Submitted: April 2, 2018
Periann Doko, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
T. Loper, James T. Vaughn Correctional Center, pro se.
Timothy J. Weiler, Esquire.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
M. Parker Commissioner.
7th day of May 2018, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
AND PROCEDURAL HISTORY
September 2016, a Superior Court jury found Defendant Unique
T. Loper guilty of one count each of Carrying a Concealed
Deadly Weapon ("CCDW"), Possession of a Firearm by
a Person Prohibited, and Possession of Ammunition by a Person
Prohibited. The Superior Court declared Loper to be a
habitual offender for the CCDW conviction. Loper was
sentenced to a total period of thirty-one years at Level V
incarceration, to be suspended after serving eighteen years
in prison, for decreasing levels of supervision.
Loper filed a direct appeal to the Delaware Supreme Court. On
August 18, 2017, the Delaware Supreme Court determined that
the appeal was without merit and affirmed the judgment of the
noted by the Delaware Supreme Court on direct appeal, the
trial record fairly reflects that, on January 31, 2016, a
fight broke out at Famous Tim's Tavern in Wilmington,
Delaware. Ryan Dill, a bartender who was working that evening
testified that he noticed several groups of individuals
arguing near the bar. The argument escalated into a fist
saw a short, black man attempt to pull something from his
waistband. Several bar patrons yelled that the man had a gun.
As the fight moved to the bar entrance, Dill saw the man
extend his arm with a gun in his hand. Other patrons wrestled
the man with the gun to the ground, punching and kicking him.
Someone pulled a fire extinguisher from the wall and struck
the man with it. Someone else dragged the man, who appeared
to be unconscious, outside the door of the bar. Dill then
heard a single gunshot.
Wilmington police officers arrived on the scene. A single,
spent .40 caliber shell casing was found outside the front
door of the bar.
Several days after the incident, police collected four blood
samples from inside the bar's entrance. DNA testing
positively matched one of the samples to Loper. Loper later
gave a statement to police, which was played for the jury at
trial, admitting that he brought a .40 caliber gun to the
bar. Loper did not testify or present any other evidence at
trial. The jury convicted him of all counts.
RULE 61 MOTION
November 29, 2017, Loper filed the subject motion for
postconviction relief. Loper raised three claims of
ineffective assistance of counsel: 1) that his counsel was
ineffective for never meeting with Loper to "make a
defense" and "put on a defense" at trial; 2)
that his counsel was ineffective for not filing a motion to
suppress his confessions; and 3) that his counsel was
ineffective for not filing a motion to suppress the evidence.
Before making a recommendation, the record was enlarged and
Loper's counsel was directed to submit an Affidavit
responding to Loper's ineffective assistance of counsel
claims. Loper was afforded an opportunity to submit a reply
Loper filed a letter with the court on April 3, 2018, the due
date for his reply, alleging that he was improperly declared
a habitual offender because all three of the felonies upon
which his predicate felonies were based were not violent
felonies. Loper's letter will be treated as his
reply and his claim expressed in that letter will be
order to prevail on an ineffective assistance of counsel
claim, Defendant must meet the two-pronged
Strickland test by showing that: (1) counsel
performed at a level "below an objective standard of
reasonableness" and that, (2) the deficient performance
prejudiced the defense. The first prong requires the defendant
to show by a preponderance of the evidence that defense
counsel was not reasonably competent, while the second prong
requires him to show that there is a reasonable probability
that, but for defense counsel's unprofessional errors,
the outcome of the proceedings would have been
Mere allegations of ineffectiveness will not suffice;
instead, a defendant must make and substantiate concrete
allegations of actual prejudice. Although not
insurmountable, the Strickland standard is highly
demanding and leads to a strong presumption that
counsel's conduct fell within a wide range of reasonable
professional assistance.Moreover, there is a strong
presumption that defense counsel's conduct constituted
sound trial strategy.
Loper's Rule 61 postconviction relief motion, he contends
that his trial counsel was ineffective for failing to meet
with Loper to "make a defense" and then to
"put on a defense" at trial. Loper's trial
counsel, in his Affidavit in response to Loper's Rule 61
motion, advises that, prior to trial, Loper was provided with
all discovery materials supplied by the State. There were
two case reviews, one on May 16, 2016 and another on August
22, 2016. At the August 22, 2016 Case Review, Loper rejected
the State's plea offer. It is counsel's practice that
at any plea rejection event, and not for the first time,
counsel would have discussed the State's evidence likely
to be presented at trial, any possible ...