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State v. Yarborough

Superior Court of Delaware

October 2, 2019


          Submitted: September 11, 2019

          John W. Downs, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State of Delaware.

          David Yarborough, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se



         This 2nd day of October, 2019, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:


         Defendant's history and filings with the courts has been protracted and abundant. Relevant to the present matter, beginning in January of 2012, the following occurred:

• On January 25, 2012, Defendant was arrested and charged with twenty-three (23) offenses including Theft Greater than $100, 000, Burglary Second Degree, and Selling Stolen Property (the "Jan. 2012 Case").[1]
• On February 13, 2012, Defendant was again arrested and this time charged with Burglary Second Degree, Theft of a Senior and Conspiracy Second Degree (the "Feb. 2012 Case").[2]
• On October 9, 2012, Defendant was arrested on two charges each of Attempted Theft and Insurance Fraud (the "Oct. 2012 Case").[3] This case was pending in Kent County.

         After a series of substitutions of counsel, eventually, Adam Windett, Esquire ("Windett") was appointed to represent Defendant in the Jan. 2012 Case, Feb. 2012 Case and Oct. 2012 Case. However, due to a later conflict ofinterest (See Feb. 2014 Case summary below), John S. Malik, Esquire ("Malik") became counsel of record and represented Defendant beginning March 7, 2014 through the conclusion of these cases.[4]

         February 2014 Arrest[5]

         While the above cases were pending, on February 20, 2014, Defendant was arrested and eventually charged with two (2) counts each of Attempted Assault First Degree, Criminal Solicitation Second Degree, and Stalking (the "Feb. 2014 Case"). Essentially, while out on bail, Defendant attempted to hire a "hitman" (an undercover police officer) to assault both his then defense attorney (Windett) and the prosecutor for one of the pending cases. During this solicitation, Defendant indicated he only had available funds for one individual and an agreement was made for the hitman to attack Defendant's former defense counsel so that he would be "permanently in a wheelchair." Defendant was represented by Eugene J. Maurer, Esquire ("Maurer") in this case.

         Defendant's Plea and Sentencing

         On April 9, 2015, the Court held a plea hearing at which time Defendant was represented by both Malik and Maurer. The Plea Agreement resolved all four cases then pending before the Court.[6] Defendant agreed to plead guilty to two charges of Attempted Assault First Degree and two charges of Burglary Second Degree. The Agreement further provided that Defendant acknowledged he was eligible to be sentenced as a habitual offender for certain 2009 and 2010 felony convictions but that the State would cap its recommendation at 20 years at Level V, which would be the minimum/mandatory sentence. In addition, with respect to the October 2012 Case, the State agreed to vacate three of the convictions and that Defendant would be sentenced on a sole count of Insurance Fraud, with a recommended sentence of 2 years at Level V, suspended for probation. Finally, with respect to restitution, the agreement states: "To be imposed for all victims at time of sentencing." Both of Defendant's counsel executed the Plea Agreement with him.

         That same date, Defendant, with counsel, also signed the Truth-in-Sentencing Guilty Plea Form indicating that he was freely and voluntarily deciding to plead guilty to the charges listed in the Plea Agreement, that nothing was promised to him other than what was stated in the agreement, that no one (including his lawyer) forced him to enter the plea, and that by pleading guilty he was waiving certain constitutional rights. Through this process, Defendant was put on notice that the four charges to which he plead guilty included a minimum mandatory of 20 years at Level V but the guidelines also allowed for a sentence of 50 years or two life sentences.

         On June 1, 2015, the State filed a Motion to Declare David Yarborough a Habitual Offender (the "HO Motion") pursuant to 11 Del. C §42 14(a) and §42 15(b). The motion cited three previous convictions:

(1) Identity Theft of a Senior, Cr. A. No. 0902019247 Offense Date: On or about February 12, 2009 Conviction and Sentence Date: June 16, 2009
(2) Perjury Second Degree, Cr. A. No. 0909002817 Offense Date: On or about July 20, 2009 Conviction and Sentence Date: September 16, 2009
(3) Forgery Second Degree, Cr. A. No. 1005017858 Offense Date: On or about May 19, 2010 Conviction and Sentence Date: October 13, 2010

         In July of 20 15, the Office of Investigative Services prepared a Pre-Sentence Investigation Report ("PSI").

