Submitted: January 22, 2018
Defendant's Motion for Postconviction Relief. DENIED as
Katherine C. Butler, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
A. Johnson, Esquire, Assistant Public Defender, Office of
Defense Services, Wilmington, Delaware, Attorney for
4th day of April 2018, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
Defendant was indicted on July 21, 2014 on one count each of
Possession of a Firearm by a Person Prohibited
("PFBPP"), Possession of Ammunition by a Person
Prohibited, Carrying a Concealed Deadly Weapon
("CCDW"), and Possession of Marijuana. He pled
guilty to PFBPP and CCDW. He subsequently moved to withdraw
his guilty plea as to the PFBPP charge, which this Court
granted on November 17, 2015. A jury subsequently found
Defendant guilty of all counts on January 26, 2016. This
Court sentenced Defendant on October 7, 2016 to the minimum
mandatory sentence of ten years at Level V incarceration with
decreasing levels to follow. Defendant did not file an appeal
with the Delaware Supreme Court within the 30-day window
pursuant to 10 Del. C. § 147.
Defendant filed this pro se Motion for
Postconviction Relief pursuant to Delaware Superior Court
Criminal Rule 61 on October 12, 2017-more than a year
following his sentencing.
November 15, 2017, this Court requested from prior counsel
for Defendant an affidavit addressing the issue of
Defendant's assertion in his Rule 61 motion that his
trial counsel failed to file a Notice of Appeal.
Defendant's trial counsel, Cathy A. Johnson, Esquire,
filed her affidavit ("Defense Counsel Affidavit")
on December 12, 2017, which is set forth below in
As to Ground One: "Trial counsel failed to file a timely
Notice of Appeal after defendant was convicted at trial.
Counsel of record was under obligation pursuant to Supreme
Court Rule 26(a) to file a Notice of Appeal. Counsel failed
to do so violating Defendant's United States and Delaware
Counsel met with [Defendant] on October 6, 2016 regarding his
sentencing. During that meeting, counsel advised [Defendant]
of his right to appeal and that he had thirty days from the
date of his sentencing to appeal. Counsel again advised
[Defendant] of his right to appeal on the day of sentencing.
On November 22, 2016, counsel visited [Defendant] after
receiving a call from [Defendant's] friend. On that date,
[Defendant] advised counsel that he wanted to appeal his
sentence. Counsel advised that he was beyond the allowable
time to appeal. I inquired why [Defendant] had not advised me
earlier that he wanted an appeal because I previously
explained his appeal rights on at least two occasion.
[Defendant] advised that he tried to reach me by phone. I
advised [Defendant] that I had no phone messages from him and
did not receive a letter from him requesting the appeal.
[Defendant] advised that there was something wrong with the
prison phones however, I advised that I had received calls
from other clients. In addition, I advised [Defendant] that
he could have written me a letter. [Defendant] had no
As to Ground Three: "Counsel was ineffective for failure
to file a motion to suppress the reasonable suspicion,
consent and involuntary statement, it is submitted that had
[Defendant's] former attorney filed a motion to suppress
evidence that challenged the reasonable suspicion, the
invalid consent, and the statements that derived from the
fruits of this poisonous tree, it is highly likely that the
outcome of the instant case would have been different."
Counsel of record at the time motions would have been filed
was Andrew Rosen. However upon review of the contacts that
Mr. Rosen had with [Defendant] it indicates that on July 7,
2015 Mr. Rosen discussed the evidence and facts of the case
with [Defendant]. Mr. Rosen indicated that the fact pattern
presented a pretty solid case for the prosecution for
constructive possession. At some point, [Defendant] chose to
plead guilty and entered a plea of guilty on March 31, 2015
thereby negating any need for a motion to suppress.
[Defendant] subsequently withdrew his plea of guilty due to
the classification of his prior drug offense as a violent
felony which subjected him to a higher penalty. In November
2015, undersigned counsel took over this case from Mr. Rosen.
Counsel reviewed the case with [Defendant] in preparation for
trial. [Defendant] indicated that his family was getting
private counsel for him. ...