Submitted: March 12, 2019
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED AND RULE 61
COUNSEL'S MOTION TO WITHDRAW SHOULD BE GRANTED
S. Taylor, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
F. Eaton, Esquire, The Eaton Law Firm, Wilmington, Delaware,
Attorney for Defendant Alex Ryle.
D. Werb, Esquire, Michael W. Modica, Esquire
M. Salomone, Commissioner
27th day of June, 2019, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court as
AND PROCEDURAL HISTORY
April 2, 2014, Defendant Alex Ryle ("Mr. Ryle" or
"Movant") was arrested in Wilmington, Delaware for
drug and weapons charges and violations of probation. On July
7, 2014, Mr. Ryle was indicted on the following charges: (i)
three counts of Possession of a Firearm By a Person
Prohibited ("PFBPP"); (ii) Possession of Ammunition
By a Person Prohibited ("PABPP"); (iii) Carrying a
Concealed Deadly Weapon ("CCDW"); and (iv)
Possession of a Controlled Substance ("Poss CS").
July 15, 2014, seemingly unaware of the indictment, Mr. Ryle
filed a, pro se Motion to Dismiss for Lack of Indictment. The
Motion was referred to his appointed counsel, Dade Werb, Esq.
("Mr. Werb" or "trial counsel").
September 9, 2014, Mr. Ryle filed a Motion to Dismiss Current
Counsel and/or Appoint New Counsel because Mr. Werb failed to
file certain motions requested by Mr. Ryle, including motions
for "dismissal, speedy trial, discovery, severance, and
suppression." Shortly thereafter, Mr. Werb filed a
Motion to Withdraw as Counsel.
October 27, 2014, the Motions to Withdraw as Counsel and
Dismiss Current Counsel were presented to Commissioner Lynne
Parker. After a thorough and lengthy colloquy with Mr. Ryle,
the Motions were granted and Mr. Ryle was to proceed pro
After the Court's approval of Mr. Ryle proceeding pro
se, he began filing the motions that he had previously
requested be filed by Mr. Werb. By letter dated October 28,
2014, Mr. Ryle requested discovery from the State. On
November 5, 2014, he filed a Motion to Suppress. On November
10, 2014, he filed a Motion to Sever. On November 26, 2014,
he filed a Motion to Disclose the Identity of a Confidential
Informant. The latter three motions were considered by Judge
Mary Johnson on January 23, 2015 at which time both the
disclosure and suppression motions were denied. The severance
motion was ultimately denied as moot.
December 8, 2014, a final case review was held before Judge
Charles Butler at which time Mr. Ryle rejected the plea offer
from the State.
December 22, 2014, Mr. Ryle was reindicted on the same
charges: PFBPP (3 counts), PABPP, CCDW and Poss CS.
December 29, 2014, Mr. Ryle filed a Motion to Dismiss for
Lack of a Speedy Trial, Delay in Filing an Information, and
Due Process Violations.
January 20, 2015, Mr. Ryle was arraigned on the reindicted
charges and, after another colloquy with Commissioner Parker,
signed a second Waiver of Counsel Form and confirmed his
desire to proceed pro se.
January 23, 2015, Mr. Ryle filed a Motion to Dismiss, which
was heard and dismissed by Commissioner Mark Vavala on
January 26, 2015.
February 3, 2015, Mr. Ryle filed a Motion in Limine. On
February 4, 2015, the State filed a Motion to Exclude
Inadmissable Evidence. Both Motions were addressed by Judge
Fred Silverman at a pretrial conference held on February 9,
2015. Mr. Ryle's Motion was dismissed as untimely and the
State's evidentiary issues were discussed.
jury trial was held before Judge Paul Wallace on February 10
and 11, 2015. Prior to the commencement of the trial, Judge
Wallace precluded the State from introducing a toxicology
report into evidence because it was not provided to Mr. Ryle
in a timely manner. As a result, the State did not purse the
drug offense. The State also entered a nolle
prosequi on two counts of PFBPP and the Poss CS charge.
In order to avoid introducing evidence at trial regarding his
prior convictions, Mr. Ryle stipulated that he was a person
prohibited from possessing a firearm and ammunition.
the second day of trial, Mr. Ryle requested the appointment
of standby counsel, which was denied by the Court.
