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State v. Rivers

Superior Court of Delaware

December 4, 2018

STATE OF DELAWARE, Plaintiff,
v.
THOMAS RIVERS, Defendant.

          Submitted: October 11, 2018

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POST CONVICTION RELIEF SHOULD BE DENIED AND DEFENDANT'S MOTION FOR EVIDENTIARY HEARING SHOULD BE DENIED

          Daniel B. McBride, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Thomas Rivers, pro se

          MAYER, COMMISSIONER

         This 4th 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, FACTS AND PROCEDURAL HISTORY

         On July 12, 2016, after a jury was selected and sworn, but before trial commenced, Thomas Rivers ("Defendant") agreed to plead guilty to Attempted Murder First Degree and Possession of a Firearm During the Commission of a Felony ("PFDCF").

         The charges stem from an incident that occurred on April 3, 2015, when Shurki Brown was shot seven times at close range while walking to his car. Elva Stewart ("Stewart"), the victim's aunt, was nearby at the time of the shooting. The victim survived and identified Defendant as the shooter. In addition, Dawan Harris ("Harris") was in the vicinity at the time of the shooting and provided a detailed description of what the shooter was wearing, what he looked like, and his nickname (that matched Defendant's known nickname). Harris also identified Defendant from a photographic lineup. The State intended to present evidence from surveillance cameras capturing Defendant near the scene of the shooting when it occurred and that he was wearing the exact clothing described by the witnesses.

         Through the Plea Agreement, the State agreed to cap its sentencing recommendation to 23 years at Level 5. At that time, Defendant also executed a Truth-in-Sentencing Guilty Plea Form and acknowledged that the statutory penalty for the Attempted Murder charge was 15 years at Level 5 to life imprisonment, with a minimum mandatory of 15 years at Level 5. The Court ordered a pre-sentence investigation and on July 21, 2017, Defendant was sentenced on the Attempted Murder charge to 25 years at Level 5, suspended after 15 years for decreasing levels of probation.[1]

         On September 11, 2017, Defendant moved for a modification or reduction of his sentence. The Court issued an Order denying the motion because (a) the sentence was imposed pursuant to a plea agreement; (b) the Court addressed Defendant personally in open court and determined he understood the charge and the maximum penalty; (c) Defendant acknowledged in open court that he understood the range of possible penalties; (d) the Court has no authority to reduce or suspend the mandatory portion of any sentence; and (e) no additional information was provided to warrant a reduction or modification of sentence.[2]

         On May 10, 2018, Defendant filed a Motion for Postconviction Relief.[3] The Motion presented three claims of ineffective assistance of counsel. The record was enlarged, Defendant was given an opportunity to amend the Motion, [4] trial counsel submitted an Affidavit (hereinafter "Trial Counsel") responding to the allegations, and the State filed a response.[5] After having reviewed the various papers submitted to the Court, I do not believe an evidentiary hearing would further assist with resolution of this matter.

         Defendant presents a singular basis for relief: that trial counsel was ineffective in advising him to accept the plea offer despite the failure to interview potential witnesses or conduct an independent investigation that would have resulted in a more favorable outcome.[6] Defendant's Memorandum of Law argues that Stewart would have testified that the person who shot her nephew didn't have a beard or tattoos (and Defendant did) and Trial Counsel's failure to advise him of this caused Defendant prejudice because he plead guilty rather than going to trial with this evidence.

         In addition, Defendant argues there was a "star witness" that wrote an affidavit saying he lied to the police and he never saw Defendant shoot the victim. In support of the above claims, Defendant submitted an affidavit from Dawan Harris.[7] Mr. Harris claims he falsely identified Defendant as the shooter, and only did so because he was "drunk ...


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