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State v. McDougal

Superior Court of Delaware

March 16, 2018


          Submitted: January 24, 2018


          Andrew Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Patrick J. Collins, Esquire and Matthew C. Buckworth, Esquire, Collins & Associates, Attorneys for Defendant Andre McDougal


         This 16th day of March, 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:


         On November 18, 2010, Defendant Andre McDougal was observed by police engaging in a hand-to-hand drug transaction. Over 2.5 grams of heroin and a handgun were found near McDougal and he was charged with various drug and weapon crimes.

         At the time of the November 18, 2010 incident, McDougal was on probation for a manslaughter conviction. This incident led to a violation of that probation ("VOP"). The VOP hearing was held first. Following the VOP hearing, McDougal was found to have committed a VOP as a result of this incident and he was sentenced to 15 years of incarceration.

         Having already secured a 15-year prison term on the VOP, the State offered McDougal a plea deal with a three-year prison sentence recommendation, which the State later lowered to a two-year sentence recommendation.

         Yet despite McDougal's counsel's warning that McDougal could be sentenced as a habitual offender and facing life sentences if he was convicted at trial of any of the felony charges, and despite counsel's urging to accept the plea deal, McDougal continued to refuse to accept the plea offer and proceeded to trial.

         The jury trial consisted of two witnesses, both police officers. They testified as to the drug transaction that was observed and the subsequent search of the area that led to the discovery of the heroin and firearm. Following the trial, McDougal was convicted of trafficking in heroin and possession with intention to deliver, and one weapon charge. McDougal was acquitted of the additional weapon charges.

         The State, which was satisfied pre-trial with a 17-18 prison term for the incident at issue (15 years on the VOP and an additional 2-3 years in this case), following trial, moved to have McDougal declared a habitual offender on all three of the convictions and as a result he was sentenced to two life sentences on the drug convictions plus an additional 5 years on the weapon conviction.

         McDougal is now serving a total of two life sentences plus 20 years (15 years on the VOP and 5 additional years on the underlying weapon conviction), rather than a 17-18 prison term he would be serving had he accepted the plea offer.

         Before this Court in this Rule 61 motion are three claims of counsel ineffectiveness. The first claim is that counsel was ineffective during plea negotiations. The second claim is that counsel was ineffective for stipulating at trial that McDougal was a person prohibited. The third claim is that counsel was ineffective for not seeking merger of McDougal's life sentences at sentencing.

         Despite the severity of the outcome of this case, the claims that McDougal raises in this motion are without merit. As to the first claim, McDougal was apprised of all relevant issues and potential sentences he was facing during plea negotiations and still chose to reject the plea. As to the second claim, under the facts and circumstances of this case, McDougal has not established that he suffered actual prejudice as a result of his counsel stipulating at trial that McDougal was a person prohibited. Finally, as to the third claim, counsel was not ineffective for not seeking merger of McDougal's life sentences at sentencing.

         Consequently, this court is unable to provide relief, through this motion, for the outcome that resulted in this case.


         Defendant Andre McDougal was arrested on November 18, 2010. At the time of his arrest, he was on probation stemming from a manslaughter conviction.[1] As a result of this incident, McDougal was charged with trafficking in heroin, possession with intent to deliver a narcotic schedule I controlled substance ("PWITD"), possession of a firearm during the commission of a felony ("PFDCF"), possession of a deadly weapon by a person prohibited ("PDWBPP"), and receiving a stolen firearm.

         These charges along with a missed curfew formed the basis for a violation of probation ("VOP") in the manslaughter conviction. The VOP hearing on the manslaughter conviction was held on March 2, 2011, and following a contested VOP hearing, McDougal was found to have committed a VOP and was re-sentenced to 15 years of unsuspended Level V time, followed by probation.[2]

         At the VOP hearing, the court noted on the record that McDougal would be eligible to be sentenced as a habitual offender, if convicted of the subject charges.[3] The VOP finding was affirmed by the Delaware Supreme Court on appeal.[4] Thereafter, Defendant filed a Rule 61 motion in the manslaughter case on the VOP ruling. The Rule 61 motion on the VOP was denied.[5] McDougal also filed a federal petition for a writ of habeas corpus as to the VOP sentence, which was also denied.[6]

         After being sentenced to 15 years of unsuspended Level V time on the VOP for the manslaughter conviction stemming primarily from this incident at issue, a case review was held on these charges on June 13, 2011. At the time of the case review, McDougal was represented by Timothy J. Weiler, Esquire, from the Public Defender's office. Mr. Weiler was the same attorney who represented McDougal at his VOP hearing.

