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State v. Lum

Superior Court of Delaware

December 3, 2018

STATE OF DELAWARE, Plaintiff,
v.
MALCOLM LUM, Defendant.

          Submitted: October 29, 2018

          Allison J. Abessino, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Malcolm Lum, pro se.

          COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED

          MAYER, Commissioner.

         This 3rd day of December, 2018, upon consideration of Defendant's Motion for Postconviction Relief and the record in this matter, the following is my Report and Recommendation.

         BACKGROUND AND PROCEDURAL HISTORY

         Defendant, Malcolm E. Lum, was arrested after officers stopped him and conducted a pat-down search that lead to the discovery of a loaded 10-millimeter handgun in his waistband. Defendant was indicted and charged with two counts of Possession of a Firearm by a Person Prohibited ("PFBPP"), Possession of Ammunition by a Person Prohibited ("PABPP"), one count of Carrying a Concealed Deadly Weapon ("CCDW") and Resisting Arrest. Defendant's trial counsel filed a Motion to Suppress and argued that the officers lacked reasonable articulable suspicion to stop Defendant.[1] After a hearing, the Motion to Suppress was denied.[2]Prior to trial, the parties stipulated that Defendant was a person prohibited by Delaware law from possessing or controlling a firearm or ammunition for a firearm.[3]A jury trial was held in September of 2017 and Defendant was found guilty of PFBPP, PABPP and CCDW but not guilty of the remaining charge. On September 20, 2017, Defendant was sentenced. Defendant promptly filed an appeal and the Delaware Supreme Court affirmed the judgment of conviction.[4]

         On appeal, Defendant presented three arguments.[5] First, Defendant argued the officers lacked reasonable articulable suspicion to justify the stop and subsequent search. The Supreme Court reviewed the evidence in the record and found that Defendant was acting suspiciously in a high crime area and appeared to be armed, which supported the stop and search. Second, although not raised during the trial proceedings, Defendant essentially argued the police would have searched him regardless of the evidence in the record (i.e. bias). The Supreme Court found no error by the Superior Court and that there was a rational basis to support the events in question. Third, Defendant presented another new argument challenging the authority of a probation officer to conduct the seizure. After examining the legal arguments presented, the Supreme Court once again found no plain error occurred.

         On October 29, 2018, Defendant filed a pro se Motion for Postconviction Relief (the "Motion").[6] Defendant presents the following arguments:

Ground One: INEFFECTIVE ASSISTANCE OF COUNSEL
Supporting facts: The counsel's representation fell below an objective standard of reasonableness.
Ground Two: PLAIN ERROR
Supporting facts: (Please see attached ...

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