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State v. Johnson

Superior Court of Delaware

December 6, 2018


          Submitted: November 19, 2018

          Rebecca Song, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          Haywood Johnson, pro se



         This 6th 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.


         On May 22, 2017, an officer with the Wilmington Police Department encountered a white Astro van and approached the vehicle. The officer could see Defendant, Haywood Johnson, sleeping in the rear of the van. The officer woke him up and Defendant opened the door. At that time, the officer saw what appeared to be packaged heroin and marijuana. Defendant was ordered out of the van but tried to flee. Other officers provided assistance and Defendant was taken into custody, One of the officers saw the handle of a firearm in the pocket behind the right passenger seat. A search warrant was obtained, executed, and the drugs and firearm were seized. Defendant was indicted and charged with four counts of Possession or Control of a Firearm by a Person Prohibited (PFBPP), three counts of Possession or Control of Ammunition for a Firearm by a Person Prohibited (PABPP), Carrying a Concealed Deadly Weapon, two counts of Aggravated Possession, and Resisting Arrest.

         Defendant's trial counsel filed a Motion to Suppress and Request for a Franks Hearing.[1] Through the Motion to Suppress, Defendant argued there were inconsistencies in the Affidavit of Probable Cause in contrast to the Police Report and /or "false swearing" contained in the search warrant and sought to suppress all items seized pursuant to the search of the Defendant's vehicle.

         At the beginning of the Suppression Hearing, the Court first engaged in a colloquy with Defendant. The Court understood that Defendant's position was that there was not only factually inaccurate statements but also a "deliberate falsehood inserted in the affidavit" of probable cause.[2] The Court then explained to Defendant the difficulties with his position and that should one piece prevail, there were many other legal hurdles that made success unlikely. The Court provided time for Defendant to consult further with counsel and the State before proceeding to hear testimony from the two officers in question. The Court considered legal arguments and eventually denied the Motion to Suppress. Subsequently, at final case review, Defendant was given an opportunity to voice any issues and did not bring anything to the Court's attention.

         On December 12, 2017, Defendant's trial was scheduled to begin. Defendant was advised that if the matter went to trial, and if he were found guilty of the charged offenses, he was facing a minimum of 9 years and a maximum of 125 years of incarceration. In addition, there was a possible sentence of 35 years of incarceration for four pending violations of probation.[3] After a further opportunity to consult with trial counsel, Defendant agreed to accept a plea. The Court recited each of the constitutional rights that were being waived by Defendant's guilty plea and he voluntarily agreed to waive them.[4] After a further dialogue with the Court, Defendant indicated he was satisfied with trial counsel's representation.[5]

         On that same date, Defendant executed a Plea Agreement, Truth-In-Sentencing Guilty Plea Form and Immediate Sentencing Form. Defendant agreed to plead guilty to one count of PFBPP and one count of Aggravated Possession Tier 3 Quantity of Heroin with an Aggravating Factor, all other charges would be nolle prosequi and dismissed. According to the Plea Agreement, the State would recommend for the PFBPP charge a sentence of 15 years at Level 5 suspended for the minimum mandatory of 5 years, followed by probation; and for the Aggravated Possession charge, a sentence of 25 years at Level 5 suspended after 2 years for probation. By executing the Truth-In-Sentencing Guilty Plea Form, Defendant agreed to waive the right to a trial by jury, to question witnesses, to present evidence in his defense, to testify in his defense, and to compel the State to prove each of the charges against him. Defendant also recognized that the charges involved a possible penalty of up to 40 years at Level 5, with a minimum mandatory of 7 years, not including certain violations of probation he had pending as well. Defendant was sentenced to Level 5 time, suspended upon Defendant serving the minimum mandatory for both charges.

         On July 5, 2018, Defendant filed a Motion for Postconviction Relief.[6] In his original motion, Defendant presented the following arguments:

(1) Ineffective Assistance of Counsel: Trial Counsel failed to properly investigate the case, delayed filing a motion to suppress, and failed to properly raise issues of false statements made by officers and lack of probable cause.
(2) Plain Error: The State relied on false statements by the officers.
(3) Illegal Search and Seizure: The confidential informant's "tip" was unreliable and law enforcement had no other basis to suspect illegal activity supporting a search.
(4) Brady Violation: The State withheld evidence of misconduct by Carl Rone at the forensics lab.
(5) Ahuse of Discretion: The Trial Judge abused his discretion in denying Defendant's motion to suppress.

         On September 24, 2018, Defendant filed an additional brief in support and presented arguments including: (a) violation of Due Process when the State relied on witnesses who made sworn statements in reckless disregard for the truth; (b) improper use of the plain view doctrine; (c) use of an ...

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