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State v. Wallace

Superior Court of Delaware

May 22, 2019

STATE OF DELAWARE, Plaintiff,
v.
GERRIN L. WALLACE, Defendant.

          Submitted: May 1, 2019

          Julie Finocchiaro, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Gerrin 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 SUMMARILY DISMISSED

          PARKER, COMMISSIONER

         This 22nd day of May 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY

         1. On 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.

         2. The 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.

         3. 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.

         4. Following Wallace's arrest, he admitted going to the victim's apartment with a co-conspirator.[1] Wallace admitted that he was in possession of a Black semiautomatic 32 handgun.[2] Wallace admitted that he and his co-conspirator entered the apartment at gunpoint, stole property, and then fled.[3] 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.[4] 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 police.[5]

         5. On 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.[6] 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 sentencing.[7]

         6. By accepting the plea, Wallace was facing a minimum mandatory sentence of 9 years and a maximum sentence of up to 58 years.[8] 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.[9]

         7. On February 11, 2016, Wallace was sentenced to a total of 35 years at Level V, suspended after 10 years, for decreasing levels of probation.

         8. Wallace did not file a direct appeal to the Delaware Supreme Court.

         9. On June 7, 2017, Wallace filed a motion for reduction of sentence which was denied by the Superior Court on September 25, 2017.[10]

         WALLACE'S RULE 61 MOTION

         10. On 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.

         11. Wallace's Rule 61 motion is time-barred, otherwise procedurally barred and waived.

         12. 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.

         Wallace's Claims Were Waived Upon the Entry of His Plea

         13. A 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.[11] 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.[12]

          14. At 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 ...


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