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State v. Fleetwood

Superior Court of Delaware, Kent

December 6, 2017

STATE OF DELAWARE
v.
THOMAS L. FLEETWOOD, Defendant.

         RK15-04-0355-01 Burglary 2nd (F), RK15-04-0356-01 ATT Theft < 15 (M), RK15-04-0357-01 OFF Touching (M)

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Jason C. Cohee, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

          Thomas L. Fleetwood, Pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION

          Andrea M. Freud Commissioner.

         The defendant, Thomas L. Fleetwood ("Fleetwood"), was found guilty on November 18, 2015 by a jury of one count of Burglary in the Second Degree, 11 Del. C. § 825; one count of Attempted Theft as a lesser included offense of Felony Attempted Theft, 11 Del. C. § 531; and one count of Offensive Touching as a lesser included offense of Assault in the Third Degree, 11 Del. C. § 601. Fleetwood was found not guilty of Criminal Mischief. An Investigative Services Office report was ordered. On January 21 2016 the State filed a motion to declare Fleetwood an habitual offender pursuant to 11 Del. C. § 4214(a). The Court granted the State's motion and declared Fleetwood an habitual offender. On February 9, 2015 Fleetwood was sentenced to a total often years and thirty days incarceration including eight year s minimum mandatory as an habitual offender, suspended for probation after serving the eight years minimum mandatory.

         A timely Notice of Appeal to the Delaware Supreme Court was filed. Fleetwood raised three issues on appeal summarized by the Supreme Court as follows:

... (1) the Superior Court erred by failing to instruct the jury on the lesser included offense of criminal trespass first degree; (2) the prosecutor made improper statements during closing argument amounting to plain error; and (3) the Superior Court erred when it sentenced him for criminal mischief.[1]

         The Supreme Court remanded the sentencing claim due to the fact that there had been a clear error in the Court's jury verdict form which caused the Court to improperly sentence Fleetwood on the Criminal Mischief charge which he was found not guilty. The Court affirmed all of Fleetwood's other claims.[2] Next, Fleetwood, pro se, filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. His corresponding motion for Appointment of Counsel was denied. In his Rule 61 motion, Fleetwood raises three grounds, in part, alleging ineffective assistance of counsel.

         FACTS

         The following is a summary of the facts as noted by the Supreme Court in its opinion on Fleetwood's Direct Appeal:

(1) A Superior Court jury convicted Thomas L. Fleetwood of burglary second degree, misdemeanor attempted theft, and offensive touching after he was caught in Kennard and Takeisha Smith's apartment holding their belongings. The jury acquitted Fleetwood of criminal mischief....
(2) Just after 1:00 a.m. on March 22, 2015, Kennard called his sister, Takeisha, and asked her to take him to a convenience store. They had just moved into a new apartment together, located above the Driftwood Spirits liquor store on South Bradford Street in Dover. When the two of them returned from the store, they noticed the outside door to the apartment was open.
(3) Kennard entered the apartment first with Takeisha close behind him. Although it was dark, Takeisha saw Fleetwood, a stranger to her, in the laundry room. He was holding her laptops and steaks from their freezer. Takeisha asked the man what he was doing in their home, and if the items he was holding were theirs. Fleetwood then dropped the items on the floor and said, 'They sent me. They sent me from Smyrna.' He told them he had both of their cell phones so they could not call 911. He then attacked Kennard.
(4) As Kennard and Fleetwood fought, Takeisha's cell phone fell out of Fleetwood's pocket. She immediately picked it up and dialed 911. When the police arrived, Kennard told them that he did not know Fleetwood, but recognized him from a nearby pub earlier in the evening. A Dover Police Department detective took photographs of the scene showing steaks and pieces of Takeisha's broken laptops on the floor. One laptop was torn in half and the other device would not turn on. Police arrested Fleetwood and charged him with burglary second degree, attempted theft, assault third degree, and criminal mischief. The assault third degree charge was reduced before trial to offensive touching.
(5) At the close of trial, Fleetwood requested an instruction on criminal trespass first degree, a lesser included offense of burglary. The Superior Court denied the request, finding that the evidence at trial did not support the instruction. The jury convicted Fleetwood of burglary second degree, misdemeanor attempted theft, and offensive touching, but acquitted him of criminal mischief.[3]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;FLEETWOOD'S ...


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