Murder 2nd LIO Murder 1st (F),
RK10-03-0782-01 PDWDCF (F) RK10-03-0783-01 Theft MV (F)
Defendant's Motion for Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
C. Cohee, Esquire, Deputy Attorney General, Department of
Justice, for the State of Delaware.
C. Restrepo-Duque, Pro se.
William T. Deely, Esquire
Alexander W. Funk, Esquire
M. Stiller, Jr., Esquire
R. Lesniewski, Esquire
D. Donovan, Esquire
Patrick C. Collins, Esquire
COMMISSIONER'S REPORT AND RECOMMENDATION
M. Freud Commissioner
defendant, Juan C. Restrepo-Duque
("Restrepo-Duque") was found guilty, following a
jury trial on November 26, 2014 of one count of Murder in the
Second Degree, as a lesser-included offense of Murder in the
First Degree, 11 Del. C. § 635; one count of
Possession of a Deadly Weapon During the Commission of a
Felony, 11 Del C. § 1447; one count of Theft of
a Motor Vehicle, 11 Del. C. § 841 A; and one
count of Carrying a Concealed Dangerous Instrument, 11
Del. C. §1443. A presentence investigation was
ordered by the Court. On December 9, 2014 through counsel,
Restrepo-Duque filed a Motion for Judgment of Acquittal and
Motion for a New Trial with a request for a Franks
hearing. On January 15, 2015 the Superior Court denied
Restrepo-Duque's motions and sentenced him to a total of
sixty-eight years incarceration suspended after serving
thirty years, fifteen of which were minimum mandatory
followed by varying levels of probation.
timely appeal was filed by Restrepo-Duque's counsel. The
issues on appeal were noted by the Delaware Supreme Court as
Restrepo appeals and argues that the Superior Court erred by
(1) finding the nighttime search warrant of his residence and
his subsequent arrest valid; (2) admitting into evidence
Restrepo's statement made to police; and (3) admitting
into evidence information found on Wolf s laptop computer and
a social media profile and posts linking him to
Supreme Court, on December 17, 2015, affirmed
Restrepo-Duque's conviction and sentence. The Supreme
Court denied Restrepo-Duque's motion for reargument en
banc on January 5, 2016 and the mandate issued.
January 6, 2017, ten days prior to the expiration of the time
allowed under Superior Court Criminal Rule 61 to file a
Motion for Postconviction Relief, Restrepo-Duque, through
counsel, Leo John Ramuno, Esquire, filed a "First Motion
for Postconviction Relief. This "First Motion for
Postconviction Relief raised three grounds for relief but did
not include any memoranda in support of the motion. The
motion also included the following language "The
defendant reserves the right to amend this argument to
include specific reference to the numerous Err (sic) made by
his attorney and to file a memorandum with specific
references to the record and case law." By order dated
January 24, 2017, the Court gave Restrepo-Duque until April
28, 2017 to file an amended motion to include ALL
grounds for relief or to notify the Court that he does not
wish to file an amended motion.
January 31, 2017, the Court was notified by Donna L. Culver,
Esquire that Restrepo-Duque's postconviction counsel Mr.
Ramunno had been disbarred by the State Supreme Court
pursuant to an order dated January 26, 2017, and that she had
been appointed as Receiver of Mr. Ramunno's practice. Ms.
Culver - requested that Restrepo-Duque's Postconviction
Motion therefore be put on hold until Restrepo-Duque could
secure new counsel.
March 17, 2017, Ms. Culver informed the Court by letter that
she had discussed the pending motion with Restrepo-Duque and
that he was requesting that the Court appoint counsel to
represent him in his motion for postconviction relief. On
March 21, 2017, the Court granted the request and forwarded
the matter to the Office of Conflicts Counsel to appoint
counsel to represent Restrepo-Duque. Patrick J. Collins,
Esquire was subsequently appointed to represent
Restrepo-Duque. Mr. Collins notified the Court on May 8, 2017
that he was awaiting receipt of the file from the Office of
Conflicts Counsel and requested permission to notify the
Court when he had the file so the Court could then issue a
briefing schedule. The Court granted the request.
March 1, 2018 the Court issued a briefing order giving Mr.
