SUBMITTED: MARCH 12, 2018
L. Hrivnak, Esquire, Delaware Department of Justice, Attorney
for the State.
S. Edinger, Jr., Esquire, Office of Defense Services, Defense
D. Moore, pro se, Defendant.
COMMISSIONER'S REPORT AND RECOMMENDATION ON
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF
27th day of June 2018, upon consideration of
defendant Earle D. Moore's Amended Motion for
Postconviction Relief ("Motion"), I find and recommend
pled guilty to Assault First Degree, Possession of a Deadly
Weapon During the Commission of a Felony (PDWDCF) and
Burglary Second Degree, on June 15, 2015. As part of the plea
agreement, the State agreed to discharge a pending Violation
of Probation as unimproved. The plea agreement indicated that
the State would seek to declare Moore a habitual offender
pursuant to 11 Del. C. § 4121(a) as to the
Burglary Second Degree and PDWDCF charges. The plea agreement
indicated no specific recommendation as to sentencing and
stated "open sentencing." The Truth in Sentencing
form correctly listed the sentence ranges for each charge and
that Moore would face a minimum mandatory sentence of at
least 35 years at Level Five. A pre-sentence investigation
was requested. The plea agreement indicates that Moore wished
to pled Guilty But Mentally 111 (GBMI), however, the State
opposed this request and requested a hearing pursuant to 11
Del. C. § 408(a). On June 30, 2015, the Court
issued an order finding that the facts presented did not
support a guilty but mentally ill plea. Moore was offered
an opportunity to withdraw his guilty plea at that time but
declined to do so and a pre-sentence investigation was
November 13, 2015, Moore was sentenced as a Habitual Offender
to 37 years of unsuspended Level Five time, followed by
probation. Moore did not appeal his conviction or sentence to
the Delaware Supreme Court. On September 30, 2016, Moore
filed a first motion for postconviction relief pursuant to
Superior Ct. Crim. Rule 61. The Motion was referred to the
undersigned commissioner on October 5, 2016. After numerous
requests by Moore to enlarge the record and for extensions of
time, all of which were granted by the Court, Moore filed an
amended Motion on September 19, 2017. Defense Counsel and the
State both subsequently filed Responses on February 15, 2018,
and March 12, 2018, respectively. Moore did not file a Reply.
review of the pleadings in this matter, I did not deem it
necessary to hold an evidentiary hearing based on the nature
of Moore's allegations.
claims for postconviction relief can be summarized as
Ground One: Ineffective assistance of counsel during
the initial of his plea negotiation such that it questions
the validity of the plea as to whether it was knowingly and
Ground Two: Brady Violation. The State failed to
disclose reports tending to show that the victim was the
aggressor in previous domestic incidents.
Ground Three: Trial counsel showed no loyalty and
made disparaging statements about him to the victim about
him, including that he was an animal and should die in prison
and that he would allow the State prosecutor to do what they
wanted to him.
Ground Four: Ineffective assistance of Counsel.
Counsel failed to contact any witness for the movant and did
not investigate the case. Counsel also failed to present
highly mitigating evidence due to his own personal feelings
Ground Five: Ineffective assistance of Counsel.
Counsel failed to make the movant aware of the penalty he
faced by telling him he would be able to receive an amount of
goodtime credits impossible for ...