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State v. Bissoon

Superior Court of Delaware

January 3, 2018

STATE OF DELAWARE, Plaintiff,
v.
HAROLD C. BISSOON, JR., Defendant.

          Submitted: October 16, 2017

          Kathryn S. Keller, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Harold C. Bissoon, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware, pro se. PARKER, Commissioner

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S THIRD MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED

          This 3rd day of January 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. On October 28, 2013, Defendant Harold C. Bissoon, Jr. pled guilty to two counts of Robbery First Degree and one count of Conspiracy Second Degree. As part of the plea agreement, the State agreed to dismiss all of the remaining charges which included two additional counts of Robbery First Degree and one count of Wearing a Disguise During the Commission of a Felony.

         2. Also as part of the plea agreement, the State agreed to cap its recommendation for Level V time to 18 years. The State further agreed that it would not seek to have Defendant sentenced as a habitual offender, pursuant to 11 Del. C. 4214(a) or (b).[1] Had Defendant proceeded to trial and been convicted of even a single count of Robbery First Degree, he would have faced 25 years to life under 11 Del. C. § 4214(a), or an automatic life sentence under U Del. C. § 4214(b).

         3. Following a pre-sentence investigation, on January 31, 2014, Defendant was sentenced to a total of 32 years at Level V, suspended after 15 years at Level V, followed by decreasing levels of probation.

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

         5. Thereafter, Defendant filed a motion for modification of sentence.[2] By Order dated April 4, 2014, the Superior Court denied the motion on the basis that the sentence was appropriate for all the reasons stated at the time of sentencing.[3] Defendant appealed the denial of his motion for modification of sentence to the Delaware Supreme Court. By Order dated August 19, 2014, the Delaware Supreme Court affirmed the judgment of the Superior Court.[4] The Delaware Supreme Court held that the sentence was a product of a plea agreement and was supported by reasons justifying the sentence, including Defendant's prior violent criminal activity and his repetitive criminal conduct.[5]

         6. On August 14, 2014, Defendant filed his first Rule 61 motion for postconviction relief.[6] In that motion, Defendant claimed, among other things, that he was overcharged and that there was insufficient evidence to support his second robbery conviction.[7]Specifically, in one of the several claims raised in the motion, Defendant contended that, during the plea negotiations, his defense counsel failed to recognize that the State lacked evidence to prove that he was guilty of more than one count of robbery. According to Defendant, because of this alleged lack of evidence, the second count of robbery in the plea agreement should have been reduced to aggravated menacing. Defendant further contended that defense counsel's failure to negotiate a more favorable plea agreement constituted ineffective assistance of counsel.

         7. On March 23, 2015, the undersigned Superior Court Commissioner issued her Report and Recommendation recommending that the Rule 61 postconviction motion be denied.[8] The Commissioner recommended that Defendant's Rule 61 motion be denied since the claims raised therein were procedurally barred, waived and without merit. The Commissioner held that Defendant's claims were procedurally barred for failure to raise them on direct appeal, were waived upon the entry of his guilty plea, and were otherwise without merit.[9]

         8. The Commissioner further noted that the record reflected that Defendant had entered into his plea knowingly, intelligently and voluntarily.[10] At the time of his plea, Defendant also acknowledged his guilt as to each of the charges for which he pled guilty.[11] It was only after finding that Defendant's plea was entered into knowingly, intelligently and voluntarily that the court accepted the plea.[12]

         9. By Order dated June 4, 2015, the Superior Court adopted the Commissioner's Report and Recommendation and denied Defendant's Rule 61 postconviction motion.[13]Defendant appealed, and on December 7, 2015, the Delaware Supreme Court affirmed the decision of the Delaware Superior Court.[14] The Delaware Supreme Court held that Defendant's ineffective assistance of counsel claim was without merit.[15] The Delaware Supreme Court further held that Defendant's claims that the State lacked evidence to convict him of the offenses in the plea agreement were without merit.[16]

         10. The Delaware Supreme Court recognized that a valid guilty plea waived any right to challenge the strength of the State's evidence.[17] Defendant freely and voluntarily pled guilty to two counts of robbery and one count of conspiracy and thereby waived his right to challenge the strength of the State's case as to these convictions.[18] The Delaware Supreme Court also recognized that Defendant received a significant benefit from the plea agreement negotiated since five additional charges were dismissed including two counts of robbery and two weapon offenses, and given the State's agreement not to seek an enhanced sentence.[19]

         11. On May 8, 2017, Defendant filed his second Rule 61 postconviction motion. In that motion, he claimed that his due process and equal protection constitutional rights were violated because there was not sufficient evidence or a sufficient legal basis to convict him of the second robbery for which he pled guilty.[20]

         12. On June 1, 2017, the undersigned Superior Court Commissioner issued her Report and Recommendation recommending that Defendant's Second Motion for Postconviction Relief be summarily dismissed.[21] The Commissioner recommended that Defendant's Second Rule 61 motion be summarily dismissed since Defendant had not met the pleading requirements for proceeding with the motion. The Commissioner held that Defendant's motion was also time barred, waived and otherwise procedurally barred.[22]

         13. By Order dated June 28, 2017, the Superior Court adopted the Commissioner's Report and Recommendation and denied Defendant's Second Rule 61 postconviction motion.[23] Defendant appealed, and on September 15, 2017, the Delaware Supreme Court dismissed the appeal.[24]

          DEFENDANT'S THIRD RULE 61 MOTION

         14. On October 12, 2017, Defendant filed the subject motion, his third Rule 61 postconviction motion. In the subject motion he again claims that his due process rights were violated and that his counsel was ineffective for permitting him to plead guilty to a second robbery when there was not sufficient evidence or a sufficient legal basis to support that conviction.[25]

         15. Defendant must first satisfy the pleading requirements before he is entitled to proceed with this motion. Like Defendant's second Rule 61 postconviction motion, this motion, Defendant's third Rule 61 motion, shall be summarily dismissed unless the defendant establishes: 1) that new evidence exists that creates a strong inference that he is actually innocent of the charge for which he was convicted, or 2) the existence of a new rule of constitutional law made retroactive to cases on collateral review rendered his convictions invalid.[26] If it plainly appears from the motion for postconviction relief that the movant is not entitled to relief, the Court may enter an order for its summary dismissal and cause the movant to be notified.[27]

         16. Like Defendant's second Rule 61 motion, this motion, Defendant's third, should be summarily dismissed. Defendant has not pled with particularity that any new evidence exists that creates a strong inference that he is actually innocent of the charge for which he was ...


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