Collins, on behalf of Restrepo-Duque, until May 1, 2018 to
file either an amended motion for postconviction relief or a
statement that the motion will proceed as initially filed or
to file or notice of intent to withdraw as counsel pursuant
to Superior Court Criminal Rule 61(e)(7). Mr. Collins
subsequently on April 16, 2018, requested an extension of
time to file. The Court granted the request and issued a new
briefing order. On June 27, 2018, Mr. Collins filed an
Amended Motion for Postconviction Relief on behalf of
Restrepo-Duque raising one ground for relief.
6, 2018 Restrepo-Duque pro se filed a Motion to
Discharge his Postconviction Counsel and to proceed pro
se. The Court then scheduled a hearing to assure that
Restrepo-Duque was knowingly, voluntarily and intelligently
asking to proceed pro se.
hearing was held by the Court on August 1, 2018 at which, Mr.
Collins, Deputy Attorney General Jason C. Cohee, on behalf of
the State and Restrepo-Duque were all present. Following a
colloquy the Court determined that Restrepo-Duque knowingly,
intelligently and voluntarily was seeking to proceed pro
se without the benefit of counsel.
August 23, 2018, the Court received the pending "Pro-se
Amended Motion for Postconviction Relief signed on August 5,
2018,  and received and docketed on August 23,
2018. The Court then issued yet another briefing
order. The matter has completed briefing and is
ready for decision.
are the facts as set forth by the Delaware Supreme Court:
(1) On February 14, 2010, Kenton Wesley Wolf was shot with a
BB gun and stabbed to death in his Smyrna residence. The
police arrested Juan Restrepo Duque ("Restrepo"),
an eighteen-year-old Colombian national who had been living
in the U.S. for seven years, and charged him with Wolfs
murder. A Superior Court jury found Restrepo guilty of second
degree murder, possession of a deadly weapon during the
commission of a felony, motor vehicle theft, and carrying a
concealed dangerous instrument. The Superior Court judge
sentenced Restrepo to a lengthy jail term, followed by
decreasing levels of supervision.
(4) Restrepo, using the profile
"purecolombianblood," met Wolf on the internet. On
January 29, 2010 Wolf picked up Restrepo at a Newark grocery
store, and together they drove to Wolfs home in Smyrna,
Delaware. There they drank beer and watched television. On
February 14, 2010, Wolf sent Restrepo an email asking to meet
again in person. Wolf picked up Restrepo from the Newark
library around 3:00 p. m., and the two bought beer before
driving to Wolf s house. According to Restrepo, they went
upstairs to Wolfs bedroom to watch television and drink beer.
Eventually, as Wolf attempted to touch Restrepo sexually,
Restrepo claimed that he noticed a nine-inch knife on the
nightstand. Restrepo testified that Wolf reached for the
knife when he rebuffed Wolfs advances, but Restrepo grabbed
the knife first. Restrepo sliced Wolf across the throat. Wolf
then chased Restrepo out of the room, yelling at him to get
(5) Fearful that Wolf would call the police, Restrepo
testified that he returned to the upstairs bedroom and found
the door locked. He kicked the door open, shot Wolf with a BB
gun and stabbed him repeatedly. Once he was sure Wolf was
dead, Restrepo pulled the bedding, the mattress and the
dresser on top of Wolf. He opened the windows and turned off
the heat, despite it being a cold February day. Restrepo then
retrieved the beer from the kitchen and packed a box with
some of Wolf s belongings, including CD's, cellphones, a
beeper, Wolfs laptop and three sets of keys. Restrepo then
left in Wolfs distinctive green 1994 Volkswagen Jetta. He
stopped at a Kmart to buy new clothing and to dispose of his
bloody clothes and shoes.
(6) On February 15, 2010, Restrepo drove Wolfs car to the
Newark Farmers Market. He used Wolfs credit card to purchase
two tasers and three knives. He then threw the knife that he
used to stab Wolf and the BB gun in a creek near his home. He
left Wolfs laptop buried in the snow in Deacons Walk Park.
Finally, he abandoned Wolfs Jetta in Brook Haven Park.
(7) On February 19, 2010, after Wolf failed to show up to
work, two of his coworkers went to his home to check on him.
