Submitted: June 17, 2019
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE DENIED.
Zachary D. Rosen, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Rose, James T. Vaughn Correctional Center, Smyrna, Delaware,
M. SALOMONE, COMMISSIONER.
30th day of September 2019, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
January 4, 2017, the Wilmington Police observed a black
Cadillac pull away from the curb in front of 515 W.
7th Street without signaling and nearly striking a
female pedestrian. The police then heard a man, later
determined to be Kadeem Rose ("Rose"), slurring his
words as he called to the female to apologize.
Wilmington Police stopped the vehicle for failure to use a
turn signal and to investigate a possible DUI. Upon being
approached by the police, Rose admitted that the vehicle had
been rented by his mother and that he was not authorized to
drive it. Because Rose was suspected of being under the
influence and not authorized to drive the vehicle, the car
had to be towed. Prior to the tow, the police conducted an
inventory search of the car and found a loaded firearm
concealed in a backgammon box in the rear magazine pocket of
the front passenger seat. As a convicted felon, Rose was
prohibited from possessing a firearm. The police also found
controlled substances hidden in Rose's sock.
3. In a
subsequent interview with the police, Rose admitted to
possessing the firearm, concealing it and knowing that it was
April 17, 2017, a New Castle County grand jury indicted Rose
on two counts of Possession of a Firearm by a Person
Prohibited ("PFBPP"), Possession of Ammunition by a
Person Prohibited, Carrying a Concealed Deadly Weapon,
Receiving a Stolen Firearm, two counts of Illegal Possession
of a Controlled Substance (or Counterfeit Controlled
Substance) and Failure to Use a Turn Signal.
July 13, 2017, counsel filed a motion to suppress on
Rose's behalf with respect to the foregoing charges. That
same day, while on bail, Rose was arrested by the Wilmington
Police on new drug charges (Cr. Id. No. 1707009665),
including Possession with Intent to Deliver Crack and
Possession of Oxycodone.
After Rose's second arrest, counsel negotiated a global
plea with the prosecutor to resolve both outstanding cases.
July 27, 2017, defense counsel met with Rose and reviewed the
plea agreement, which Rose signed.
July 31, 2017, Rose pleaded guilty to one count of PFBPP and
was immediately sentence to 15 years at Level V, suspended
after five years for two years at Level III. During the plea
colloquy with the Court, Rose stated on the record that he
understood that by entering the plea, he was waiving (i) his
right to present the motion to suppress and (ii) his right to
a trial. As part of the plea, the State agreed to
dismiss all the remaining charges of both cases.
did not file a direct appeal from his conviction or sentence
to the Delaware Supreme Court.
July 26, 2018, Rose filed a pro se Motion for
Postconviction Relief pursuant to Delaware Superior Court
Criminal Rule 61 ("Rule 61"), raising claims of
ineffective assistance of counsel for (i) failing to
"bring evidence or raise proper grounds for a
suppression hearing, " (ii) coercing him into entering
into his plea and waiving his suppression hearing, (iii)
failing to file a direct appeal, and (iv) failing to allege
that the traffic stop was pretextual. On the same day, Rose
also filed a Motion for Appointment of Counsel. The Court
denied Rose's Motion for Appointment of Counsel on August
2, 2018, finding that Rose failed to set forth a substantial
ineffective assistance of counsel claim as required by Rule
record was enlarged and defense counsel was directed to
submit an Affidavit responding to Rose's ineffective
assistance of counsel claims. Thereafter, the State filed a
response to the motion. Rose was given the opportunity to
file a reply thereto but failed to do so.
After briefing was completed, this motion was referred to the
undersigned Commissioner to assist in the resolution of the
ANALYSIS OF CLAIMS
Before considering the merits of the claims, the Court must
first determine whether there are any procedural bars to the
Rule 61 Motion. Pursuant to Super. Ct. Crim. R. 6l(i)(3)
and (4), any ground for relief that was not previously raised
is deemed waived, and any claims that were formerly
adjudicated, whether in the proceedings leading to the
judgment of conviction, in an appeal, in a postconviction
proceeding, or in a federal habeas corpus proceeding, are
thereafter barred.However, ineffective assistance of counsel
claims cannot be raised at any earlier stage in the
proceedings and are properly presented by way of a motion for
This is Rose's first motion for post-conviction relief
and it was timely filed.Since Rose has raised only ineffective
assistance of counsel claims, the Court may consider the