         At the case review, the State offered McDougal a three year plea deal.[7] The State offered McDougal a plea to Trafficking Heroin, with a recommended sentence of ten years at Level V, suspended after three years.[8] McDougal rejected this plea offer.

         By letter dated June 14, 2011, McDougal's counsel urged McDougal to reconsider his rejection of the plea offer.[9] In a follow-up letter that same date, counsel advised McDougal that he could be facing life sentences as a habitual offender if convicted of any of the felony charges and that he was facing mandatory life sentences if convicted of the trafficking and/or possession with intent to deliver charges. Counsel enclosed a copy of the habitual offender statute with his letter advising McDougal to accept the plea.[10]

         After the case review, Mr. Weiler filed a request to discontinue the public defender's representation of McDougal due to a conflict of interest.[11] Thereafter, conflict counsel, Christopher D. Tease, Esquire, was appointed on or about June 28, 2011, to represent McDougal.[12]

         A case review was scheduled on August 29, 2011. The prosecutor did not appear and McDougal was given a plea window until September 12, 2011.[13] At the case review, Mr. Tease stated: "Mr. Vella was not here today, could I have a plea window? He is looking at, if he gets convicted of a firearm, 25 years in jail."[14]

         On the eve of trial, on September 12, 2011, McDougal was offered a second plea to ". . . something in the range of two years." McDougal rejected this plea offer.[15]McDougal's counsel later explained to the court that McDougal was under the mistaken impression that he needed to prevail on the subject charges in order to "get out from under" the VOP sentence. McDougal's counsel represented to the court that both he and the prosecutor spoke to McDougal about McDougal's mistaken impression and tried to persuade him to take the plea.[16]

         This action was tried before a Superior Court jury on September 13-14, 2011. The trial consisted of two witnesses, both police officers, who testified about the hand-to-hand drug transaction and the subsequent search of the premises near McDougal. On September 14, 2011, McDougal was convicted of Trafficking in Heroin, Possession with Intent to Deliver Heroin and PFBPP. McDougal was found not guilty of PFDCF and Receiving a Stolen Firearm.

         Prior to sentencing, the State moved to declare McDougal a habitual offender.[17]The State sought to declare McDougal a habitual offender under 11 Del. C. § 4214(b) on both of the drug convictions, and under 11 Del.C. § 4214(a) on the weapon conviction.

         On December 15, 2011, at sentencing, McDougal was declared a habitual offender pursuant to 11 Del.C. § 4214(b) on the two drug convictions and was sentenced to two life sentences and was sentenced as a habitual offender pursuant to 11 Del. C. § 4214(a) on the weapon conviction to five years at Level V.[18]

         McDougal filed a direct appeal to the Delaware Supreme Court. On September 5, 2012, the Delaware Supreme Court affirmed the judgment of the Superior Court.[19]

         McDougal filed a timely motion for postconviction relief on July 10, 2013. Rule 61 counsel was appointed and given leave to amend Defendant's pro se motion. Rule 61 counsel filed McDougal's amended Rule 61 motion on July 1, 2014. Because McDougal's amended motion raised claims relating to alleged improprieties of the Office of the Chief Medical Examiner ("OCME"), the Rule 61 motion was stayed for some time to allow the handling of those issues to be sorted out by the Superior Court.[20] The stay has since been lifted.[21]

         There was further delay while the parties awaited the Affidavit of Conflict Counsel who was no longer practicing law and was not responsive to the Court's follow-up efforts to obtain an Affidavit. Eventually a briefing schedule was entered bypassing the Affidavit of conflict counsel.[22] Mr. Weiler, the Public Defender who represented McDougal at his VOP hearing and at his first case review on this case did provide an Affidavit in this Rule 61 motion.[23]

         After briefing was completed, McDougal filed a motion pro se to add two new claims.[24] McDougal's counsel also filed a motion to add additional claims.[25] Since McDougal was represented by Rule 61 counsel, the Court denied McDougal's pro se motion to raise additional claims and granted McDougal's counsel's motion to raise additional claims.[26] McDougal's Rule 61 counsel was instructed to consider the additional claims that McDougal sought to raise in his pro se submission, and to include in a second amended Rule 61 motion all the Rule 61 claims that counsel believed were meritorious and wanted the court to consider.[27]

         On March 28, 2017, McDougal's counsel filed his Second Amended Motion for Postconviction Relief on McDougal's behalf. On May 25, 2017, the State filed its response to the Second Amended Motion, and on June 29, 2017, McDougal's counsel filed a reply thereto.

