Submitted: June 28, 2019
Periann Doko, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
Innocent E. Rogers, Sussex Correctional Institution,
Georgetown, Delaware, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE
M. Parker Commissioner
26th day of July 2019, upon consideration of Defendant's
Motion for Postconviction Relief, it appears to the Court
FACTS AND PROCEDURAL HISTORY
February 21, 2017, Defendant Innocent Rogers was arrested for
drug dealing and related drug offenses. During the course of
the investigation, police recovered a cell phone and obtained
a search warrant to examine it. A forensic examination of the
phone uncovered multiple photos of underage children engaged
in sexual acts. A subsequent search warrant was secured to
examine the phone further for evidence of child pornography.
March 16, 2017, New Castle County police executed a search
warrant for additional digital devices at Rogers'
residence. A Toshiba laptop was examined and revealed several
keywords and search terms indicative of child pornography. In
addition, file names and fragments of child exploitation
material were noted in the system artifacts. Several file
sharing programs were also located on both the laptop and
cell phone. In total, there were 29 videos of child
exploitive material and 44 images of child exploitive
material dating as far back as 2014 found on these
May 15, 2017, Rogers was indicted on twenty-five counts of
Dealing in Child Pornography. Each of these counts carried a
minimum-mandatory sentence of two years of incarceration and
a maximum sentence of twenty-five years of incarceration. If
convicted of all counts, Rogers faced a minimum-mandatory
sentence of 50 years of incarceration and a maximum sentence
of over 600 years of incarceration.
November 7, 2017, Rogers entered a no-contest plea to one
count of Dealing in Child Pornography and three counts of
Possession of Child Pornography. Rogers acknowledged that as
part of the plea agreement he was facing a two-year
minimum-mandatory prison term. After accepting the plea,
the Superior Court revoked Rogers' bail, deferred
sentencing and ordered a presentence investigation.
Before sentencing, Rogers sought to withdraw his plea. On
March 23, 2018, the Superior Court denied Rogers' motion
to withdraw his plea and sentenced him to a total period of
thirty-four years at Level V incarceration, suspended after
serving two years in prison, followed by a period of
Rogers filed a direct appeal to the Delaware Supreme
Court. On appeal, the Delaware Supreme Court
affirmed the judgment of the Superior Court. On appeal,
Rogers claimed that his counsel was ineffective and that the
Superior Court abused its discretion by denying his motion to
withdraw his guilty plea. The Superior Court would not
consider Rogers' ineffective assistance of counsel claim
on direct appeal.
to Rogers' claim that the Superior Court abused its
discretion by denying his motion to withdraw his plea, the
Delaware Supreme Court held that the record unequivocally
established that Rogers entered into his plea voluntarily and
that he was not operating under any misapprehension or
mistake as to his legal rights. The Delaware Supreme
Court concluded that under the circumstances of this case,
the Superior Court did not abuse its discretion in denying
Rogers' motion to withdraw his plea.
RULE 61 MOTION
Rogers filed the subject Rule 61 motion on January 18, 2019.
In the subject motion, Rogers raises three claims: 1) trial
counsel was ineffective for failing to file a motion to
suppress; 2) the search warrant was based on stale
information, and therefore, invalid; and 3) the Superior
Court erred in denying his motion to withdraw guilty plea.
Before making a recommendation, the record was enlarged and
Rogers' trial counsel was directed to submit an Affidavit
responding to Rogers' ineffective assistance of counsel
claims. Thereafter, the State filed a response to the motion.
Rogers was given the opportunity to file a reply
the reasons discussed below, two of the claims raised in
Rogers' Rule 61 motion are procedurally barred, all of
the claims raised in the motion were waived, and all of the
claims are without merit.
is noted that Rogers entered into a no-contest plea. For all
intents and purposes, a no-contest plea operates as a guilty
of Rogers' Claims Are Procedurally Barred
Prior to addressing the substantive merits of any claim for
postconviction relief the court must first determine whether
the defendant has met the procedural requirements of Superior
Court Criminal Rule 61. If a procedural bar exists, then the claim
is barred, and the Court should not consider the merits of
the postconviction claim.
Superior Court Criminal Rule 6l(i)(4) precludes Rogers from
raising any claims which were already raised and adjudicated
in some fashion on Rogers' direct appeal. Moreover,
Superior Court Criminal Rule 6l(i)(3) requires that Rogers
raise his claims, with the exception of his ineffective
assistance of counsel contentions, on direct
appeal. Rogers' ineffective assistance
of counsel claims are not procedurally barred by Rule
6l(i)(3) because a Rule 61 motion is the appropriate vehicle
for raising these claims.
the subject motion, Rogers claims that the search warrant was
based on stale information, and therefore, invalid (Claim
Two) and that the Superior Court erred in denying his motion
to withdraw his guilty plea (Claim Three) are procedurally
to Rogers' claim that the Superior Court erred in denying
his motion to withdraw his guilty plea, the Delaware Supreme
Court has already held on direct appeal that the record
unequivocally established that Rogers entered his plea
voluntarily and that he was not operating under any
misapprehension or mistake as to his legal
rights. The Delaware Supreme Court already
held that under the facts and circumstances of this case, the
Superior Court did not abuse its discretion in denying
Rogers' motion to withdraw his plea. This claim is
therefore procedurally barred as previously adjudicated.
to Rogers' claim that the search warrant was stale and,
therefore, invalid, Rogers was required by Rule 6l(i)(3) to
raise this claim on direct appeal but failed to do so.
Rogers had time and opportunity to raise any issue he desired
to on direct appeal. Rogers was aware of, had time to, and
the opportunity to raise this claim on direct appeal but
failed to do so. Rogers has not established any prejudice to
his rights and/or cause for relief. Having been provided with
a full and fair opportunity to present any issue desired to
be raised on direct ...