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
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
AND PROCEDURAL HISTORY
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. After a hearing, the Motion to
Suppress was denied.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.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
appeal, Defendant presented three arguments. 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.
October 29, 2018, Defendant filed a pro se Motion
for Postconviction Relief (the
"Motion"). Defendant presents the following
Ground One: INEFFECTIVE ASSISTANCE OF
Supporting facts: The counsel's representation fell below
an objective standard of reasonableness.
Ground Two: PLAIN ERROR
Supporting facts: (Please see attached ...