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State v. Cannon

Superior Court of Delaware, Kent

May 24, 2019

STATE OF DELAWARE
v.
ELIJAH L. CANNON, Defendant.

          RK17-01-0509-01 Theft (M) RK17-01-0510-01 PFDCF (F)

         Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61

          Stephen E. Smith, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          Elijah L. Cannon, Pro se

          COMMISSIONER'S REPORT AND RECOMMENDATION

          ANDREA M. FREUD, COMMISSIONER

         The defendant, Elijah L. Cannon ("Cannon"), pled guilty on October 13, 2017 to one count of Possession of a Firearm During the Commission of a Felony ("PFDCF"), 11 Del. C. § 1447A and once count of Misdemeanor Theft, 11 Del. C. § 841, as a lesser included offense of Robbery in the First Degree. He also faced one count of Possession of a Firearm by a Person Prohibited, one count of Possession of a Firearm Without a Serial Number, one count of Wearing a Disguise During the Commission of a Felony, one count of Tampering with Physical Evidence and one count of Conspiracy in the Second Degree which were nolle prossed'by the State in exchange for Cannon's plea. As part of the plea deal the State and the defense agreed upon a recommended sentence of four years incarceration suspended after serving three years minimum mandatory followed by probation. The Court agreed with the sentence recommendation and sentenced Cannon accordingly. Had Cannon gone to trial and been found guilty as charged he faced a minimum mandatory sentence of six years and the possibility of over fifty years incarceration. Cannon did not appeal his conviction or sentence to the State Supreme Court. Instead Cannon filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61 on July 11, 2018 in which he alleges, in part, ineffective assistance of counsel.[1]

         FACTS

         The charges stemmed from series of armed robberies in the Milford, Delaware area. These particular charges related to an armed robbery on January 21, 2017 of Mike's Liquor Mart in Milford, Kent County, Delaware. When the police arrived at the scene they spoke to the victim the manager of the store who explained that two black males with their faces concealed entered the store. One with a shotgun and one with a pistol. The suspect with the shotgun pointed it at the victim and demanded he open the various cash registers while the suspect with the pistol stood by the door as a lookout. When the lookout stated someone was coming the two suspects fled. The police were able to tack the suspects using a K-9 to a location with fresh car tire tracks. The officers took photographs of the tracks. The police also viewed the store surveillance video which confirmed the victim's statements and showed one of the suspects with a "pistol grip" shotgun. A short while later the police stopped a black Dodge Charger that they suspected was involved in the robbery. Two black males fled from the vehicle but the driver Nakkashea Scott did not flee. She admitted to the police that she had knowingly driven Shaiheme Edwards and a suspect she knew as "E" to the robbery. She stated that "E" had the shotgun which was a pistol grip shotgun with an obliterated serial number and was located in the back of the vehicle where "E" had been. The police also recovered a silver replica BB pistol in the vehicle as well. On January 23, 2017 the police acting on a tip located Cannon (a/k/a "E") who was positively identified. During a post Miranda interview Cannon admitted to being involved in the robbery with another suspect whom he refused to identify. Cannon admitted to using the BB gun and to sitting in the back seat of the vehicle, where the shotgun was found. He also admitted to throwing some of his clothing away to avoid detection. Cannon was a person prohibited due to his criminal history.[2]

         CANNON'S CONTENTIONS

         In his motion, Cannon does not specify any grounds for relief but simply states "See Attached [Memorandum of Law in Support of Rule 61 Motion for Post-conviction Relief]." In the memoranda he raises two grounds for relief. They are summarized as follows:

Ground one: Ineffective Assistance of counsel. Failure to advise during Plea Negotiations.
Ground two: Ineffective assistance of counsel. Failure to investigate and develop mitigating evidence that would have supported defendant's case during sentencing.

         DISCUSSION

         Under Delaware law, this Court must first determine whether Cannon has met the procedural requirements of Superior Court Criminal Rule 61 (i) before it may consider the merits of his postconviction relief claim.[3] This is Cannon's first motion for postconviction relief, and it was filed within one year of his conviction becoming final. Therefore, the requirements of Rule 6l(i)(1) - requiring filing within one year and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion, are met. None of Cannon's claims were raised at the plea, sentencing, or on direct appeal. Therefore, they are barred by Rule 6l(i)(3), absent a demonstration of cause for the ...


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