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State v. Benson

Superior Court of Delaware, Kent

September 25, 2019

STATE OF DELAWARE,
v.
JOSHUA D. BENSON, Defendant.

         RK16-12-0007-01 PFBPP PABPP (F)

         RK17-02-0047-01 Resist Arrest (M)

         COMMISSIONER'S REPORT AND RECOMMENDATION

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

          Lindsay A. Taylor, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware.

          Joshua D. Benson, Pro se.

          ANDREA M. FREUD, COMMISSIONER

         The defendant, Joshua D. Benson ("Benson"), pled guilty on August 1, 2017 on the day his matter was set for trial and after the jury had been picked to one count of Possession of a Firearm by a Person Prohibited ("PFBPP"), 11 Del. C. § 1448 and one count of Resisting Arrest, 11 Del. C. § 1257. He also faced one count of Possession of a Firearm During the Commission of a Felony, one count of Carrying a Concealed Deadly Weapon, one count of Possession of Ammunition by a Person Prohibited, an additional count of Resisting Arrest and one count of Riding a Bicycle the Wrong Direction on a Roadway which were nolle prossed by the State in exchange for Benson's plea. As part of the plea deal the State and the defense agreed that Benson was an habitual offender pursuant to 11 Del. C. § 4214(d) and recommended a sentence of sixteen years incarceration suspended after serving fifteen years minimum mandatory followed by probation. The Court agreed with the sentence recommendation and sentenced Benson accordingly. Had Benson gone to trial and been found guilty as charged he faced life in prison. Benson did not appeal his conviction or sentence to the State Supreme Court. Instead, Benson filed a Motion for Correction of an Illegal Sentence on October 4, 2017 which this Court denied on April 17, 2018.[1] In the interim Benson filed the pending Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on February 20, 2018 in which he alleges, in part, ineffective assistance of counsel. He filed a memorandum in support of his motion on May 8, 2019. Benson also requested the appointment of counsel which the Court denied on April 19, 2018.[2]

         After this Court denied the Motion for Correction of an Illegal Sentence, Benson filed a timely appeal with the State Supreme court and the postconviction motion was stayed. On appeal one of Benson's grounds for relief was "he could not be sentenced as an habitual offender under § 4214(d) because carrying a concealed deadly weapon is not a violent felony under 11 Del. C. § 4201 (c)"[3] The State Supreme Court found Benson's appeal meritless and affirmed his conviction and sentence.[4]

         Next on January 2, 2019 Benson filed a Motion to Amend his Rule 61 motion to add an additional claim. Finally on April 4, 2019 Benson filed a second motion to amend to add a third claim. The matter was briefed and is now ready for decision.

         FACTS

         On November 12, 2016, Benson was observed by two Dover Police officers riding a bicycle against the flow of traffic in violation of the law. The officers, who were in a marked patrol car, attempted to stop Benson who instead of complying fled the police. The police pursued Benson who ultimately fell off his bicycle and was arrested. As the officers were approaching Benson they observed him reach several times into the left breast pocket area of his jacket. The officers attempted to gain control of Benson's hands but Benson refused to cooperate. Eventually, the police were able to secure Benson after threatening to tase him. A loaded 380 caliber handgun was found in the left breast pocket of Benson's jacket.

         Benson was appointed a Public Defender, J'Aime L. Walker, Esquire to represent him on the charges. His case was initially set for trial on May 1, 2017 at which time it was continued at the defense's request. On the same date the Court had a. pro se colloquy with Benson who was requesting to represent himself because Ms. Walker was unwilling to file a meritless Motion to Suppress evidence. The Court granted Benson's request to proceed pro se and appointed Ms. Walker as standby counsel. Thereafter Benson filed a pro se Motion to Suppress on May 22, 2017. A hearing on the Motion to Suppress was held on June 26, 2017. After briefing the Court denied the Motion to Suppress on July 28, 2017[5] and the matter was set for trial. As noted above, on the morning his trial was set to begin and after having picked the jury, Benson chose to plead guilty to one count of Possession of a Firearm by a Person Prohibited, after acknowledging his past criminal record, and one count of Resisting Arrest. Benson also agreed that he was eligible to be sentenced as an habitual offender.

         BENSON'S CONTENTIONS

         Benson raises the following grounds for relief in his motion and amended motion for postconviction relief:

Ground one: Ineffective Assistance of Counsel.
Movant's counsel failed to properly review movant's prior criminal record and plea agreements. Failure to object to habitual offender claims, prejudice the movant's sentencing. Counsel assistance fell below the required standard, violating movants constitutional rights, thus more seriously affecting the fairness, integrity of the judicial proceedings.
Ground two: Ineffective Assistance of Counsel.
Prosecutorial Misconduct was established when the States Prosecution withheld exculpatory "Brady" i.e. a copy of ...

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