Submitted: May 1, 2019
Finocchiaro, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
L. Wallace, Howard R. Young Correctional Institution,
Wilmington, Delaware, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
22nd day of May 2019, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
FACTS AND PROCEDURAL HISTORY
November 24, 2014, Defendant Gerrin L. Wallace was arrested
and charged with home invasion, four counts of Possession of
a Firearm During the Commission of a Felony
("PFDCF"), First Degree Robbery, Second Degree
Burglary, Aggravated Menacing, Wearing a Disguise During the
Commission of a Felony, Criminal Impersonation and Conspiracy
in the Second Degree.
charges stem from an incident wherein Wallace and a
co-conspirator entered an apartment and took a video game and
other items at gunpoint. The co-conspirator was not caught
and remains at large.
Wallace was found by the police running in the area nearby
and he matched the description of one of the suspects. The
victim positively identified Wallace as being the suspect who
held the gun during the incident.
Following Wallace's arrest, he admitted going to the
victim's apartment with a co-conspirator. Wallace
admitted that he was in possession of a Black semiautomatic
32 handgun. Wallace admitted that he and his
co-conspirator entered the apartment at gunpoint, stole
property, and then fled. Wallace told the police that he and
his co-conspirator initially left the area together in a
vehicle but agreed that they should split up so he got out of
the car. Wallace ran back towards the
victim's apartment building through the woods and was
heading back towards a bus stop when he was captured by the
the day of trial, September 1, 2015, Wallace pled guilty to
one count of Home Invasion, PFDCF, Aggravated Menacing and
Conspiracy in the Second Degree. In exchange for the guilty
plea, the State agreed to dismiss the other charges in the
indictment. The parties agreed to request a
presentence investigation and to open sentencing. As part of
the plea agreement, the parties agreed that Wallace would not
ask for less than a 10-year prison term at the time of
accepting the plea, Wallace was facing a minimum mandatory
sentence of 9 years and a maximum sentence of up to 58
years. If Wallace had not accepted the plea
and proceeded to trial, Wallace was facing a minimum
mandatory sentence of 21 years of Level V incarceration and a
maximum sentence of substantially more time than 58 years if
convicted at trial.
February 11, 2016, Wallace was sentenced to a total of 35
years at Level V, suspended after 10 years, for decreasing
levels of probation.
Wallace did not file a direct appeal to the Delaware Supreme
June 7, 2017, Wallace filed a motion for reduction of
sentence which was denied by the Superior Court on September
RULE 61 MOTION
January 7, 2019, Wallace filed the subject Rule 61 motion.
This motion was filed almost 3 years after Wallace's
conviction became final. In the subject motion, Wallace seeks
to challenge the sufficiency of the evidence against him, the
voluntariness of his guilty plea, claims violations of his
constitutional rights prior to the entry of his plea, claims
prosecutorial misconduct prior to the entry of his plea,
claims ineffective assistance of counsel in the handling of
his plea, and claims that his motion for sentence reduction
was not effectively presented and was not properly decided.
Wallace's Rule 61 motion is time-barred, otherwise
procedurally barred and waived.
Initially, it is noted that Wallace's contentions that
his postconviction motion for sentence reduction was not
effectively presented and not properly decided should have
been presented by way of appeal of that motion to the
Delaware Supreme Court. Wallace did not appeal that decision.
That motion was denied by the Superior Court in September
2017. Over one year later, in January 2019, Wallace sought
review of that decision by way of filing this Rule 61 motion.
Wallace's attempt to seek review of the denial of his
motion for sentence reduction is untimely at this late date.
Moreover, Wallace is not permitted to seek review of the
denial of that postconviction motion by way of a collateral
Rule 61 motion.
Claims Were Waived Upon the Entry of His Plea
defendant is bound by his answers on the guilty plea form and
by his testimony at the plea colloquy in the absence of clear
and convincing evidence to the contrary. In this case, the
Truth-in-Sentencing Guilty Plea Form, Plea Agreement and plea
colloquy reveal that Wallace knowingly, voluntarily and
intelligently entered a guilty plea to the charges for which
he was sentenced.
the plea colloquy, Wallace represented to the court that he
had read and understood the plea agreement and the
Truth-in-Sentencing Guilty Plea Form, and that he had
reviewed the terms of the plea with his counsel and that