Submitted: February 5, 2018
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED
H. Sheridan, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Coleman, Howard R. Young Correctional Center, Wilmington,
Delaware, pro se.
KATHARINE L. MAYER, Commissioner
13th day of March, 2018, upon consideration of
Defendant's Motion for Postconviction Relief and the
record in this matter, the following is my Report and
FACTS AND PROCEDURAL HISTORY
October 29, 2016, Defendant was indicted on five charges
including Burglary Second Degree, Offensive Touching (two
counts), Non-Compliance with Bond Conditions and Endangering
the Welfare of a Child (hereinafter the "First S.C.
Case"). The charges related to an incident that
occurred at Defendant's ex-girlfriend's residence
whereby he obtained access and assaulted her and her
daughter. At the time of the offense there was a no-contact
order in place that had been issued by the Court of Common
Pleas (the "CCP Case"). When Defendant was charged
on the First S.C. Case, the Superior Court also issued a
no-contact order with respect to the then alleged victim, the
ex-girlfriend. While these matters were pending before the
Court, Defendant was indicted on one count of Non-Compliance
with Conditions of Bond (the "Second S.C. Case").
Specifically, it was alleged that in December of 2016
Defendant knowingly breached a material condition of release
by having contact with his ex-girlfriend after a no-contact
order had been entered.
April 2017, Defendant entered into a Plea Agreement and
agreed to plead guilty to the charges of Burglary Second
Degree, Offensive Touching, and two counts of Non Compliance
with Conditions of Bond. The Agreement was intended to
resolve the three aforementioned cases then pending against
Defendant. The Plea Agreement also included a no-contact
provision as well as other terms.
was sentenced on June 2, 2017, to a total of three (3) years
at Level V followed by decreasing levels of supervision. The
Sentencing Order included the charges from the First S.C.
Case and the Second S.C. Case and acknowledged that the
remaining charges in the CCP Case were to be nolle
prosequi and dismissed.
August 29, 2017, Defendant filed a pro se Motion for
Postconviction Relief captioned with Case No. 1701000036 (the
Second S.C. Case). Although the Motion addresses his entire
sentence/conviction, the only charge relating to the Second
S.C. Case was a charge of Non-Compliance with Conditions of
Bond, to which Defendant was sentenced to five (5) years at
Level V, suspended after 18 months for 1 year at Level III
Motion argues three grounds for relief: (1) a claim that his
attorney informed him that the State was only asking for 1
year, but the State asked for 3 years; (2) his belief that
counsel advised him his case would be heard in Mental Health
Court, but it was not; and (3) he was forced to take a plea
because his counsel would not "go to trial and fight for
[him]". The record was enlarged and a briefing schedule
was issued. Defendant's trial counsel submitted an
Affidavit in response to the allegations in the Motion,
the State filed a Response. The record is now complete and
the following is my Report and Recommendation that
Defendant's Motion should be DENIED.
OF DEFENDANT'S RULE 61 MOTION
considering the merits of the claims, the Court must first
determine whether there are any procedural bars to the
motion. This is Defendant's first motion for
postconviction relief and it was timely filed pursuant to
Superior Court Criminal Rule 61.
order to prevail on an ineffective assistance of counsel
claim, a defendant must show that his counsel's
representation fell below an objective standard of
reasonableness and the deficiencies in counsel's
representation caused the defendant actual
prejudice. When a defendant has pleaded guilty, he
must show that counsel's actions were so prejudicial that
there is a reasonable probability that, but for counsel's
errors, the defendant would not have pleaded guilty and would
have insisted on going to trial. Defendant must also overcome
a strong presumption that counsel's conduct was
reasonably professional under the
circumstances. Mere allegations of ineffectiveness will
not suffice, rather, a defendant must make and substantiate