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State v. Loper

Superior Court of Delaware

May 7, 2018

STATE OF DELAWARE, Plaintiff,
v.
UNIQUE T. LOPER, Defendant.

          Submitted: April 2, 2018

          Periann Doko, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Unique 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 DENIED

          Lynne M. Parker Commissioner.

         This 7th day of May 2018, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND AND PROCEDURAL HISTORY

         1. In 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.

         2. 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 Superior Court.[1]

         FACTS

         3. As 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 fight.[2]

         4. Dill 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.[3]

         5. Wilmington police officers arrived on the scene. A single, spent .40 caliber shell casing was found outside the front door of the bar.[4]

         6. 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.[5]

         DEFENDANT'S RULE 61 MOTION

         7. On 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.

         8. 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 thereto.[6]

         9. 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.[7] Loper's letter will be treated as his reply and his claim expressed in that letter will be addressed herein.

         10. In 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.[8] 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 different.[9]

         11. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice.[10] 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.[11]Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.[12]

         12. In 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.[13] 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 ...


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