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State v. Ellerbe

Superior Court of Delaware

September 26, 2017

STATE OF DELAWARE,
v.
BERNARD ELLERBE, Defendant.

          Submitted: August 11, 2017

         Cr. A. Nos. IN 14-07-0530, etc.

          ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

          PAUL R. WALLACE, JUDGE

         This 26th day of September, 2017, upon consideration of the Defendant Bernard Ellerbe's ("Ellerbe") Motion for Postconviction Relief (D.I. 65) and the record in this matter, it appears to the Court that:

         (1) On June 25, 2014, Task Force Officer Mark Grajewski, Task Force Officer Michael Cornbrooks, and Special Agent Dave Hughes met in a Ruby Tuesday restaurant's parking lot, located at 928 Bear Corbitt Road, Bear, Delaware, to discuss a surveillance operation.[1] Unrelated to their operation, the officers noticed a white car, occupied by two individuals, pull into the parking lot. Moments later a black Chevy Malibu entered into the parking lot, circled around as if looking for someone, then pulled directly next to the white car.[2] Each car's driver's window was rolled down and the drivers engaged in a hand-to-hand exchange.[3] The white car drove away, while police observed the black car's driver - later identified as the Defendant, Ellerbe - counting money.[4] At that point, officers suspected a drug transaction had occurred and decided to stop the black car for further investigation.[5]The officers, each in their own unmarked vehicle, followed Ellerbe's car out of the parking lot.[6]

         (2) Officer Cornbrooks initiated his emergency lights and Ellerbe pulled over onto the road's shoulder.[7] But as soon as Officer Cornbrooks approached the car, Ellerbe sped away.[8]

         (3) Ellerbe then led police on a high speed chase that ultimately resulted in him losing control of his car and striking a tree.[9] Officers removed Ellerbe, who was not seriously injured, and found a ripped bag containing twenty bundles, or 260 individual bags, of heroin on his lap.[10] Ellerbe also had approximately $12, 000 in cash in his pocket.[11]

         (4) Ellerbe was indicted by a grand jury on eleven charges related to drug possession and police evasion. A two-day jury trial was held in this Court in January 2015. Michael C. Heyden, Esquire ("Heyden") represented Ellerbe throughout the trial. The jury found Ellerbe guilty of Drug Dealing, Aggravated Possession, Reckless Endangering in the First Degree (Two Counts), Disregarding a Police Officer's Signal, Possession of Drug Paraphernalia, and Reckless Driving.[12] After a pre-sentence investigation was prepared, the Court sentenced Ellerbe to eighteen years of imprisonment followed by diminishing levels of partial confinement and probationary supervision.[13]

         (5) Heyden filed a timely Notice of Appeal to the Delaware Supreme Court on Ellerbe's behalf, but it was voluntarily dismissed in June 2016, [14] so that Ellerbe's new attorney, Patrick J. Collins, Esquire, could file his appeal.[15] In September 2015, Ellerbe voluntarily dismissed that appeal.

         (6) Ellerbe then filed his first Motion for Postconviction Relief (the "First Motion") in June 2016, alleging ineffective assistance of counsel and seeking vacatur of his conviction and a new trial.[16]

         (7) The Court denied the First Motion in August2016.[17] And the Delaware Supreme Court affirmed this Court's decision earlier this year.[18]

         (8) Ellerbe filed this second Motion for Postconviction Relief (the "Second Motion") several months later. He says he is entitled to postconviction relief for any one of six reasons: (i) the State did not have a reasonable, articulable suspicion for the traffic stop that culminated in his arrest; (ii) the police's pat-down search of Ellerbe and seizure of $12, 000 dollars from his pants amounted to an unconstitutional search and seizure; (iii) expert testimony from a forensic chemist was not based on specialized knowledge; (iv) expert testimony from the forensic chemist on the weight of the heroin seized from Ellerbe was flawed; (v) testimony regarding accident reconstruction was flawed; and (vi) because the testimony from the forensic chemist on the weight of the heroin was flawed, Ellerbe was illegally convicted of drug dealing and aggravated possession without proof of quantity.

         (9) The Court has engaged in the preliminary consideration of Ellerbe's application required under Superior Court Criminal Rule 61(d). The Court finds that, consistent with Rules 61(i)(2) and (d)(5), his should be SUMMARILY DISMISSED because it is an unexcused successive motion.

         (10) When considering applications for postconviction relief under its criminal rules, this Court addresses any applicable procedural bars before turning to the merits.[19] This policy protects the integrity of the Court's rules and the finality of its judgments. Addressing the merits of a case that does not meet procedural requirements effectively renders our procedural rules meaningless.[20]

         (11) Ellerbe's motion for postconviction relief is controlled by the limitation on successive motions found in Rule 61(i)(2).[21]

         (12) Ellerbe posits that Criminal Rule 61 's procedural bars to successive claims are inapplicable to the Second Motion. But he cites to a previously repealed version of the salient Rule 61 provisions to support his argument. That iteration stated that Criminal Rule 61 's procedural bars were inapplicable to "colorable claims that there has been a miscarriage of justice because of a constitutional violation[.]"[22]This Court's criminal rules were amended on June 4, 2014, to omit that provision. Now, Rule 61 reads: "[B]ars to relief. . . shall not apply either to a claim that the court lacked ...


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