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State v. Wallace

Superior Court of Delaware

September 27, 2017

STATE OF DELAWARE,
v.
BRANDEN WALLACE, Defendant.

          Submitted: August 28, 2017

         Upon Defendant's Motion for Postconviction Relief DENIED

          Carolyn S. Hake, Deputy Attorney General, Department of Justice, Attorney for the State of Delaware

          Patrick J. Collins, Esquire, Collins & Associates, Attorney for Defendant

          MEMORANDUM OPINION

          Andrea L. Rocanelli, Judge

          Branden Wallace ("Defendant") was on probation when Probation & Parole conducted an administrative search that resulted in new charges as well as allegations of violation of probation. Defendant was detained on July 23, 2010.

         Defendant was sentenced for a violation of probation in Case No. 0907027836 by Order dated September 22, 2010, effective July 23, 2010, 2 years at Level V in connection with drugs and drug paraphernalia located during the administrative search. The finding of violation of probation and sentence imposed were affirmed by the Delaware Supreme Court.[1]

         The drugs and drug paraphernalia located during the administrative search also resulted in new charges in Case No. 100400082 ("New Offenses"). Defendant agreed to a stipulated bench trial for the New Offenses based, in part, on incorrect information that the minimum mandatory time he faced was 14 years.

         Defendant stipulated to a non-jury trial on three of the new charges[2] - Trafficking, PWID, and PFBPP - in exchange for the State's promise to not seek habitual status and to recommend a sentence of not more than 14 years, which was represented to Defendant to be the required minimum mandatary period of incarceration.[3] The stipulated non-jury trial was held on March 8, 2011, and the Court found Defendant guilty of all three charges. On June 10, 2011, the Court sentenced Defendant to 16 years at Level V followed by decreasing levels of supervision.[4] The Supreme Court affirmed the Superior Court's decision on remand on December 31, 2012.[5]

         Defendant filed his first motion for postconviction relief on June 10, 2013 ("Initial Rule 61 Motion"). Defendant filed an amended motion for postconviction relief and a request for appointment of counsel on October 1, 2013. Christopher Tease was appointed as counsel, and filed an opening brief in support of the motion for postconviction relief on February 11, 2014. Tease then filed an amended motion for postconviction relief on August 18, 2014. After Tease ceased practicing law, the Court appointed Donald Roberts as new counsel to represent Defendant in his motion for postconviction relief. Shortly thereafter, Roberts closed down his law practice. As a result, the Court appointed Patrick Collins ("Rule 61 Counsel") who filed an amended motion for postconviction relief on April 17, 2017 ("Rule 61 Motion"). The State opposes Defendant's Rule 61 Motion.

          Factual Background

         A. Home Visit Compliance Check

         This case arose out of a home visit compliance check conducted on April 1, 2010.[6] Defendant had recently been charged with Offensive Touching against Johanna Garcia ("Garcia"), which had resulted in a No Contact Order against Defendant. Defendant and Garcia were both on Level II probation, and they each listed their address as 79 Chaucer Drive, Newark, Delaware ("Residence"). Because of the No Contact Order, Defendant's presence at this Residence with Garcia would be a violation of his probation and a violation of the Court's No Contact Order.[7]

         Members of the Governor's Task Force conducted a home visit compliance check at the Residence pursuant to Delaware Department of Correction, Bureau of Community Corrections, Probation and Parole Procedure Number 7.3 ("Procedure 7.3"). The compliance check was conducted by Probation Officer James Kelly ("PO Kelly"), Probation Officer Philip Graham ("PO Graham"), and Officer Eric Huston of the Delaware State Police ("Officer Huston"). PO Graham announced himself as a probation officer and knocked on the door of the Residence. Devonte Garcia, Garcia's 14-year old son, answered and opened the door wide, which PO Graham understood to be an invitation to enter.

          Devonte Garcia informed PO Graham that neither Defendant nor Garcia were home. PO Graham then conducted a "safety sweep" of the home under Procedure 7.3 to ensure that no other persons were present. PO Graham entered Defendant and Garcia's bedroom during the "safety sweep" and saw what appeared to be a bag of cocaine in plain view. As a result, PO Graham invoked Delaware Department of Correction, Bureau of Community Corrections, Probation and Parole Procedure Number 7.19 ("Procedure 7.19") to conduct an administrative searches of the Residence and Defendant's vehicle. The administrative search of the Residence resulted in the seizure of 1.9 grams of crack cocaine, 1.2 grams of powder cocaine, 26 bags of heroin, hypodermic needles and syringes, morphine and Adderall pills, a handgun, ammunition to another handgun, and $2, 251 in case. The administrative search of the vehicle resulted in the seizure of 310.7 grams of powder cocaine and a loaded handgun. Defendant was indicted on June 21, 2010.

         B. The Motion to Suppress and the Plea Offers

         Because Defendant was already on probation at the time of his indictment and arrest, [8] he faced both the new charges and the violation of probation ("VOP") stemming from the new charges. Defendant was placed on a fast track VOP calendar in accordance with the Superior Court's policy at that time, and his hearing was scheduled for September 22, 2010 ("Fast Track VOP Hearing"). Before the date of Defendant's Fast Track VOP Hearing, his first attorney, Beth Savitz, filed a Motion to Suppress the evidence found at the Residence. Michael Modica then entered his appearance on behalf of Defendant ("Trial Counsel").

