RK16-05-0441-01, RK17-01-0074-01, RK17-01-03 84-01, Burglary
3rd (F) (VOP), RK16-05-0443-01 Conspiracy
2nd (F) (VOP)
REPORT AND RECOMMENDATION
Defendant's Motion For Postconviction Relief Pursuant to
Superior Court Criminal Rule 61
M. FREUD COMMISSIONER.
February 21, 2017, Defendant Christopher J. Forster
("Forster") pled guilty to one count of Burglary in
the Third Degree, 11 Del C. § 824 and one count
of Conspiracy in the Second Degree, 11 Del. C.
§ 512 (ID no. 1605006569). In exchange for his plea, the
State entered a nolle prosequi on the remaining
charge of Theft of a Senior and recommended probation.
Following the plea, the Court sentenced Forster, pursuant to
the Plea Agreement, to five years at Level V incarceration,
suspended for one year at Level III probation. Subsequently
on May 31, 2017 Forster pled guilty to charges from two
separate indictments (ID nos. 1612009614 and 1701008492) to
two counts of Burglary in the Third Degree. In exchange for
the plea the State entered nolle prosequis on all remaining
counts for the two indictments including one count of
Burglary in the Second Degree, two counts of Possession of
Burglary Tools, two counts of Theft, three counts of Criminal
Mischief and one count of Conspiracy in the Second Degree.
The Plea Agreement recommended that Forster be sentenced to a
total of six years incarceration suspended after six months
followed by level IV Crest which was to be suspended after
successful completion of the Crest program for eighteen
months at Level III Crest Aftercare. Both Plea Agreements
included recommendations for TASC monitoring, drug and
alcohol testing and treatment and that Forster be evaluated
for mental health. The Court agreed with the Plea Agreements
and sentenced Forster accordingly.
filed several motions in his case none of which need to be
mentioned here. Eventually, on December 4, 2017, the Court
modified Forster's sentence to remove the requirement to
participate in Level IV Crest and Level III Crest Aftercare.
The Court ordered Forster to engage in mental health
counseling and treatment and be supervised by a Mental Health
probation officer as well as TASC monitoring.
January 11, 2018, the Court modified Forster's sentence
and ordered he be released into the custody of Rick Vanstory
Resource Center staff and be flowed down from Level V to
Level III probation. In addition, Forster was entered into
Mental Health Court.
13, 2018, Forster was brought before the Court for a
violation of probation hearing covering all sets of charges
listed above. Forster admitted to violating his
probation.l Consequently, the Court found
Forster to be in violation of his probation and re-imposed
the one year at Level V time which had previously been
suspended, and suspended that time after completion of Level
V Key program followed by Level IV Crest and upon successful
completion, Level III Crest Aftercare.
did not appeal either his original conviction and sentence
nor his subsequent violation of probation adjudication to the
Delaware Supreme Court. Instead he filed, pro se,
one motion for correction of an illegal sentence, requesting
a modification of his sentence. The Court denied the
motion. Thereafter, Forster fi\Qd, pro
se, the pending Motion for Postconviction Relief
pursuant to Superior Court Criminal Rule 61.
In his motion Forster raises two grounds for relief:
Ground one: Ineffective assistance of counsel. Defense
counsel for movant knew that he had a history of mental
health discharges of the same program in which he was
sentence to (Key) and never brought it to the Court's
Ground two: Incompetent. Movant was label (sic) incompetent
with the mindset of a 5 year old child. So movant does not
fully understand what happen (sic) at Court proceedings and
can't cope with Key program like other adults.
Delaware law the Court must consider the procedural
requirements of Superior Court Criminal Rule 6l(i) before
addressing the merits of any postconviction relief claim.
Forster failed to raise either of his grounds for relief at
the hearings on the violations of probation, at his
sentencings or on direct appeal to the Supreme Court. His
claims are therefore barred by Rule 6l(i)(3) absent a
demonstration of both cause and prejudice. Forster has made
little attempt to demonstrate cause for his failure to have
raised his claims sooner nor has he made any effort to show
how he was prejudiced as a result of the allegations. Forster
makes only a cursory allegation of ineffective assistance of
counsel but fails to say what more counsel could have done
given that the violation of probation was not contested.
Furthermore, there is no right to counsel at a violation of
probation hearing absent a showing of a substantial reason
against the revocation, which Forster has in no way
alleged. His claim of ineffective assistance of
counsel is therefore clearly procedurally barred by Rule
the record contradicts Forster's self-serving claim that
he is mentally incapacitated and was taken advantage of. I
have reviewed the Court ordered psychological evaluation
prepared following his Violation of Probation hearing and his
filing of the motion for modification of sentence. Since
Forster has brought his mental capacity issue in Ground two
it is appropriate to highlight several aspects of the
Forensic Mental Health Evaluation by Delaware Psychiatric
Center. Forster was notified prior to the evaluation that it
would not be confidential and that the Court would have
access to it. The report notes that he "was able to
adequately demonstrate comprehension and agreed to
proceed" knowing the evaluation was not
confidential. The report further noted, contrary to
Forster's assertion that he has the intellect of a
five-year-old, that "Mr. Forster was adequately oriented
to person, place and time. His speech was normal in rate and
volume and his thought processes were logical and
coherent." The ...