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State v. Boone

Superior Court of Delaware

September 4, 2019

STATE OF DELAWARE, Plaintiff,
v.
KEVIN H. BOONE, Defendant.

          Submitted: June 10, 2019

         COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED

          Abigail Rodgers Layton, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kevin H. Boone, Howard R. Young Correctional Institution, Wilmington, Delaware, pro se.

          PARKER, COMMISSIONER

         This 4th day of September 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:

         BACKGROUND, FACTS AND PROCEDURAL HISTORY

         1. In December 2013, Defendant Kevin H. Boone pled guilty to one count of dealing in child pornography and three counts of possession of child pornography. Boone was sentenced to a total period of twenty-four years at Level V incarceration, to be suspended after serving three years in prison for three years at decreasing levels of probation. Special conditions of his probation included no unsupervised contact with minors under 18 years of age and he was prohibited from internet access.

         2. Boone did not file a direct appeal to the Delaware Supreme Court.

         3. On December 20, 2017, Boone was found in violation of his probation. Specifically, the alleged misconduct included that Boone made contact with a minor via a personal ad posted on the website Craigslist, had contact with a fourteen-year-old male minor, traveled out of state with him, and that they engaged in sexual activity in both Delaware and Pennsylvania in September and October in 2017.[1]

         4. Without details or admissions regarding the alleged sexual conduct, Boone admitted that he made contact with a minor and that he had accessed the internet- both in violation of his sentence. Upon Boone's admissions, he was found in violation of his probation.[2]

         5. The Superior Court sentenced Boone to the remaining twelve years at Level V on the Dealing in Child Pornography, to be suspended upon Boone's successful completion of the Transitions Sex Offender Program, followed by two and a half years at decreasing levels of supervision.

         6. Boone did not file a direct appeal of the VOP adjudication and/or sentence to the Delaware Supreme Court.

         7. In February 2018, Boone filed a motion for reduction of sentence, which the Superior Court denied.[3] Boone did not appeal.

         8. In May 2018, Boone filed a motion for correction of sentence, claiming that his VOP sentence was illegal. The Superior Court denied his motion.[4] The Superior Court held that Boone's sentence did not exceed the statutory maximum, did not implicate double jeopardy, and was neither ambiguous nor contradictory. The Superior Court stated that its determination that Boone breached the conditions of his probation was based on his own admission. No aggravating factors were considered nor were they needed to be considered to impose the sentence in this matter.[5]

         9. Boone appealed the denial of his motion claiming that his VOP sentence was illegal to the Delaware Supreme Court. On October 9, 2018, the Delaware Supreme Court found Boone's appeal to be without merit and affirmed the judgment of the Superior Court.[6]

         10. The Delaware Supreme Court stated that in sentencing a defendant for a VOP, the trial court is authorized to impose any period of incarceration up to and including the balance of the Level V time remaining to be served on the original sentence.[7] In this case, the Superior Court reimposed the Level V time remaining from Boone's original sentence, but ordered it to be suspended upon Boone's successful completion of the Transitions Program for decreasing levels of supervision.[8] Under the circumstances, the sentence was authorized by law, was neither arbitrary nor excessive, and does not reflect any evidence of a closed mind by the sentencing judge.[9]

         11. Boone also filed a federal action, pursuant to 42 U.S.C. §1983. By Order dated April 24, 2019, the United States District Court for the District of Delaware dismissed Boone's federal action as legally frivolous and without merit.[10]

         12. In the federal action, Boone complained, among other things, that the bedroom of his brother was unlawfully searched when Boone was arrested on November 30, 2017.[11] The federal court noted that Boone's brother was not a party to the federal action and that Boone did not have standing to raise claims on his brother's behalf. Boone had not contended that he was personally injured as a result of the search of his brother's bedroom nor was there any allegation that his brother was not able to pursue his own claim if his brother desired to do so. This claim was deemed to be without merit.[12]

         13. Another claim raised in the federal action was that the probation officer Leo Matkins committed perjury when he testified at Boone's probation violation hearing that Boone was a "high risk to reoffend" and not a "moderate risk to reoffend" or a "moderate high risk to reoffend".[13]

         14. The federal court held that regardless of the interpretation of the risk assessment, the probation officer was immune from suit since witnesses are immune from §1983 liability where the claim is based on allegations of perjury either at trial or during pretrial proceedings. This claim was dismissed by the federal court.[14]

         15. On May 6, 2019, Boone filed a Petition for a Writ of Habeas Corpus in the Superior Court.[15] By Order dated May 9, 2019, the Petition was denied by the Superior Court. The Superior Court held that Boone was legally detained.[16]

         16. Boone also filed a Petition for a Writ of Mandamus with the Delaware Supreme Court seeking an Order that his 2017 VOP sentence was illegal. The Delaware Supreme Court dismissed Boone's petition.[17] The Delaware Supreme court held that there was no basis for the issuance of a writ of mandamus in this case because Boone had an adequate legal remedy. He could have appealed his VOP, but did not do so.[18] The Delaware Supreme Court ruled that a petitioner who has an adequate remedy in the appellate process may not use the extraordinary writ process as a substitute for a properly filed appeal.[19]

         BOONE'S RULE 61 MOTION

         17. On November 1, 2018, Boone filed the subject Rule 61 motion.

         18. In the subject motion, Boone raises five claims:

(1) that the State committed prosecutorial misconduct in the admission of inadmissible evidence to the grand jury and petit jury in the event of a trial;
(2) that the sentence imposed was illegal at sentencing and again at the VOP hearing;
(3) that counsel at the VOP hearing provided ineffective assistance for not raising mitigating factors at the VOP hearing;
(4) that the bedroom of Boone's brother was unlawfully searched when Boone was arrested on November 30, 2017; and
(5) that Probation Officer Leo Mathias made dishonest statements and committed perjury at the violation of probation hearing on December 20, 2017 by stating Boone was a high risk to re-offend rather than a moderate risk to re-offend.

         19. Boone sought the appointment of counsel to assist with his Rule 61 motion and for transcripts of his final case review and sentencing in 2013.

         20. Boone's request for the appointment of counsel and for the transcripts of his final case review on December 2, 2013, and his sentencing on December 12, 2013 were denied.[20] In denying the request for transcripts, this court noted that the subject Rule 61 motion was filed on November 1, 2018, about five years after sentencing. Any claim regarding Boone's original sentence would be untimely. In addition, the Delaware Supreme Court has already held that the sentence imposed was proper.[21]

         21. Before making a recommendation, the record was enlarged and Boone's trial counsel was directed to submit an Affidavit responding to Boone's ineffective assistance of counsel claims. Thereafter, the State filed a response to the motion. Boone was given the opportunity to file a reply thereto.[22]

         22. Each of Boone's claims will be addressed in turn.

         Claim One; ...


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