for Kent County RK12-12-0300-01, PFBPP PABPP (F)
Defendant's Motion for Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
O. Graham, Esquire, Deputy Attorney General, Department of
Justice, for the State of Delaware.
Natalie S. Woloshin, Esquire, Woloshin, Lynch &
Associates, P.A., Wilmington, Delaware for Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION
M. Freud, Commissioner.
defendant, Orlando Ingram (Ingram), was found guilty following a
jury trial on May 6, 2014 of one count of Possession of a
Firearm by a Person Prohibited ("PFBPP"), 11
Del. C. § 1448. On August 13, 2014, at
sentencing Ingram was declared a habitual offender pursuant
to 11 Del. C. § 4214(a) and received a total
sentence of twenty-five years Level V incarceration (five of
which were minimum mandatory) followed by one year probation.
timely Notice of Appeal to the Delaware Supreme Court was
filed. Ingram's counsel filed a brief and motion to
withdraw pursuant to Supreme Court Rule 26(c). In the motion
to withdraw, appellate counsel represented that he conducted
a conscientious review of the record and concluded that no
meritorious issues existed. By letter, counsel informed
Ingram of the provisions of Rule 26(c) and attached a copy of
the motion to withdraw and accompanying brief. Ingram was
informed of his right to supplement his attorney's
presentation. Ingram, pro se, raised three issues
for appeal for the Supreme Court to consider, which the
Supreme Court classified as follows:
(7) In his first point on appeal, Ingram claims that his 2014
conviction and sentencing for PFBPP subjected him to double
jeopardy because his 2013 conviction and sentencing for
Possession of a Firearm During the Commission of a Felony
("PFDCF").'5 Ingram's claim is without
(10) In his second point on appeal, Ingram contends that
there was insufficient evidence for the jury to find him
guilty of PFBPP. Ingram made the same claim in a motion for
judgment of acquittal, which was denied at trial. When
denying the motion, the Superior Court found that:
The evidence that's been submitted by the State indicates
that: Upon entry into a residence where Mr. Ingram was
occupying, he was subdued by officers involved here. And
there has been evidence to indicate that he made multiple
attempts to reach for an item or object under a couch
that's been later identified as a handgun.'9
(13) Having reviewed the trial court record, we conclude that
the evidence was sufficient to support the jury's finding
that Ingram was guilty of PFBPP. Two police officers
testified that, when struggling with them in the living room
of his sister's apartment on September 27, Ingram made
repeated attempts to reach under the couch in an area where
the police later discovered a loaded handgun.
(14) In his third point on appeal, Ingram contends that the
evidence seized when he was arrested on September 27 should
have been suppressed because his sister did not consent to
the search of her apartment. Ingram concedes that he
unsuccessfully raised the same claim during his 2013 trial
and in his appeal from those convictions.
FN5 The Double Jeopardy Clauses of the United States and
Delaware Constitutions protect a criminal defendant against
multiple punishments or successive prosecutions for the same
offense. U.S. Const, amend. V; Del. Const. Art. 1, § 8.
See Evans v. State, 445 A.2. 932, 933 (Del. 1982).
FN9 Trial Tr. At B-59 (May 6, 2014).
Supreme Court granted the State's motion to affirm as to
all of Ingram's claims. Next, pro se, Ingram
filed a Motion for Postconviction Relief pursuant to Superior
Court Criminal Rule 61 and a Motion for Appointment of
Counsel which the Court granted. Subsequently, Natalie S.
Woloshin, Esquire ("Appointed Counsel") was
appointed to represent Ingram in his motion. She filed an
amended motion for Postconviction relief alleging ineffective
assistance of counsel on April 17, 2017 and requested an
evidentiary hearing. My review of the facts and the law lead
me to conclude that an evidentiary hearing is unnecessary in
this case. Ingram's Trial Counsel and the State responded
to the amended motion for postconviction relief and Appointed
Counsel did not file a response.
following is a summary of the facts as noted by the Delaware
Supreme Court in its opinion:
(1) On September 27, 2012, Dover police arrested the
appellant, Orlando Ingram, in the living room of his
sister's apartment in Dover, Delaware. The police had a
warrant for Ingram's arrest because he was a suspect in
the September 4 robbery of a Family dollar store in Dover.
