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State v. Capers

Superior Court of Delaware

April 4, 2018

STATE OF DELAWARE
v.
DEREK CAPERS, Defendant

          Submitted: January 22, 2018

         On Defendant's Motion for Postconviction Relief. DENIED as MOOT.

          Katherine C. Butler, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Cathy A. Johnson, Esquire, Assistant Public Defender, Office of Defense Services, Wilmington, Delaware, Attorney for Defendant.

          ORDER

          COOCH, R.J.

         This 4th day of April 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         1. 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.[1] 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.

         2. 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.

         3. On 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.

         4. Defendant's trial counsel, Cathy A. Johnson, Esquire, filed her affidavit ("Defense Counsel Affidavit") on December 12, 2017, which is set forth below in toto:

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 Constitutions." Denied.
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 additional response.
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." Denied.
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. ...

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