Submitted: January 24, 2018
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
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
16th day of March, 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court as follows:
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.
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.
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.
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.
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.
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.
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.
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.
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.
this court is unable to provide relief, through this motion,
for the outcome that resulted in this case.
AND PROCEDURAL HISTORY
Andre McDougal was arrested on November 18, 2010. At the time
of his arrest, he was on probation stemming from a
manslaughter conviction. 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.
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.
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. The VOP finding was affirmed
by the Delaware Supreme Court on appeal. Thereafter,
Defendant filed a Rule 61 motion in the manslaughter case on
the VOP ruling. The Rule 61 motion on the VOP was
denied. McDougal also filed a federal petition for
a writ of habeas corpus as to the VOP sentence, which was
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.
case review, the State offered McDougal a three year plea
deal. The State offered McDougal a plea to
Trafficking Heroin, with a recommended sentence of ten years
at Level V, suspended after three years. McDougal rejected
this plea offer.
letter dated June 14, 2011, McDougal's counsel urged
McDougal to reconsider his rejection of the plea
offer. 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.
the case review, Mr. Weiler filed a request to discontinue
the public defender's representation of McDougal due to a
conflict of interest. Thereafter, conflict counsel,
Christopher D. Tease, Esquire, was appointed on or about June
28, 2011, to represent McDougal.
review was scheduled on August 29, 2011. The prosecutor did
not appear and McDougal was given a plea window until
September 12, 2011. 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."
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.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.
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.
to sentencing, the State moved to declare McDougal a habitual
offender.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.
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.
filed a direct appeal to the Delaware Supreme Court. On
September 5, 2012, the Delaware Supreme Court affirmed the
judgment of the Superior Court.
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. The stay has since been
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. 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.
briefing was completed, McDougal filed a motion pro
se to add two new claims. McDougal's counsel also
filed a motion to add additional claims. 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. 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.
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.
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.
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.
January 24, 2018, the State advised the court that the
retesting was completed. On the retest, the drugs tested
positive for heroin.
Rule 61 motion is now ripe for consideration.
facts of the incident at issue were set forth by the Delaware
Supreme Court in its decision on McDougal's direct
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. The area was known by police to be a
high crime area with drug trafficking activity. 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.
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.
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.
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.
police searched the porch area of 2312 Carter
Street. 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
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.
SUBJECT RULE 61 MOTION
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.
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.
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.
these claims will be addressed in turn.
One: Counsel's Stipulation to McDougars Person Prohihited
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.
prevail on a claim of ineffective assistance of counsel, the
defendant must satisfy the two-prong standard of
Strickland v. Washington. This test requires that
defendant prove that trial counsel's performance was
objectively unreasonable and that the defendant was
prejudiced as a result.
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. The Strickland Court explained
that a court deciding an actual ineffectiveness claim must
judge the reasonableness of counsel's challenged ...