Submitted: August 24, 2018
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED
Zachary D. Rosen, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Ortiz, Howard R. Young Correctional Institution, Wilmington,
Delaware, pro se.
Katharine L. Mayer, Commissioner.
10th day of September, 2018, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
FACTS AND PROCEDURAL HISTORY
15, 2017, Joel M. Ortiz ("Defendant") was indicted
on two counts of Possession of a Firearm by a Person
Prohibited ("PFBPP"), Possession of a Firearm with
an Obliterated or Altered Serial Number, and Possession of
time the charges were incurred, Defendant was on probation
and had been in "absconder" status for
approximately two (2) years. According to the reports, the
Wilmington Police Department (the "WPD") received
information from the ATF Task Force ("ATF") that a
reliable confidential informant reported Defendant selling
drugs out of his former residence. The WPD obtained a
warrant, went to the home, and Defendant's father
answered the door and gave consent to search. A search of the
home led to a room belonging to Defendant, and in that room
the WPD found marijuana and a firearm.
September 19, 2017, Defendant was convicted of all indicted
charges after a non-jury bench trial. Defendant was then
sentenced to a minimum of five (5) years at Level V
incarceration followed by decreasing levels of supervision.
6, 2018, Defendant filed a pro se Motion for
Postconviction Relief (the "Motion"). Upon preliminary
consideration of the Motion, the Court issued an order
expanding the record and directing Defendant's former
counsel ("Trial Counsel") to file an Affidavit in
response, but denied Defendant's request for appointment
Motion presents the following arguments:
Ineffective Assistance of Counsel: Defendant's
first argument is that counsel performance fell below an
objective standard of reasonableness and there is a
probability that [but] for his unprofessional errors [the]
results would have been different.
Due Process Violation: Due process Clause of the
United States is violated [and must] ensure that criminal
justice decisions are based ...