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State v. Fleetwood

Superior Court of Delaware, Kent

January 17, 2018

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

          Submitted: January 2, 2018

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

          ORDER

          JEFFREY J CLARK, JUDGE

         On this 17th day of January, 2018, upon consideration of Thomas Fleetwood's ("Fleetwood's") Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:

         1. The defendant 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.

         2. The Court ordered an Investigative Services Office report for sentencing purposes. On January 21, 2016, the State filed a motion to declare Fleetwood an habitual offender pursuant to 11 Del. C. § 4214(a). Thereafter, the Court granted the State's motion and declared Fleetwood an habitual offender. On February 9, 2015, the Court sentenced Fleetwood to a total often years and thirty days incarceration, suspended for probation after serving an eight years minimum mandatory sentence.

         3. The defendant filed a timely appeal to the Delaware Supreme Court. The Supreme Court then remanded the sentence order because of an error in Sentencing Fleetwood on the Criminal Mischief charge. However, the Supreme Court affirmed Fleetwood's other convictions.[1]

         4. Fleetwood then filed a pro se 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 raised three grounds for relief, in part, alleging ineffective assistance of counsel. The Commissioner issued her Report and Recommendation denying the motion. Fleetwood filed no written objections to the Commissioner's decision.

         NOW, THEREFORE, after a de novo review of the record in this matter, and for the reasons stated in the Commissioner's Report and Recommendation dated December 6, 2017;

         IT IS HEREBY ORDERED that the Commissioner's Report and Recommendation attached as Exhibit "A", is adopted by the Court in its entirety. Accordingly, Fleetwood's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 is DENIED.

         EXHIBIT A

         December 6, 2017

         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

         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 of ten 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]

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Supreme Court remanded the sentencing claim due to the fact that there had been a clear error in the Court&#39;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&#39;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 ...


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