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State v. Page

Superior Court of Delaware

January 29, 2018

DARREL PAGE, Defendant.


          Lynne M. Parker Commissioner

         This 29th day of January, 2018, upon consideration of Defendant's Motion for Postconviction Relief, Motion of Postconviction Relief Memorandum, and the exhibits attached to the Motion of Postconviction Relief Memorandum (collectively, the "Sixth Rule 61 Motion") filed by Defendant Darrel Page; the facts and legal authorities set forth in the Fifth Rule 61 Motion; and the entire record in this case;

         Conviction, Sentencing, and Appeal

         1. On June 17, 2003, after a trial by jury, Mr. Page was convicted of three counts of Murder in the First Degree, one count of Robbery Second Degree, one count of Conspiracy First Degree, one count of Endangering the Welfare of a Child, and various weapons charges. On February 24, 2006, this Court sentenced Mr. Page to life imprisonment without the possibility of parole for each count of Murder in the First Degree.

         2. Mr. Page appealed his convictions and sentence to the Supreme Court of Delaware. In the appeal, Mr. Page was represented by counsel separate from his trial counsel. Mr. Page contended that (i) the State violated his Sixth Amendment right to a speedy trial; (ii) he received ineffective assistance of counsel at trial; and (iii) the trial judge erred in admitting certain evidence-photographs, crime scene video, and a video of an out-of-court statement to police by Kim Still, a State witness.

         3. In an Opinion dated October 19, 2007, the Supreme Court affirmed Mr. Page's convictions and sentences. The Supreme Court held that Mr. Page was not denied his right to a speedy trial, and that this Court did not err or abuse its discretion in admitting the photographs and videos. The Supreme Court, however, did not address Mr. Page's ineffective assistance of counsel claims because that argument had not yet been considered by this Court.

         Fifth Motion for Postconviction Relief

         4. On November 30, 2016, Mr. Page, acting pro se, filed his fifth motion for postconviction relief (the "Fifth Rule 61 Motion").[1] In the Fifth Rule 61 Motion, Mr. Page asserted claims of ineffective assistance of trial counsel. Specifically, this time, Mr. Page claims ineffective assistance of counsel based on appellate counsels' purported failure to request and obtain ten days of trial transcripts when preparing Mr. Page's appeal. The Fifth Rule 61 Motion claimed that this purported failure also resulted in due process, equal protection, and speedy trial violations.

         5. On June 8, 2017, this Court summarily dismissed the Fifth Rule 61 Motion as untimely and repetitive. In addition, the Court specifically addressed Mr. Page's arguments regarding the purported failure by appellate counsel to request and obtain trial transcripts.[2] Mr. Page appealed the Court's decision. On September 6, 2017, the Supreme Court affirmed the Court's decision. The Supreme Court issued its mandate on September 26, 2017.

         Sixth and Pending Motion for Postconviction Relief

         6. Before the Court is Mr. Page's Sixth Rule 61 Motion. Mr. Page, acting pro se, filed the Fifth Rule 61 Motion on January 25, 2018. In the Sixth Rule 61 Motion, Mr. Page claims, once again, that he is entitled to postconviction relief based on ineffective assistance of his appellate counsel.

         7. The basis for the present ineffective assistance of counsel claim once again stems from appellate counsels' response to Mr. Page's pro se motion to compel, which Mr. Page filed on April 13, 2016. In the motion, Mr. Page sought to compel his appellate counsel-James Liguori, Esquire and Gregory Morris, Esquire of the law firm of Liguori & Morris ("Liguori & Morris") and Joseph Lawless, Esquire-to produce Mr. Page's case file. By letter dated May 25, 2016, Liguori & Morris informed the Court that its office, which had acted as local counsel for Mr. Lawless, had provided the case file and all relevant documents in its possession to Mr. Page. However, Liguori & Morris did not have the trial transcripts in Mr. Page's case because the transcripts were forwarded to Mr. Lawless. Mr. Lawless no longer practices law, and despite Liguori & Morris' best efforts, it could not locate Mr. Lawless or the trial transcripts. Based upon this explanation, the Court denied the motion on September 15, 2016. The Fifth Rule 61 Motion asserting ineffective assistance of counsel against Liguori & Morris followed.

         8. On December 15, 2016, the Court directed Liguori & Morris to submit an affidavit in response to the Fifth Rule 61 Motion. On January 13, 2017, Liguori & Morris filed the Prior Counsel Affidavit, restating that it did not provide ineffective assistance of counsel because it had in fact requested and obtained trial transcripts.

         9. Mr. Page now contends that his appellate counsel's Prior Counsel Affidavit is factually incorrect. Mr. Page attaches documents that he contends demonstrates that his appellate counsel failed to request three (3) days of trial transcripts-May 5, 6, and 7, 2003. As support, Mr. Page states that "Exhibit B on page 17 (included)" provides that appellate counsel only requested the following-"All proceedings from February 16, ...

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