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State v. Johnson

Superior Court of Delaware

February 8, 2019


          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.



         This 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 Recommendation.


         On 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[1] and was sentenced to 4 years at Level V consistent with the parties' agreement.[2]

         On July 10, 2018, Defendant filed a Motion for Postconviction Relief, including a 21 -page single spaced Memorandum of Law with case citations and Appendix.[3] 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.[4] The record was enlarged and both of Defendant's former counsel submitted affidavits in response, [5] the State submitted a response, [6] and Defendant filed a Reply.[7]

         Defendant 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 discretion.
• 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 to suppress.
• Argument # 4: Judicial misconduct because the Trial Court refused to hear the suppression motion.

         All of 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 be denied.


         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the motion.[8] Defendant's first motion, having been filed within one year of when the judgment of conviction became final, is timely.[9] 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 relief.[10]

         All of 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 conferences, ...

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