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State v. Davenport

Superior Court of Delaware

July 24, 2018

STATE OF DELAWARE
v.
FRANK DAVENPORT, Defendant.

          Submitted: April 25, 2018

         Upon Defendant's Motion for Postconviction Relief DENIED

         Frank Davenport, self-represented litigant

          MEMORANDUM OPINION

          The Honorable Andreat L. Rocanelli, J

          Defendant Frank Davenport ("Defendant") moves for postconviction relief. Defendant generally argues that he is entitled to postconviction relief because of errors that occurred in and throughout his sentencing hearing. By letter dated April 25, 2018, the Court denied Defendant's request for appointment of counsel pursuant to Superior Court Rule of Criminal Procedure 61(e)(3).[1] For the reasons that follow, Defendant's motion for postconviction relief is denied.

         FACTUAL AND PROCEDURAL BACKGROUND

         On January 16, 2010, Holly Wilson was shot and killed in her home. Defendant was present at Wilson's home when the shooting took place, and initially reported it to the police as a suicide.[2]

         On January 21, 2014, Defendant was indicted for Murder in the First Degree and Possession of a Firearm During the Commission of a Felony in connection with the death of Wilson. Defendant was also charged with Aggravated Menacing and Possession of a Firearm During the Commission of a Felony in connection with events that took place in October 2009, that also involved Wilson. Defendant was represented by Ross Flockerzie, Gerald Spadacinni, and Brett Hession (collectively, "Trial Counsel").

          On May 27, 2015, Defendant pled nolo contendere to Manslaughter and one count of Possession of a Firearm During the Commission of a Felony. Defendant was sentenced on November 20, 2015, as follows: for Manslaughter, 25 years at Level 5, suspended after 15 years for 10 years at Level 4 DOC discretion, suspended after six months for two years at Level 3 GPS; and for Possession of a Firearm During the Commission of a Felony, five years at Level 5, no probation to follow. Defendant was also ordered to pay $7, 339.89 to the Victim's Compensation Assistance Program ("VCAP").

         Defendant filed a timely appeal to the Delaware Supreme Court. Defendant's arguments on appeal were:

i) that the State impermissibly breached its plea deal with him by asking the Superior Court to sentence Davenport to no less than the sentence cap to which Davenport and the State agreed; ii) that the Superior Court used inaccurate information to sentence Davenport in violation of his due process rights; and iii) that the Superior Court impermissibly ordered Davenport to pay restitution to [VCAP].[3]

         The Delaware Supreme Court affirmed the judgment of the Superior Court on October 21, 2016.[4] Defendant then filed a petition for a writ of certiorari with the United States Supreme Court, which was denied on April 3, 2017.[5]

          On March 29, 2018, Defendant filed a motion for postconviction relief ("PCR Motion") as a self-represented litigant. Defendant generally raises three grounds for relief in his PCR Motion. First, Defendant argues that the State acted improperly with respect to Defendant's sentencing by not sending a copy of the State's sentencing packet to Trial Counsel until the night before sentencing and using "inflammatory" materials and language during the sentencing hearing. Second, Defendant argues that this Court sentenced Defendant based on "inaccurate and unverified data," because the State referred to Defendant as homeless, because the Court considered improper aggravating factors under the SENT AC guidelines, and because the Court failed to consider forensic evidence in Defendant's favor. Third, Defendant argues that Trial Counsel were ineffective by failing to object to the State's sentencing packet and by making decisions without consulting Defendant.

         PROCEDURAL BARS TO POSTCONVICTION RELIEF

         Before addressing the merits of a motion for postconviction relief, this Court must consider the procedural requirements of Rule 61(i).[6] To be considered on the merits, a defendant's motion for postconviction relief must be his or her first postconviction motion, [7] and it must be timely.[8] Defendant's PCR Motion is his first motion for postconviction relief, and it is timely because it was filed within one year April 3, 2017, the date on which his judgment of conviction became final. However, Defendant is also barred from raising grounds for relief that either should have been properly asserted in the proceedings below, [9] or which were previously adjudicated in the proceedings below.[10] Defendant raises several claims that are procedurally barred.

         I. Procedural Default Bar

         Rule 61(i)(3) states, "Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant's rights."[11] The procedural default bar "applies to claims not asserted during trial as well as claims not raised on direct appeal."[12] Defendant raises several claims that are subject to the procedural default bar.

         First, Defendant's argument that the State acted improperly with respect to Defendant's sentencing by delaying to send the sentencing packet to Trial Counsel until the night before sentencing and by using "inflammatory" materials and language is procedurally barred. Any objection Defendant had to the timing of the State's sentencing packet should have been made at the sentencing hearing. Similarly, if Defendant wished to object to the State's alleged use of "inflammatory" language or pictures, Defendant should have made specific objections at the time. Defendant may not raise these objections for the first time on a motion for postconviction relief.[13] Therefore, Defendant's argument regarding the State's alleged improper behavior at sentencing is procedurally barred.

         Second, Defendant's argument that the Court sentenced Defendant based on "inaccurate and unverified data," because the State referred to Defendant as homeless and because the Court failed to consider forensic evidence in Defendant's favor is procedurally barred. Defendant had the opportunity to object to the State's "homeless" comment at the time it was made. In addition, Trial Counsel did, in fact, challenge the State's forensic evidence at the sentencing hearing while also highlighting the forensic evidence in Defendant's favor. Defendant cannot now challenge the role ...


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