         In McDougal's reply, filed by Rule 61 counsel on McDougal's behalf, counsel requested that the drugs at issue be retested to confirm authenticity. Counsel noted that subsequent case law on the OCME claims has caused counsel to reassess its position as to these claims. Counsel represented that if the drugs tested positive for heroin on the retest, McDougal's Rule 61 claims related to the improprieties of the OCME would be withdrawn.[28]

         Because McDougal had been sentenced as a habitual offender to two life sentences stemming from the drugs at issue, the Court ordered the drugs retested, with the understanding that if the drugs tested positive for heroin, McDougal's claims as to any alleged improprieties of the OCME will be deemed withdrawn in their entirety.[29]

         On January 24, 2018, the State advised the court that the retesting was completed. On the retest, the drugs tested positive for heroin.[30]

         This Rule 61 motion is now ripe for consideration.


         The facts of the incident at issue were set forth by the Delaware Supreme Court in its decision on McDougal's direct appeal.[31]

         As stated by the Delaware Supreme Court, on November 18, 2010, at approximately 10:20 a.m., a detective from the City of Wilmington Police Department's Operation Safe Streets was conducting surveillance in the 2300 block of Carter Street in Wilmington, Delaware.[32] The area was known by police to be a high crime area with drug trafficking activity.[33] The detective conducted his surveillance with binoculars from a nearby rooftop. The day was clear and the detective had an unobstructed view of the target area.[34]

         At approximately 10:35 a.m., the detective's attention was drawn to an African American man, wearing a black leather jacket, who entered the 2300 block of Carter Street from the north. The man, later identified as McDougal, then entered the alleyway on the east side of Carter Street next to a vacant row house at number 2314. After a few seconds, McDougal walked onto the porch at number 2312. It is undisputed that McDougal neither owned nor resided at that property. After a few more seconds, McDougal sat down on the front steps. Another man then entered the porch and stayed a couple of minutes.[35]

         Thereafter, two other African American men approached Carter Street from the north. The detective observed McDougal walk back to the alleyway and then quickly leave the alleyway. Thereafter, the detective observed McDougal engage in some kind of interchange with one of the men, who later was identified as James Hamilton. The detective testified that it appeared to him that Hamilton and McDougal engaged in what the police term a "hand-to-hand" transaction involving the exchange of drugs and money.[36]

         At that point, additional law enforcement officers were called in to assist. A police sergeant stopped Hamilton and patted him down. While the officer was speaking with Hamilton, four baggies of heroin, each containing a blue wax paper baggie stamped "Jaguar, " fell from Hamilton's pant leg onto the ground.[37]

         The police searched the porch area of 2312 Carter Street.[38] Under a hat that was sitting on a chair they found a handgun and one hundred thirty baggies, each containing a blue wax paper baggie of heroin with the name "Jaguar" stamped on it. The heroin was packaged as ten bundles of thirteen baggies each. The police detective testified that the heroin, which was later determined to weigh 2.71 grams, had a street value of approximately $600.[39]

         At the time the handgun was seized, it was inoperable. No fingerprint or DNA testing was conducted on the weapon, although the serial number indicated that it had been stolen outside the State of Delaware.[40]


         McDougal, through Rule 61 counsel, raised five claims for consideration, but has withdrawn two of those claims, those claims pertaining to the alleged improprieties of the OCME, leaving three claims remaining.

         As previously stated, McDougal's Rule 61 counsel represented to the court that if the drugs were retested, and came back positive for heroin, McDougal's OCME claims would be deemed withdrawn. The drugs were retested, and they came back positive for heroin. Consequently, McDougal's OCME claims are hereby deemed withdrawn.

         Three claims remain pending in the subject Rule 61 motion. The three claims are as follows:

1) trial counsel was ineffective for stipulating that McDougal was a Person Prohibited;
2)counsel was ineffective during plea negotiations; and
3)counsel was ineffective for failing to object to McDougal's sentence to two life sentences for offenses that should have merged at the time of sentencing.

         Each of these claims will be addressed in turn.

         Claim One: Counsel's Stipulation to McDougars Person Prohihited Status

         At trial, McDougal stipulated, through counsel, that he was not permitted to possess a firearm. The stipulation did not include the reason that McDougal was prohibited.

         To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-prong standard of Strickland v. Washington.[41] This test requires that defendant prove that trial counsel's performance was objectively unreasonable and that the defendant was prejudiced as a result.[42]

         Under the first prong, judicial scrutiny is highly deferential. Courts must ignore the distorting effects of hindsight and proceed with a strong presumption that counsel's conduct was reasonable.[43] The Strickland Court explained that a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged ...

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