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State v. Richards

Superior Court of Delaware, Kent

November 30, 2018

STATE OF DELAWARE
v.
GEORGE F. RICHARDS, Defendant.

         RK17-07-0449-01 DUI 7th OFFENSE (F)

         COMMISSIONER'S REPORT AND RECOMMENDATION

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Kenneth M. Haltom, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          George F. Richards, Pro se

          ANDREA M. FREUD, COMMISSIONER

         The defendant, George F. Richards ("Richards"), pled guilty on August 3, 2017 two weeks after his arrest, waiving an Indictment and proceeding by way of an Information to one count of Driving Under the Influence of Alcohol Seventh Offense, 21 Del. C. § 4177. He also faced one count of Resisting Arrest, one count of Criminal Mischief and one count of Following Too Closely which were nolle prossed by the State in exchange for Richards' plea. As part of the plea deal the State and the defense agreed upon a recommended sentence of fifteen years incarceration suspended after serving four years minimum mandatory further suspended after serving two and one half years pursuant to 21 Del C. § 4177(d)(9) in a substance abuse program at Level V immediately followed by probation with thirteen days credit for time served. The Court agreed with the sentence recommendation and sentenced Richards accordingly. Richards did not appeal his conviction or sentence to the State Supreme Court. Instead Richards filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61 in which he alleges, in part, ineffective assistance of counsel.

         The charges stemmed from complaints to the Harrington Police, on July 19, 2017, that a man was driving around Friendship Village in Harrington yelling at people and appeared to be under the influence. The police located the vehicle and stopped Richards and immediately smelled the odor of alcohol. A field test was performed and Richards blood alcohol content registered at. 143 over the legal limit. A second test taken at the police station read .138. While he was in the holding cell Richards attempted to take off the handcuffs and wrestled with the police.[1]

         RICHARDS' CONTENTIONS

         In his motion, Richards raises the following grounds for relief:

Ground one: Ineffective Assistance of counsel.
No investigation on my behalf. No BAC was ever given in writing which should happen when Breathalyzer is used.
Ground two: Probable cause to stop defendant.
There was no traffic violation by defendant The officer stated he pulled defendant over for hollaring (sic) at someone. ...

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