They noticed the windows were open and saw his wallet and
other personal belongings scattered on the front lawn. They
called the police, who discovered Wolfs body upstairs.
(8) The police sent a desktop computer recovered from Wolf s
home to the State Police High Tech Crimes Unit for analysis.
Later that same day, a tree surgeon in Deacons Walk Park
discovered Wolfs laptop under the snow. The police analyzed
both of Wolf s computers and discovered that Wolf had
communicated with someone using the screen name
"purecolombianblood" on January 29 and February 14.
An internet search of "purecolombianblood" led to
pictures and online profiles that linked the screen name to
Restrepo. The police also learned that Wolfs credit card had
been used at the Newark Farmers Market on February 15. A
February 15 surveillance video of the Farmers Market parking
lot showed Wolfs distinctive green Jetta pulling in and
leaving, though the driver and the license plate number could
not be identified.
(9) The police secured a nighttime search warrant and went to
Restrepo's house around midnight on February 22, 2010.
The search warrant affidavit alleged that there was probable
cause to suspect that Restrepo had stolen Wolfs car and used
his credit card. At Restrepo's house, the police
discovered the keys to Wolfs missing Jetta in the pocket of a
pair of Restrepo's pants. The police brought Restrepo in
for questioning in the early hours of February 23. After
reading Restrepo his Miranda rights, Detective
William Porter said, "Having these rights in mind, do
you wish to talk to me about this case? Tell me your side of
the story." Restrepo answered. "I don't know.
What would be better? If I talk to a lawyer." The
detective replied. "I mean it's up to you I mean,
it's perfectly up to you I mean. It be nice to get your
ahh side of the story out because if you don't get your
side of the story out we got to go with...you know what
I'm saying?" Restrepo said he understood. The
detective then said, "Okay. So you wish to tell me your
side of the story?" Restrepo replied, "Yeah why
(10) Restrepo then described the events of February 14 and
15. He also told the detective where Wolfs Jetta was and
where the police could find the knife he used to stab Wolf.
The police subsequently located Wolfs car in Brook Haven
Park, where Restrepo said it would be, and the knife in the
creek near his house.
(11) Restrepo was charged with murder in the first degree,
possession of a deadly weapon during the commission of a
felony, theft of a motor vehicle, second degree forgery, and
carrying a concealed dangerous instrument. He was indicted on
June 7, 2010. On November 13, 2012, Restrepo filed a morion
in limine, a motion to suppress, a motion for a
Franks hearing, and a motion to prohibit the death
penalty. The Superior Court denied the motions on February
19, 2013. A jury trial was held from January 27 to February
4, 2014, and Restrepo was convicted of all charges except
second degree forgery.
(12) On April 15, 2014, the Superior Court held an office
conference regarding the transcripts of Restrepo's police
interview that were submitted to the jury during trial. The
court found the submission of the transcripts to be
conceivably prejudicial to Restrepo and granted a new trial
on May 6, 2014. The second jury trial was held from November
17 to 26, 2014. Wolfs laptop and social media posts linking
"purecolombianblood" to Restrepo were admitted into
evidence. Restrepo was again convicted of second degree
murder, possession of a deadly weapon during the commission
of a felony, theft of a motor vehicle, and carrying a
concealed dangerous instrument. He appeals his convictions
and the denial of his motions to suppress and for a
filed the instant Motion for Postconviction Relief pursuant
to Superior Court Rule 61. In his motion, he raises the
following grounds for relief:
Ground one: Ineffective Assistance of Counsel in violation of
State and Federal law. See Attachment: Ground one supporting
Ground two: There was insufficient evidence to support the
conviction. See Attachment: Ground two supporting facts.
Ground three: There were numerous errs (sic) in the trial
that were not raised on Appeal. See Attachment: Ground three
Grounds not previously raised: See attachment.
Restrepo-Duque's "attachment" to his motion he
lists a number of alleged faults of his various counsel in a
rambling format. I have condensed his arguments into the
A. Restrepo-Duque alleges that his counsel were ineffective
for failing to investigate the case fully and not obtaining
B. Restrepo-Duque alleges his counsel failed to give him
sufficient advice on whether or not to testify at
C. Restrepo-Duque complains multiple places that his attorney
failed to argue errors in the search warrant both at ...