         While the Motion to Suppress was pending, and prior to Defendant's VOP Hearing, the State offered a plea to resolve both Wallace's VOP and the new charges ("Initial Plea Offer"). The Initial Plea Offer would have allowed Defendant to plead guilty to Trafficking in exchange for the State's recommendation of 8 years' incarceration. Trial Counsel wrote to Defendant on September 10, 2010 to explain the VOP hearing and the Initial Plea Offer. In the letter, Trial Counsel also wrote, "[The Motion to Suppress] states strong legal grounds and I am optimistic that we will win."[9]

         Trial Counsel sent a second letter to Defendant on September 16, 2010 in which Trial Counsel explained the terms of the Initial Plea Offer in more detail, and the consequences of not accepting. Trial Counsel stated that future plea offers "are just going to get worse."[10] In addition, Trial Counsel explained that the risk of losing the suppression hearing was that all of the evidence found in the Residence and Defendant's vehicle would be admitted as evidence at trial.11 Trial Counsel also explained that, if Defendant were convicted, he could be declared an habitual offender and receive a mandatory life sentence.12 Trial Counsel wrote, "While I believe that we have strong grounds to support the suppression motion, I cannot guarantee the result."13He told Defendant that there was a "tremendous risk in proceeding to trial, " and asked Defendant to contact him immediately if Defendant decided to accept the Initial Plea Offer. Defendant ultimately rejected the Initial Plea Offer, and the Court sentenced him to two (2) years' incarceration for the VOP at the Fast Track VOP Hearing.14

         The Court held the suppression hearing on January 21, 2011. The State made a second plea offer to Defendant prior to the start of the suppression hearing, which included the State's agreement that the State would recommend no more than 7 years' incarceration ("Second Plea Offer"). Defendant also rejected the Second Plea Offer. At the start of the hearing, the State told the Court about the Second Plea Offer, explained that the State would seek a mandatory life sentence for Defendant if he was convicted, and asked the Court to engage in a colloquy with Defendant.15Trial Counsel stated that Defendant understood the Second Plea Offer, and the risk in not accepting it, but had decided to continue with the suppression hearing.16 The Court then asked Defendant if Trial Counsel's representations were correct and if Defendant understood that if he were convicted, the State would seek a mandatory life sentence.17 Defendant stated that he understood, and the Court continued with the suppression hearing.18

         The main issue before the Court at the suppression hearing was whether 14-year-old Devonte Garcia consented to the search of the Residence. The Court ultimately denied the motion to suppress, but did so on the grounds that the officers had reasonable articulable suspicion to enter the Residence. The Court did not address the consent issue. Defendant was subsequently convicted of Trafficking, PWID, and PFBPP at a stipulated non-jury trial and sentenced to 16 years' incarceration on the new charges, in addition to the 2 years at Level V already imposed for the VOP.19

         C. Defendant's Direct Appeal

         Defendant filed a direct appeal with the Delaware Supreme Court on June 27, 2011 addressing two issues related to the Court's denial of the motion to suppress. First, Defendant argued that the Court decided the motion to suppress before the hearing took place and thereby violated his right to a fair and impartial suppression hearing. Second, Defendant argued that the Court applied the wrong legal standard in concluding that reasonable articulable suspicion upheld the entry into the Residence rather than addressing the issue of consent.

         On March 20, 2012, the Supreme Court remanded the case back to the Superior Court for a consideration of two issues not addressed. First, the Supreme Court asked the Superior Court to consider whether Devonte Garcia or Defendant consented to entry of the Residence. Second, the Supreme Court asked the Superior Court to consider the constitutionality of Procedure 7.3.

         The Superior Court issued its decision on remand on May 17, 2012. The Superior Court concluded that Devonte Garcia consented to entry by opening the door wide when the officers knocked and that Procedure 7.3 was constitutional. The Supreme Court affirmed the Superior Court's decision on remand on December 31, 2012.20Defendant filed his Initial Rule 61 Motion on June 10, 2013.

         Defendant's Asserted Grounds for Postconviction Relief

         Defendant asserts two grounds for postconviction relief in his Rule 61 Motion. First, Defendant argues ineffective assistance of counsel related to Trial Counsel's advice to Defendant regarding the plea offers. Second, Defendant argues ineffective assistance of counsel related to Trial Counsel's alleged failure to seek merger of the Trafficking and PWID sentences.

          Procedural Bars to Postconviction Relief

         Before addressing the merits of a motion for postconviction relief, this Court must consider the procedural requirements of Rule 61(i).21 Rule 61(i)(1) requires a motion for postconviction relief be filed within one year after the judgment of conviction is final.22 Defendant's judgment of conviction became final on December 31, 2012, 23 and Defendant filed his Initial Rule 61 Motion on June 10, 2013. Therefore, Defendant's Rule 61 Motion is not time-barred and will be considered on the merits.

         Standard of Review for Ineffective Assistance of Counsel Claims

         Ineffective assistance of counsel claims are governed by the two-prong test established in Strickland v. Washington24In order to satisfy Strickland, the movant must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness, [25] and (2) that counsel's errors prejudiced the defendant.[26] In considering the first prong, there is a strong presumption that counsel's actions were professionally reasonable.[27] In considering the second prong, the movant must show "that there is a reasonable probability that, but for counsel's ...


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