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State v. Dwyer

Superior Court of Delaware

February 1, 2019

STATE OF DELAWARE,
v.
MICHAEL DWYER, Defendant.

          Submitted: November 19, 2018

         Upon Defendant Michael Dwyer 's Motion to Proceed Pro Se for the Purpose of Filing a Request for a Certificate of Eligibility Under 11 Del. C. § 4214(f) and Del. Super. Ct. Spec. R. 2017-1(d), DENIED.

          ORDER

          Paul R. Wallace, Judge

         This 1st day of February, 2019, upon consideration of the Defendant Michael Dwyer's Motion to Proceed Pro Se for the Purpose of Filing a Request for a Certificate of Eligibility (D.I. 30) and the record in this matter, it appears to the Court that:

         (1) On July 30, 2014, a Superior Court jury convicted Michael Dwyer of Theft of Firearm.[1] A month later, a second Superior Court jury convicted Dwyer of Possession of a Firearm By a Person Prohibited (PFBPP).[2] Both counts arose from the same criminal incident, were charged in the same Information, but had been severed just before Dwyer's first trial.[3]

         (2) Dwyer's sentencing for both occurred a few months later, on October 3, 2014, after a pre-sentence investigative report was prepared and the State filed a habitual criminal petition.[4] Dwyer was sentenced to the minimum required for the triggering PFBPP conviction (S13-08-05531) for which the State sought habitual criminal sentencing under the then-extant Habitual Criminal Act: 8 years at Level V.[5] For the theft of a firearm count, he received an additional one year of imprisonment, again to be served under the provisions of 11 Del. C. § 4214(a) as it then existed.[6] Dwyer's cumulative nine-year incarcerative term will be followed by work release and probation.[7] Dwyer's sentencing order notes that his habitual criminal sentence is effective on October 3, 2014.[8]

         (3) It appears that Dwyer has recently been in contact with the Office of Defense Services and was notified that he is not eligible to seek relief under 11 Del C. § 4214(f).

         (4) Dwyer has requested permission to proceed pro se so that he might a apply for certificate of eligibility to file a petition seeking exercise of the Court's jurisdiction to modify his sentence under 11 Del. C. § 4214(f).[9] In his view, Dwyer "now avers in good faith that he does meet all requirements for at least a 'certificate of eligibility.'"[10]

          (5) The Court has carefully considered the Dwyer's motion to proceed pro se and suggestion that he is due a certificate of eligibility. Because Dwyer has not met the time-served requirement set forth in 11 Del. C. § 4214(f), he cannot seek sentence review under that statute. And so there is no basis for the Court to exercise its discretion under Del. Super. Ct. Spec. R. 2017 to allow him to proceed pro se and file a certificate of eligibility.

         (6) For his PFBPP conviction (S13-08-05531), Dwyer does meet the type-of-sentence eligibility requirement set forth in 11 Del. C. § 4214(f).[11] But Dwyer does not meet the time-served eligibility requirement set forth in 11 Del. C. § 4214(f).[12]

         (7) Under § 4214(f), an inmate meets the time-served eligibility requirement when he "has served a sentence of incarceration equal to any applicable mandatory sentence otherwise required by [the new provisions of 11 Del. C. § 4214] or the statutes describing said offense or offenses [for which the inmate was sentenced], whichever is greater."[13] To determine if this requirement is met the Court to determines where in the new habitual criminal sentencing regime a potential § 4214(f) petitioner would fall.[14]

         (7) Prior to the subject PFBPP conviction (S13-08-0553I) for which he is serving a habitual criminal sentence, Dwyer had accrued at least the following felony convictions that would be used to reckon his habitual criminal status: Carrying a Concealed Deadly Weapon (IN84-0l-1593); Assault in the Second Degree (IN94-04-0510); and Theft of a Firearm (S01-11-01891).[15] Dwyer's prior conviction for Assault in the Second Degree (IN94-04-05 l 0) and the triggering PFBPP conviction (S13-08-0553I) were each for a "Title l l violent felony."[16]

         (8) Under current 11 Del. C. § 4214(c), Dwyer, who has thrice before been convicted of felonies-one of which was a Title 11 violent felony-must receive a minimum sentence of not less than the statutory maximum penalty otherwise provided for the triggering PFBPP conviction (S 13-08-05531) that is the Title 11 violent felony that formed the basis of the State's habitual criminal petition.[17] Dwyer would, therefore, have to serve a minimum of eight years before he could be eligible for § 4214(f) consideration.

         (9) Put another way, Dwyer's minimum mandatory sentence for PFBPP under both the current and the pre-2016 provisions of the Habitual Criminal Act is exactly the same-eight years that cannot be suspended.[18] And he not yet served those eight years.[19] But even when he does, he will still not be eligible for ยง 4214(f) consideration as it is but one segment of a two-part ...


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