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State v. Sewell

Superior Court of Delaware

July 12, 2018

State
v.
Derrick Sewell

          Patrick J. Collins, Esq. Collins & Associates

          Adam D. Gelof, Esq. Department of Justice

         Dear Counsel:

         This is my decision on Defendant Derrick Sewell's timely-filed Amended Motion for Postconviction Relief. Sewell was convicted of Assault in the First Degree, two counts of Possession of a Firearm During the Commission of a Felony, Aggravated Menacing, Possession of a Firearm By a Person Prohibited, Receiving a Stolen Firearm, and Offensive Touching.

         The convictions arose out of a shooting in West Rehoboth that occurred during an outdoor party on May 10, 2013. Sewell was in a car with two friends, Precious Tiggs and Raheem Conquest. They arrived at the party and confronted Howard Whaley and Marvin Burton. A fight ensued, at which time Tiggs passed Sewell a handgun which he used to shoot Whaley. Tiggs and Conquest reached plea agreements with the State and testified against Sewell. The State filed, and I granted, a motion to declare Sewell an habitual offender on certain offenses. I sentenced Sewell to 86 years and 30 days at Supervision Level 5, suspended after serving 81 years at Supervision Level 5 for probation. I had to sentence Sewell to an unsuspendible 81 years at Supervision Level 5 because he was an habitual offender.

         Sewell alleges that his trial counsel did not properly communicate to him the State's plea offers. More specifically, Sewell alleges that Trial Counsel did not (1) advise him of the sentencing consequences of being an habitual offender, and (2) communicate to him the State's last plea offer made during the trial. Trial Counsel filed an affidavit in response to Sewell's allegations. The State elected not to do so. I have concluded that Sewell's allegations are correct and have granted his Amended Motion for Postconviction Relief.[1]

         The Plea Offers

         The State sent, among other discovery, Sewell's criminal history to Trial Counsel on July 29, 2013. Thus, Trial Counsel should have known that Sewell was at risk of habitual sentencing if convicted.

         1. The First Plea Offer - October 22, 2013

         The State offered Sewell a plea to Assault in the First Degree, Possession of a Firearm During Commission of a Felony, Possession of a Deadly Weapon by a Person Prohibited, and Conspiracy in the Second Degree. The total sentencing range was seven to 60 years with no State recommendation and a presentence investigation.

         2. The Second Plea Offer - December 11, 2013

         This was the same as the first plea offer.

         3. The Third Plea Offer (The First Final Case Review) - February 7, 2014

         The general outline of the plea was the same except that the State made a recommendation of seven years at Supervision Level 5 with no presentence investigation. This offer also included a probation recommendation for Sewell's pending violation of probation. It was, as pleas sometimes go, a much better plea offer than the first two plea offers because the State had made a sentencing recommendation which was the same as the mandatory sentence that Sewell faced under the plea. Trial Counsel told the Court that Sewell had rejected the plea and that he faced a sentence of 30 to 110 years and was rejecting seven to 60 years. Trial Counsel was wrong because Sewell faced a mandatory 81 years, not 30 years.

         4. The Fourth Plea Offer (The Second Final Case Review) - March 19, 2014

         The trial was continued because one of the State's witnesses was unavailable. There is no written plea offer in the file. Trial Counsel stated that the "plea offer was seven to fifty with a PSI for seven or mandatory." I took this to be the same as the Third Plea Offer. This was the first proceeding where habitual sentencing was mentioned. The full colloquy is as follows:

TRIAL COUNSEL: Good morning, Your Honor.
THE COURT: Good morning.
TRIAL COUNSEL: I've gone over the last plea offer from Mr. Gelof to Mr. Sewell. Mr. Sewell rejects it. We're ready for trial.
The plea offer was seven to fifty with a PSI for seven or mandatory. If he is not treated as a habitual, it is eight to ninety-one. His previous felony convictions have been conspiracy second and two counts of failure to stop at the signal of a police officer, which is a traffic crime.
Mr. Gelof and I slightly disagree on whether or not a traffic-style offense can make someone habitual. I thought there was an exclusion for that. I couldn't find it with a quick look up in the code today; but when the motion is filed, I will vigorously defend it.
I've not seen - -
THE COURT: Basically, you are saying the top end without habitual is basically life?
TRIAL COUNSEL: The top end without habitual is 91.
THE COURT: Right.
TRIAL COUNSEL: But if he's found habitual, then it starts at 91.
THE COURT: All right. Okay. Is it your desire to go to trial?
THE DEFENDANT: (Nodding in the affirmative.)
THE COURT: The trial date will be - what day ...

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