Submitted: January 14, 2019
Barzilai K. Axelrod, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Dammeyin A. Johnson, Howard R. Young Correctional Institute,
Wilmington, Delaware, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
8th day of February, 2019, upon consideration of
Defendant's Motion for Postconviction Relief and the
record in this matter, the following is my Report and
FACTS AND PROCEDURAL HISTORY
November 7, 2016, Defendant was indicted on the charges of
Drug Dealing of Cocaine in a Tier 4 quantity, Aggravated
Possession of Cocaine in a Tier 5 quantity, and Operating a
Vehicle with Improper Tinting. The charges stem from a motor
vehicle stop because Defendant did not have a window tint
waiver for his vehicle. The officer detected the aroma of
marijuana, conducted a search of the car, and eventually
located a large amount of cocaine, drug paraphernalia,
multiple cellular telephones and cash. Defendant entered a
nollo contendere plea to the charge of Drug Dealing
Cocaine in a Tier 4 quantity and was sentenced to 4 years at
Level V consistent with the parties'
10, 2018, Defendant filed a Motion for Postconviction Relief,
including a 21 -page single spaced Memorandum of Law with
case citations and Appendix. On August 24, 2018, Defendant
filed "Materials to be Added to Defendant's
Memorandum of Law in Support of his Motion for
Post-Conviction Relief Pursuant to Superior Court Criminal
Rule 61," which included a typed brief and additional
exhibits in support. The record was enlarged and both of
Defendant's former counsel submitted affidavits in
response,  the State submitted a response,
Defendant filed a Reply.
presents nine (9) claims that may be summarized as follows:
• Ground One: Ineffective Assistance of Counsel.
Defendant met trial counsel for the first time on the day of
trial and counsel never conducted any pre-trial
investigation, nor was he equipped to proceed with trial.
• Ground Two: The Trial Judge was complicit in denying
Defendant effective representation. The Trial Judge knew
defense counsel had been assigned 45 days prior to trial and
had no time to discuss the case, creating circumstances
adverse to Defendant's interests.
• Ground Three: The guilty plea was involuntary.
Defendant was forced to plead guilty because counsel was
unprepared and the court would not allow a continuance.
• Ground Four: Judicial misconduct and abuse of trial
court discretion. The court should not have allowed the case
to go forward knowing defense counsel had just been assigned.
• Ground Five: The Trial Judge denied Defendant due
process/equal protection. The Trial Judge forced Defendant to
choose between a trial or plea knowing defense counsel was
not prepared to go forward with a trial.
• Ground Six: Petitioner was charged and prosecuted in
violation of his Fifth Amendment rights. The State violated
Defendant's rights by charging him with both Tier 4 Drug
Dealing and Aggravated Possession Tier 5 which are the same
offenses rooted in the same act.
• Argument # 1: The Trial Court's denial of the
continuance request was erroneous, arbitrary and an abuse of
• Argument #2: Defendant was not advised of his right to
file an appeal.
• Argument # 3: Trial Counsel never consulted with
Defendant before filing the motion for continuance and motion
• Argument # 4: Judicial misconduct because the Trial
Court refused to hear the suppression motion.
Defendant's claims were either waived or fail to meet the
standard of ineffective assistance of counsel. As such, it is
my recommendation that the Motion for Postconviction Relief
MOTION FOR POSTCONVICTION RELIEF
considering the merits of the claims, the Court must first
determine whether there are any procedural bars to the
motion. Defendant's first motion, having been
filed within one year of when the judgment of conviction
became final, is timely. Pursuant to Super. Ct. Crim. R.
61(i)(3) and (4) though, any ground for relief that was not
previously raised is deemed waived, and any claims that were
formerly adjudicated, whether in the proceedings leading to
the judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, are
thereafter barred. Ineffective assistance of counsel claims
cannot be raised at any earlier stage in the proceedings and
are properly presented by way of a motion for postconviction
Defendant's claims originate from his belief that his
rights were violated because defense counsel was appointed 45
days prior to trial, and thus trial counsel could not have
been prepared to proceed. Defendant though ignores the fact
that he had private counsel many months prior to the
substitution of counsel. Defendant retained Jonathan Layton,
Esquire ("Layton" or "Private Counsel")
on October 19, 2016. Mr. Layton obtained discovery materials
from the State and spent approximately 50 hours working on
Defendant's case. Mr. Layton reviewed and analyzed
voluminous discovery to determine whether there was a basis
to file a motion to suppress, prepared trial strategies,
drafted and sent mitigating information to the State, and
engaged in in-person meetings, discussions, telephone