations stemming from two cases.
Thus, the plea offer was to resolve all of the new charges
and all of the three pending VOPs with the State recommending
a sentence of 5 years at Level V. The plea offer required that
Defendant plead guilty to one count of the indictment, drug
dealing heroin at a Tier 4 Level, and admit to the three
violations of probation.
Defendant rejected the plea.
April 20, 2015, Defendant accepted a third plea offer.
Defendant agreed to plead guilty to one count of the
indictment, drug dealing heroin at a Tier 4 Level. As part of
the plea agreement, the State agreed to dismiss the remaining
eight counts of the indictment against
as part of the plea agreement, the parties agreed to open
sentencing after a presentence investigation was completed.
On the charge for which Defendant pled guilty, he was facing
a two year minimum mandatory sentence at Level V and a
maximum sentence of 25 years at Level V. The sentencing
guidelines for 20 or more grams of heroin are 4 to 10 years
at Level V.
plea agreement did not include the resolution of the pending
VOPs. The parties agreed that Defendant would first be
sentenced on the new drug dealing charge, that Defendant
would acknowledge that he was in violation of his probation
as a result of this conviction, and that sentencing on the
three VOPs would be deferred until after sentencing on the
new drug dealing charge.
December 11, 2015, following a presentence investigation,
Defendant was sentenced to 25 years at Level V, suspended
after four years, following by two years at Level IV,
suspended after 6 months, followed by 18 months at Level III.
Following Defendant's sentencing on the new charges,
defense counsel withdrew as counsel.
January 13, 2016, Defendant, represented by a public
defender, was sentenced on the three VOPs. Defendant was
sentenced to 5 years at Level V on the drug dealing probation
violation, one year at Level V suspended for one year at
Level IV on the Aggravated Possession violation, and one year
at Level V suspended for one year at Level III on the DUI
Defendant did not file a direct appeal to the Delaware
RULE 61 MOTION
March 26, 2016, Defendant filed the subject motion for
postconviction relief raising one claim. Defendant claims
that his counsel was ineffective for not properly
communicating case information to him. Defendant claims that
if counsel had properly communicated with him, Defendant
would have accepted the 5 year plea deal offered in November
Defendant does not challenge that the prudent course of
action was to accept a plea. Defendant realizes that the
State's case against him was strong and that he was
facing a significantly longer period of incarceration if
convicted of all the charges. Defendant also does not contest
that the plea he accepted on April 20, 2015 was proper in all
Defendant's contention is that if he had been better
advised by counsel he would have accepted the November 26,
2014 plea offer in which the State agreed to recommend a
total of 5 years to resolve all the new pending charges and
the pending VOPs. Instead, he accepted the April 20, 2015
plea offer which resulted in 4 years of unsuspended Level V
time on the pled to charge, ...