Submitted: December 3, 2018
Katharine L. Mayer Allison J. Abessino, Deputy Attorney
General Matthew C. Buckworth, Esquire Mr. Malcolm E. Lum, pro
Defendant, Malcolm E. Lum 's, Motion for Postconviction
Relief SUMMARILY DISMISSED.
R. WALLACE, JUDGE
27th day of December, 2018, upon consideration of
the Defendant Malcolm E. Lum's Pro Se Motion for
Postconviction Relief (D.I. 45), the Commissioner's
Report and Recommendation that Mr. Lum's Pro Se
Motion for Postconviction Relief should be SUMMARILY
DISMISSED, and the record in this case, it appears
to the Court that:
(1) On September 14, 2017, following a one-day trial, a
Superior Court jury convicted the Defendant Malcolm E. Lum,
of Possession of a Firearm by a Person Prohibited
("PFBPP"), Possession of Ammunition by a Person
Prohibited ("PABPP"), and Carrying a Concealed
Deadly Weapon ("CCDW"). The Court immediately
sentenced Mr. Lum to a total period of 28 years at Level V
incarceration, to be suspended after serving 5 years in
prison for decreasing levels of supervision.
(2) Mr. Lum filed a direct appeal to the Delaware Supreme
Court, arguing that that the weapon seized from him should
have been suppressed as evidence. The Supreme Court found Mr.
Lum's several appellate suppression claims lacked merit
and affirmed this Court's judgments denying suppression,
and of conviction and sentence.
(3) In October 2018, Mr. Lum filed a timely pro se
Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 6l.
(4) That motion was referred to Superior Court Commissioner
Katharine L. Mayer in accordance with 10 Del. C.
§ 512(b) and Superior Court Criminal Rule 62 for
proposed findings of fact, conclusions of law, and
recommendations for its disposition.
(5) The Commissioner filed her Report and Recommendation on
December 3, 2018. The Commissioner recommended that Mr.
Lum's Motion for Postconviction Relief be summarily
(6) "Within ten days after filing of a
Commissioner's proposed findings of fact and
recommendations . . . any party may serve and file written
objections."Neither Mr. Lum nor the State filed an
"objection" to the Commissioner's Report
pursuant to Criminal Rule 62(a)(5)(ii).
(7) The Court accepts, in whole, the findings of fact and
recommendations made by the Commissioner. After a thorough
review of the record in this case, the Court finds there is
no constitutional or legal basis to doubt the validity of Mr.
Lum's convictions or sentence. Nor is there a doubt that
Mr. Lum received effective assistance of counsel in
prosecuting his suppression motion, litigating the issues
that counsel had a good faith basis to believe had merit, and
defending Mr. Lum at trial. Lastly, there is no doubt that
the discernable claims Mr. Lum now makes are subject to the
procedural bars identified by the Commissioner in her report.
In short, it plainly appears from the motion and the record
of prior proceedings that Mr. Lum is not entitled to
THEREFORE, after careful and de novo review
of the record in this case, and for the reasons stated in the
Commissioner's Report and Recommendation of December 3,
2018, Mr. Lum's Motion for Postconviction Relief is