Patrick J. Collins, Esq. Collins & Associates
D. Gelof, Esq. Department of Justice
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
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.
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
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.
The First Plea Offer - October 22, 2013
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
The Second Plea Offer - December 11, 2013
was the same as the first plea offer.
The Third Plea Offer (The First Final Case Review) -
February 7, 2014
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.
The Fourth Plea Offer (The Second Final Case Review) -
March 19, 2014
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
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 ...