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State v. Pastro

Superior Court of Delaware

April 17, 2018

STATE OF DELAWARE, Plaintiff,
v.
JERALD A. PASTRO, JR., Defendant.

          Date submitted: January 19, 2018

          Sonia Augusthy, Esquire, Deputy Attorney General, Delaware Department of Justice, Attorney for the State.

          Jerald A. Pastro, Jr., pro se, Defendant.

          COMMISSIONER'S REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR APPOINTMENT OF COUNSEL AND MOTION FOR POSTCONVICTION RELIEF

          BRADLEY V. MANNING COMMISSIONER

         This 17th day of April 2018, upon consideration of defendant Jerald A. Pastro Jr.'s Motion for Postconviction Relief ("Motion"), and Motion for Appointment of Counsel, I find and recommend the following:

         Procedural History

         Mr. Pastro pled guilty to Assault Second Degree, Burglary First Degree, and Possession of a Deadly Weapon During the Commission of a Felony on July 7, 2016. Following a pre-sentence investigation, Mr. Pasto was sentenced on September 16, 2016, to eight years of unsuspended Level Five time, followed by decreasing levels of probation. Mr. Pastro did not appeal his conviction or sentence to the Delaware Supreme Court. Mr. Pastro did, however, file a motion for sentence reduction/modification on October 7, 2016. That motion was denied by the Honorable Richard R. Cooch on October 12, 2016.[1]Mr. Pastro subsequently filed two additional motions for sentence modification which were also denied on January 19, 2017 and June 14, 2017.

         On August 30, 2017, Mr. Pastro filed the instant Motion pursuant to Superior Court Criminal Rule 61. The Motion was subsequently referred to the undersigned commissioner and a briefing schedule was issued on September 13, 2017. Trial Counsel filed an Affidavit responding to particular claims made by Mr. Pastro on August 24, 2017.[2] The State filed its Response on December 13, 2017. Upon review of the various filings in this matter I deemed it unnecessary to hold an evidentiary hearing based on the nature of Mr. Pastro's allegations. Finally, I requested and reviewed the Presentence Report.

         Mr. Pastro's claims for postconviction relief, quoted verbatim, are as follows:

Ground One: Ineffective Counsel-failure to properly investigate defendant's case. Defense Counsel repeatedly told me wrong charges and minimum mandatory time during one-on-one conversations and at my sentencing hearing, and at the time of me signing the guilty plea gave me incorrect information about Level Five time.
Ground Two: Ineffective Counsel-failure to properly investigate mitigating factors. During sentencing hearing, and one-on-one conversations I was repeatedly made to look as if I was someone who failed school, and was slow mentally, yet I graduated high school 6 months before, proving he had not bothered to look into my cases mitigating factors, and further more causing prejudice towards me in sentencing, and ruining all my family support systems with untrue facts.
Ground Three: Coerced into plea. I was told I would receive 4-5 years if I accept the plea offer and that is I didn't I would receive a minimum mandatory of 5 years, and that I would lose trial, when my minimum mandatory was 4 years, not 5. Causing me to enter plea unknowingly and involuntarily.
Ground Four: Ineffective Counsel-failure to comply with requests of defendant. I asked my attorney to place a motion for suppression in to suppress my interrogation statement due to the video of my interrogation showing me in a intoxicated state of mind, and he refused to do so which if it was accepted would have changed my decision to go to trial.
Ground Five: Ineffective Counsel-failure to investigate mitigating factors. The Defense Counsel not only refused to looking into past placements, and psychological evaluations from said placements (Rockford, Brentford RTC, Mount Manor, Aquila, Crossroads and Harmonious Minds) but having legal reason to apply for Mental Health Court, refused, saying I'll have a mental health judge on ...

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