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State v. Rose

Superior Court of Delaware

September 30, 2019

KADEEM ROSE, Defendant.

          Submitted: June 17, 2019


          Zachary D. Rosen, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

          Kadeem Rose, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.


         This 30th day of September 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:


         1. On 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.[1]

         2. The 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 stolen.

         4. On 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.

         5. On 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.

         6. After Rose's second arrest, counsel negotiated a global plea with the prosecutor to resolve both outstanding cases.

         7. On July 27, 2017, defense counsel met with Rose and reviewed the plea agreement, which Rose signed.

         8. On 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.[2] 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.[3] As part of the plea, the State agreed to dismiss all the remaining charges of both cases.

         9. Rose did not file a direct appeal from his conviction or sentence to the Delaware Supreme Court.

         RULE 61 MOTION

         10. On 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 6l(e)(2)(ii).

         11. The 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.[4]

         12. After briefing was completed, this motion was referred to the undersigned Commissioner to assist in the resolution of the motion.


         13. Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the Rule 61 Motion.[5] 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.[6]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 postconviction relief.[7]

         14. This is Rose's first motion for post-conviction relief and it was timely filed.[8]Since Rose has raised only ineffective assistance of counsel claims, the Court may consider the ...

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