Ingram put up a fight when the police entered the apartment
to arrest him. After Ingram was subdued and taken into
custody, Ingram's sister gave the police written consent
to search the apartment. During the search, the police
discovered a loaded handgun under the living room couch.
(2) On December 3, 2012, Ingram was indicted on multiple
offenses in connection with various robberies and attempted
robberies in the Dover area in August and September 2012,
including offenses arising from the September 4 robbery and
Ingram's September 27 arrest. After a jury trial in
November 2013, Ingram was convicted as charged of the
September 4 robbery and September 27 arrest-related offenses,
except for two counts of Possession of a Firearm by a Person
Prohibited ("PFBPP"), which were severed before
trial. By order dated December 30, 2014, this Court affirmed
Ingram's November 2013 convictions.FN1
(3)On May 5, 2014, Ingram went to trial on the two counts of
PFBPP. One count, which was charged in connection with
Ingram's September 27 arrest, was tried before a jury.
The other count, which was charged in connection with the
September 4 robbery, was tried before the trial judge but
then nolle prossed. FN2
(4) After a two-day trial, the jury found Ingram guilty of
PFBPP. On August 13, 2014, the Superior Court declared Ingram
a habitual offender and sentenced him to twenty-five years
mandatory at Level V incarceration followed by one year at
Level III probation. This is Ingram's direct
FN1 See Ingram v. State, 2014 WL 7465977 (Del. Dec.
30, 2014)(affirming the Superior Court's judgment of
convictions in State v. Ingram, Cr. ID No.
1209003136C)). The Court has taken judicial notice of the
FN2 See docket at 5, State v. Ingram, Cr. ID No.
1209003136E (May 7, 2014). The Court has taken judicial
notice of the proceedings.
following is the relevant direct testimony from Ingram's
trial of Detective Christopher Bumgarner the first police
officer to enter the Ingram's sister's apartment:
Q: When you made entry can you describe what happened?
A. Yes. When I made entry - it was an odd apartment in that
-the front door opens, and it opens into a hallway. The
hallway can go right or left. To the left was a kitchen, to
the right was a living room. But when the door opens,
it's blocked. The only way to go right, because of the
swinging door, is to actually close the door behind you and
then go right into the living room.
We knew that the subject to be arrested was inside the living
room. So as I entered, I actually had to close the door,
leaving the rest of the team of police officers behind me,
and go right into the living room by myself.
Q. What are you wearing when you make entry?
A. I was wearing - it was black tactical gear. So it's
black BDU pants; a black tactical vest that has, in white
lettering across it, "police" on the front and
"police" on the back I had my service pistol, and
what we call a gun belt. I also had a radio. And due to the
nature of the operation, I also had a long gun, which is a
rifle, a tactical rifle.
Q. Once you made entry, describe what you observed.
A. As soon as I made entry, I had to close that door behind
me. When I closed the door behind me, the defendant in this
matter, Orlando Ingram, was standing there; and that was the
individual that we had the arrest warrant for.
He began to turn towards me, saw me, and yelled. When he did
that, my weapon was up. I yelled "police." He kind
of let out kind of like a yell/scream-type thing, and his
hands went for the front of my barrel of my rifle. When he
did that, I instinctively pushed against him driving the
barrel into him knocking him over.
At that point, he was then on the ground and on his back
looking up at me as I was giving him commands: show me your
hands; show me our hands. He started using his feet to scoot
his back across the floor towards the couch that was behind
him. And as he was doing this, he was reaching his right hand
to try to get under that couch.
When I recognized that he was trying to get his right hand
under the couch, I became concerned for my safety that he was
possibly grabbing a weapon of some sort. I kicked him. I
ordered him to show me his hands. He brought his hands back
down and, then, started diving his hands underneath the couch
I kicked him again; the same thing: show me your hands. He
would look at me and dive his hands underneath the couch. He
was actually almost rolling onto his stomach to get
underneath the couch, and his hand was disappearing under the
couch. I would say this happened about three times, I
believe, before the rest of the officers were able to get in
the house. And to my memory, it seems like just multiple
officers ended up in that house at the same time. And they
dog piled - all of them jumped onto him to arrest him.
