PFBPP PABPP (F) RK12-11-0100-01 PFDCF (F) RK12-11-0101-01
ASLT2nd(F) RK12-11-0103-01 Reck End 1st
Defendant's Motion for Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
Gregory R. Babowal, Esq., Deputy Attorney General, Department
of Justice, for the State of Delaware.
Patrick J. Collins, Esq. and Matthew C. Buckworth, Esq.,
Collins and Associates, Wilmington, Delaware for Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
defendant, Luis M. Clark ("Clark"), was found
guilty following a jury trial on February 20, 2014 of one
count of Possession of a Firearm or Firearm Ammunition by a
Person Prohibited ("PFBPP"), 11 Del C.
§ 1448; one count of Possession of a Firearm during the
Commission of a Felony, 11 Del C. § 1447; one
count of Assault Second Degree, 11 Del. C. §
612 and one count of Reckless Endangering First Degree, 11
Del. C. § 604. Clark was also facing one count
of Aggravated Menacing and three additional counts of
Reckless Endangering in the First Degree but was found not
guilty on those charges. On April 17, 2014, at sentencing,
Clark was declared a habitual offender pursuant to 11
Del. C. § 4214(a) and received a total sentence
of forty-six years Level V incarceration followed by one year
timely Notice of Appeal to the Delaware Supreme Court was
filed. Clark's counsel filed a brief and motion to
withdraw pursuant to Supreme Court Rule 26(c). In the motion
to withdraw, appellate counsel represented that he conducted
a conscientious review of the record and concluded that no
meritorious issues existed. By letter, counsel informed Clark
of the provisions of Rule 26(c) and attached a copy of the
motion to withdraw and accompanying brief. Clark was informed
of his right to supplement his attorney's presentation.
Clark, pro se, raised four issues for appeal for the
Supreme Court to consider, which the Supreme Court classified
First, he contends that the prosecutor engaged in misconduct.
Second, he asserts that his trial counsel was ineffective.
Third, he contends that the complaining witness'
testimony was not credible. Finally, he contends that the
Superior Court erred by failing to ensure that Clark
understood his counsel's stipulation allowing a DNA
report into evidence without requiring the State to produce
an expert witness to testify.
Supreme Court granted the State's motion to affirm as to
all of Clark's claims. Next, pro se, Clark filed a
Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 ("the original motion").
Subsequently Patrick J. Collins, Esquire and Matthew C.
Buckworth, Esquire ("Appointed Counsel") were
appointed to represent Clark in his motion. They filed an
amended motion for postconviction relief alleging ineffective
assistance of counsel on March 28, 2016.
following is a summary of the facts as noted by the Delaware
Supreme Court in its opinion:
(5)The evidence presented by the State at trial reflects the
following version of events: On July 17, 2012, the victim,
Oscar Ventura, his girlfriend and three children were in a
Mazda minivan. Ventura parked the minivan in a handicapped
parking space in front of their apartment building so that
his girlfriend could return to their apartment to retrieve
their dirty laundry, which they were planning to take to the
laundromat. Their neighbor, Luis Clark, made a derogatory
comment about Ventura parking in the handicapped spot.
Ventura told his girlfriend that he was going to 'whoop
[Clark's] ass, ' but his girlfriend told him not to
(6) After his girlfriend left the vehicle to return to their
apartment, Ventura testified that he saw Clark approaching
the driver's side door from the rear of his vehicle in a
'tactical, ' 'crouching' position with a
silver gun in his hand. Ventura grabbed a taser which was
attached to a set of brass knuckles, from his center console.
As he opened the driver's side door, he pushed Clark
backwards. The two engaged in a physical fight. Ventura
testified that Clark began hitting him in the face with the
gun. During the struggle, the gun discharged and struck the
driver's side door of the vehicle. The three children
were still inside, although none of them was hurt. After the
gun discharged, Clark walked away.
(7) During cross-examination, Ventura admitted that he was
familiar with handguns because he and his two brothers, who
were both in the army, liked to go to a local shooting range
and practice. He testified that the cover photo on his
Facebook page was a photo of guns. He denied owning any guns
and stated that he only rented them when he went to the
(8) An eyewitness, who had been at a business across the
street, testified at trial that she saw two men (whom she
described as a black man and a white man) fighting. She saw
the black man holding a gun to the white man's neck. She
did not see the white man strike the black man. After the gun
discharged, she saw the black man hand the gun to a different
black man in a red shirt.
(9) Police officers were dispatched to the scene in response
to several phone calls reporting gunfire. Approximately 20
officers responded. One officer testified that he reached the
scene and found Ventura bloody and dazed. After he was
briefly interviewed, Ventura was taken to the hospital by
ambulance. Other officers went to Clark's
girlfriend's apartment, which was the apartment next door
to Ventura's. They recovered bloody napkins from the
apartment but found no sign of Clark. Clark, in fact, was not
found and arrested until several months after the incident.
(10) Another officer testified at trial that he responded to
the vicinity of the reported gunfire in order to establish a
perimeter around the scene. In the process, the officer
encountered a man who turned his back upon seeing the
officer. The officer handcuffed the man, who turned out to be
Clark's brother, Donald. The officer ...