PFBPP PABPP (F)
Resist Arrest (M)
REPORT AND RECOMMENDATION
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.
D. Benson, Pro se.
M. FREUD, COMMISSIONER
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. 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.
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)" The State Supreme Court found Benson's
appeal meritless and affirmed his conviction and
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.
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
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 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.
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
Ground two: Ineffective Assistance of Counsel.
Prosecutorial Misconduct was established when the States
Prosecution withheld exculpatory "Brady" i.e. a
copy of ...