I couldn't get on the ground with him because I had this
rifle, it just isn't practical. I'm trying to give
him commands. They all just onto him and he, again, dives his
hand underneath that couch and they start fighting with him
to get his hands back.
At this point, there are multiple officers on him trying to
get him into custody and trying to secure his hands that kept
going underneath this couch.
I then realized that there was nobody watching us and
didn't know if there was somebody else in the house. And
I turned around and started looking down the hall where
somebody could potentially come. Another officer teamed up
with me and we started clearing the house, checking the
house, making sure there was nobody else that was a threat to
the house. By the time I came back, that group of officers
had him in cuffs and were taking him outside.
Q. Do you see that individual in the courtroom today?
A. Yes, I do,
A. He is the defendant in the blue and black checkered shirt
seated next to counsel.
Q. Now, once you switched your attention to clear the rest of
the building, and come back to the living room, did you have
occasion to be involved in checking for any evidence or
anything in that residence?
A. Yes. When I came back to the living room, they had him in
handcuffs, they were getting him up. There were multiple
officers in there. Officer Willson said -
Q. Okay. Without you saying what Officer Willson said
-we'll have him testify - if you can, just explain what
you did in response to whatever he told you.
A. An officer made me aware.
Based on what I was made aware of, I looked under the couch
to where the defendant had been reaching his hand underneath
the couch in our confrontation. There was a handgun, a
revolver, underneath the couch.
relevant cross examination testimony of Detective Bumgarner
is as follows:
Q. Now, you testified pretty clearly. My client was on his
back the entire time that you were interacting with him?
A. On his back. At one point, he started to roll over as he
was reaching; but, for the majority, he was on his back.
Q. He was on his back. In fact, that's what caused you
In your training, you prefer to have individuals who you are
taking into custody to have them on their stomach, correct?
A. What caused me concern was him reaching his hands
underneath the couch which could not be explained at that
point, and I couldn't see his hands. One of the things
that we teach in officer safety is visualization of the hands
because if somebody is going to hurt you it has to be with
their hands, most likely.
Q. You would agree that one of the concerns that you have is
that you want someone you are taking into custody on their
stomach so that you can better control their arms? For
instance, if you are going to take someone into custody, you
can place their arms behind their back, correct?
A. In general. But in this circumstance, because the hands
were the first priority, that was my first priority.
Q. Now, my client remained on his back up to and including
the time when other officers engaged him, correct?
A. I believe so.
Q. When your focus was somewhere else; you were focused on
clearing the rest of the residence?
A. Yes. I remember, as they were basically jumping on him, he
made one last kind of turn to get under the couch; but I
don't think he ever fully got to his stomach. After that,
I turned my focus on the rest of the house; so I couldn't
speak to anything else beyond that.
Q. So as far as you are concerned, he's on his back and
reaching with his right hand?
A. With his right hand, yes.
Q. Now, he never grasped that gun; correct?
A. I don't know if underneath the couch he touch it or
not. I can't -1 didn't see his hands, so I can't
speak to that.
Q. You certainly never saw him grab that gun?
A. I never saw the firearm until afterwards.
direct testimony of Officer John M. Willson of the Dover
Police Department is as follows:
Q. Can you describe what was taking place when you first went
A. Mr. Ingram was on the ground; his head was kind of toward
like the television. There is a couch to the left of the
television. His left hand was reaching underneath the couch.
At that point, I grabbed his left arm and was trying to force
it behind his back.
Q. At that time - how many other officers were there at that
A. I would believe there was probably seven or eight.
Q. What, if anything, did you see Officer Bumgarner doing?
A. Officer Bumgarner continued to clear the rest of the house
to make sure that we could safely take him into custody and
that there was no one else in the house.
Q. How were the other officers dressed?
A. We all had on police tactical vests, black vests, which
says "police" across the ...