         The Court held a sentencing hearing on October 2, 2015, at which time Malik objected to the habitual offender designation on the basis that approximately 34 days had elapsed between two of the predicate convictions and therefore Defendant was not afforded an opportunity for rehabilitation between sentencing and arrest for the subsequent offense. The issue was thoroughly argued at the hearing.[7] However, everyone was also aware that the evidence against Defendant in the February 2014 Case was "very, very strong" and that Defendant was facing a 50-year minimum mandatory sentence.[8] At the conclusion of the hearing, the Court reserved consideration of the legal authorities and arguments but expressed concern that despite having "two of the most experienced senior defense attorneys in the State of Delaware representing him..." Defendant may not take their advice and jeopardize a favorable plea.[9]

         Several days later, the Court issued its decision granting the HO Motion. After consideration of the applicable legal authorities, the Court was satisfied that, albeit short, Defendant had sufficient time for rehabilitation.[10] The Court stated:

The court's discretion is largely informed by the subsequent offense's nature. Perhaps, for example, if Defendant had been sentenced for a drug-related offense and 30 days later he committed another drug-related offense, it could be said that Defendant's rehabilitation turned on his receiving long-termed drug treatment, for which enough time had not elapsed. Here, again, Defendant simply lied. Taking Defendant's criminal history leading up to his second, predicate offense and the subsequent perjury charge into account, the court is satisfied that the predicate offenses do not overlap and, under the present circumstances, Defendant had an adequate opportunity for rehabilitation.[11]

         On December 10, 2015, the Court held a continued sentencing hearing and the HO Motion was again granted and Defendant was sentenced.[12] At the hearing, Defendant was once again represented by both Malik and Maurer. The hearing began with the Court questioning whether there was a "need to review and revisit any aspect of the plea agreement."[13] Despite several months having passed since the Court's ruling on the HO Motion, Defendant did not raise any issues with respect to the plea. The Court then acknowledged the habitual offender proceedings and found that "the prior convictions, that is, the predicate convictions have been carefully documented."[14] After providing an opportunity to respond, defense counsel said there were no issues with respect to that matter and the Court signed the order. Both defense counsel argued for the Court not to impose more than the minimum mandatory consistent with the Plea Agreement. Finally, the State moved for restitution to be awarded in the amount of $237, 816.00 and the Court ordered joint and several liability for that obligation. After the sentence was imposed, Defendant had an opportunity to address the Court and he thanked both of his attorneys but did not contest the sentence or the amount of restitution awarded.

         Defendant's Post-Conviction Proceedings

         Despite the plea, Defendant pursued numerous post-conviction avenues for relief. The record is replete with motions, supplements and amendments that cannot all be set forth here due to length. The more relevant pleadings for the determination at bar are summarized herein.

         First, Defendant filed a Motion to Vacate the Habitual Offender determination. On February 26, 2016, the Court denied the motion on the basis that the issue had already been litigated before two other judicial officers (in October and December of2015) and to the extent Defendant was seeking reargument, the motion was untimely.[15]

         Next, Defendant appealed his conviction to the Delaware Supreme Court. On September 28, 2016, the Supreme Court affirmed the final judgment of the Superior Court "on the basis of the court's letter order dated October 9, 2015."[16] On October 14, 2016, the Supreme Court issued its mandate.

         On January 27, 2017, Defendant filed a Motion for Postconviction Relief as the first step in his Rule 61 process.[17] The record was expanded and the Court directed both trial counsel to submit affidavits responding to allegations in the Motion. Defendant was given permission to amend his Motion and multiple requests for an extension of time were granted. Defendant then filed several pleadings over a period of months that created uncertainty and confusion regarding the totality of his claims.[18] As such, the Court directed Defendant to file one cohesive pleading including all ofhis arguments.[19] Defendant responded, and the Court confirmed that his intent was to stand by the Memorandum in Support of Motion for Postconviction Relieffiled on May 10, 2018 as D.I. # 96 (the "Motion").[20] Defendant's trial counsel each submitted an Affidavit in Response to the Rule 61 Motion for Postconviction Relief.[21] The State filed a Response[22] in opposition. Despite the scheduling orders clearly delineating only one right of reply, Defendant filed multiple additional submissions: (1) Response to Maurer's Affidavit;[23] (2) Memorandum in Support of Defendant's Motion for Postconviction Relief;[24] (3) Defendant's Response to the State's Affidavit filed February 20, 2019, [25] and (4) Response to Former Counsel's Affidavit.[26] The record is now complete. After reviewing the briefs and record, I recommend that the Motion be denied.


         Before considering the merits of the claims, the Court must first determine whether there are any procedural bars to the Motion.[27] This is Defendant's first motion for post-conviction relief and it was timely filed.[28] However, pursuant to Super. Ct. Crim. R. 61(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.[29]

         Almost all of Defendant's claims, although couched as ineffective assistance of counsel claims, take issue with the Court's decision to grant the HO Motion. That issue has been litigated numerous times with the same result. To the extent Defendant is attempting to seek reconsideration of that issue, any such arguments are barred by Super. Ct. Crirn. R. 61(i)(4). Defendant's remaining claims that challenge the award of restitution, were waived pursuant to Super. Ct. Crim. R. 61(i)(3) because he failed to present them ...

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