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State v. Tisinger

Superior Court of Delaware

February 1, 2019

STATE OF DELAWARE, Plaintiff,
v.
DOMINIQUE TISINGER Defendant.

          Date Submitted: November 5, 2018

         REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF

          Mark A. Denney, Esq., and Erika R. Flaschner, Esq., Attorneys for the State.

          Cathy Johnson, Esq., Trial Counsel for Defendant.

          Dominique Tisinger, pro se.

          BRADLEY V. MANNING, JUDGE. [1]

         This 1st day of February 2019, upon consideration of defendant Dominique Tisinger's Motion for Postconviction Relief ("Motion"), I find and recommend the following:

         Facts and Procedural History

         Mr. Tisinger ("Defendant") was convicted in the Superior Court following a non-jury trial on June 7, 2016, of Carrying a Concealed Deadly Weapon, Possession of a Firearm by a Person Prohibited, Possession of Ammunition by a Person Prohibited and Resisting Arrest. Defendant was also convicted of the charge Attempted Escape in the Third Degree.[2] Defendant was sentenced on October 7, 2016, to a total often years and six months of unsuspended level five incarceration, followed by decreasing levels of probation. Defendant filed a motion for modification of sentence that was denied by this Court on March 7, 2017. Defendant subsequently appealed his convictions to the Delaware Supreme Court. However, the appeal was dismissed as untimely on May 10, 2017.[3]

         On September 25, 2017, Defendant filed the instant Motion pursuant to Superior Court Criminal Rule 6l.[4] The Motion was subsequently referred to the undersigned judicial officer and a briefing schedule was issued. Trial Counsel filed an Affidavit responding to the claims made by Defendant on December 12, 2017.[5] The State filed its Response on February 19, 2018.[6] On May 1, 2018, the Court received a letter from Defendant. Although not captioned as such, I considered this letter as Defendant's Reply to the State's Response.[7] After review of the various pleadings, I deemed it unnecessary to hold an evidentiary hearing based on the nature of Defendant's allegations. However, I did order additional briefing instructing the parties to address why a motion to suppress was never filed in light of the Delaware Supreme Court's holding in Jones v. State, 745 A.2d 856 (Del.1999).[8] Defendant filed a Motion for Default Judgment on October 10, 2018, and a Reply to the State and Defense Counsel's supplemental submissions on November 5, 2018.[9]

         The facts of the case, as summarized from the Affidavit of Probable Cause, Defense Counsel's Amended Response and the State's Response, are as follows:

On October 12, 2015, Wilmington Police received a 911 call from a citizen who alleged that an armed man was following her, waving a gun in her face and threatening her life. The caller's voice was described as raised, erratic and highly agitated due to the display of a gun and threats. The caller informed police of her location, which was at the Auto Zone. Police responded to the call and received additional information from a concerned citizen at the Auto Zone. The citizen stated that the subject was a black male wearing a black hooded jacket and white jeans and was walking with a white male on Lancaster Avenue. Police checked the area and observed Defendant wearing the same clothing and walking with a white male on Lancaster Avenue. When police pulled up in a marked police car alongside Defendant, Defendant immediately put his right hand into the right pocket of his jacket. Police ordered the Defendant to stop and show his hands, whereupon he immediately fled. As Defendant ran away, he threw a gun to the ground within ten feet from Officer Pruitt who observed the Defendant remove the gun from his person and throw it. Defendant was apprehended shortly thereafter by other nearby officers. After being arrested, Defendant attempted to escape from the custody of Officer Reddick.

         Defendant's claims for postconviction relief, quoted verbatim, are as follows:

Ground One: Ineffective assistance of counsel/incompetent counsel. Every motion filed on my behalf was done pro se, including the appeal. I requested my lawyer to file a suppression motion which she never did and I contacted the judge about it, Judge Jurden.
Ground Two: Denial of the right to confront witnesses/6th Amendment right. There were two 911 calls and an officer met with an unidentified person and their statements were admitted into evidence under the exception to hearsay rule under the excited utterances clause.
Ground Three: Suppression of favorable evidence. At trial I was informed that the handgun that was retrieved had finger prints (DNA) on it that did not match to me. That evidence would have been favorable in a suppression hearing.
Ground Four: Officer Reddick gave and submitted a police report then got on the stand at trial and he didn't remember none of the events that he reported. Also, officer Reddick was charged with Second Degree Arson and providing false statements and other charges but was ...

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