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State v. Kelson

Superior Court of Delaware

April 4, 2017

STATE OF DELAWARE, Plaintiff,
v.
ANTHONY KELSON, Defendant.

          Submitted: November 15, 2016

          Decided: February 2, 2017

         COMMISSIONER'S 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 State.

          Anthony Kelson, Howard R. Young Correctional Center, Wilmington, Delaware, pro se.

          PARKER, Commissioner.

         This 2nd day of February 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY

         1. On 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.

         2. The 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.[1]

         3. The State's case against Defendant was strong. Defendant was essentially defenseless.[2]

         4. At 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").

         5. 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.[3]

         6. On 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.[4] 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.

         7. Defendant rejected the plea.

         8. On 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 Defendant.[5]

         9. Also 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.[6]

         10. The 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.[7]

         11. On 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.

         12. Following Defendant's sentencing on the new charges, defense counsel withdrew as counsel.[8]

         13. On 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 violation.

         14. Defendant did not file a direct appeal to the Delaware Supreme Court.

         DEFENDANT'S RULE 61 MOTION

         15. On March 26, 2016, Defendant filed the subject motion for postconviction relief raising one claim.[9] 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 2014.

         16. 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 respects.

         17. 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, ...


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