Following the two-day trial, the jury found Mr. Ryle guilty
of PFBPP, PABPP and CCDW.
February 16, 2015, the State moved to declare Mr. Ryle a
habitual offender. That same day, Mr. Ryle filed a Motion for
a New Trial under Superior Court Rule 33. Ten days later, Mr.
Ryle requested leave to amend the motion, which was granted
by Judge Wallace.
August 14, 2015, Judge Wallace issued an Opinion denying the
Motion for a New Trial.
August 18, 2015, Mr. Ryle was scheduled for sentencing at
which time he renewed his request for the appointment of
standby counsel. The Court granted Mr. Ryle's request and
ordered the appointment of Mr. Werb as standby counsel for
sentencing. The sentencing was rescheduled for September 18,
2015 and then later postponed again at Mr. Ryle's
September 30, 2015, Mr. Ryle filed a Motion for Assistance of
Counsel, objecting to the appointment of Mr. Werb as standby
counsel and seeking substitute counsel.
October 2, 2015, Mr. Werb informed the Court regarding
certain issues raised by Mr. Ryle, including Mr. Ryle's
request for a merger of several charges and his objection to
being sentenced as a habitual offender. That same day, the
Court entered an Order Appointing Counsel and denied Mr.
Ryle's request to exclude Mr. Werb as counsel. The Court
advised Mr. Ryle that it would not permit "hybrid"
representation nor would the Court accept any further pro
se filings under Superior Court Criminal Rule 47.
October 8, 2015, the Superior Court granted the State's
motion and ordered that Mr. Ryle to be sentenced as a
habitual offender with respect to the charges of PFBPP and
CCDW. On the charge of PFBPP, the Court imposed the minimum
mandatory sentence required under the habitual offender
statute of fifteen (15) years of incarceration at Level V,
with a credit of 159 days for time previously served, with no
probation to follow. On the charge of CCDW, the Court also
imposed the minimum mandatory sentence required under the
habitual offender statute of eight (8) years of incarceration
at Level V, with no probation to follow. On the charge of
PABPP, the Court imposed a sentence of eight (8) years of
incarceration at Level V, suspended for decreasing levels of
October 19, 2015, Mr. Werb filed a Notice of Appeal with the
Supreme Court of the State of Delaware. On January 8, 2016, a
Stipulation of Counsel was filed in the Delaware Supreme
Court entering the appearance of Michael W. Modica, Esq.
("Mr. Modica" or "appellate counsel"), as
counsel for Mr. Ryle.
March 23, 2016, Mr. Modica filed an Opening Brief with
respect to Mr. Ryle's direct appeal to the Delaware
Supreme Court in which he raised two issues on appeal: (i)
the Superior Court Commissioner lacked the authority to grant
Mr. Ryle's request to proceed pro se and (ii)
despite having a colloquy with the Commissioner about the
risks of proceeding without counsel, Mr. Ryle did not
knowingly and voluntarily waive his right to counsel. The
State filed its Answer on April 18, 2016 and a Reply was
filed on May 3, 2016. On October 11, 2016, the Delaware
Supreme Court determined that the appeal was without merit
and affirmed the judgment of the Superior
August 16, 2017, Mr. Ryle filed a pro se Motion for
Postconviction Relief, alleging, inter alia,
ineffective assistance of counsel, as well as a Motion for
Appointment of Counsel.
Ryle raised three grounds in support of his Motion for
Postconviction Relief which are summarized as follows:
One: Ineffective Assistance of Appellate Counsel
Ryle asserts that appellate counsel was ineffective for
failing to challenge "the Trial Court's sanction of
the State's discovery violation" and that the
outcome of the appeal would have been different if appellate
counsel had done so.
Two: Ineffective Assistance of Trial Counsel
Ryle asserts that trial counsel's (i) refusal to file the
numerous pre-trial motions requested by Mr. Ryle and (ii)
failure to properly explain to Mr. Ryle his legal situation,
legal options and legal rights, forced Mr. Ryle to proceed
pro se. According to Mr. Ryle, if he had ...