Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Demby

Superior Court of Delaware, Kent

October 16, 2019

STATE OF DELAWARE
v.
MICHAEL E. DEMBY, Defendant.

          Submitted: October 1, 2019

         RK12-07-0025-01 DDEAL Tier 4 (F) RK12-07-0026-01 Consp 2nd (F) RK12-07-0028-01 Poss Drug Parap (F)

          ORDER

          JEFFREY J CLARK, JUDGE

         On this 16th day of October 2019, upon consideration of Michael Demby's ("Mr. Demby's") Motion for Postconviction Relief, the Commissioner's Report and Recommendation, the State's response, and the record in this case, it appears that:

         1. On October 9, 2013, a jury found Mr. Demby guilty of one count of Drug Dealing Tier 4, 16 Del. C. § 4752; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771.

         2. Thereafter, on October 11, 2013, Mr. Demby filed a motion for judgment of acquittal. The Court denied the motion on November 25, 2013[1] and sentenced Mr. Demby to twenty-seven years incarceration suspended after serving fifteen years to be followed by decreasing levels of probation.

         3. Mr. Demby then filed a timely notice of appeal with the Delaware Supreme Court. In the appeal, he raised the following claims: the admission of a wiretap recording violated his right to cross-examine the declarants; the wiretap recordings should not have been admitted; and the State's prosecution violated the Double Jeopardy Clause. The Delaware Supreme Court found no merit to those claims and affirmed his convictions and sentences on July 21, 2014.[2]

         4. He next filed a motion for a new trial that focused on alleged errors committed by the Office of the Medical Examiner. This Court denied the motion and the State Supreme Court affirmed that denial.[3]

         5. On March 14, 2016, Mr. Demby then filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. Because his second appeal to the Delaware Supreme Court was still pending, that motion was deemed premature. Subsequently, on November 21, 2016, Mr. Demby filed an amended motion for postconviction relief and an accompanying motion for appointment of counsel. In his amended Rule 61 motion, he alleged ineffective assistance of trial counsel. On December 17, 2017, the Court appointed counsel to represent him. After a review of the record, his appointed counsel filed a motion to withdraw on May 2, 2018, together with a memorandum in support of the motion. In the memorandum, appointed counsel opined that the motion had no merit. The Court granted the motion to withdraw on June 29, 2018.[4]

         6.In the interim, the Court appointed a Superior Court Commissioner to provide a report and recommendation pursuant to Superior Court Criminal Rule 62. After considering the record and the parties' briefs, the Commissioner recommended denying Mr. Demby's motion. In her report, she recommended that the Court find that Mr. Demby failed to allege facts sufficient to substantiate an ineffective assistance of counsel claim.

         NOW, THEREFORE, after a de novo review of the record in this matter, and for the reasons stated in the Commissioner's Report and Recommendation dated August 21, 2019;

         IT IS HEREBY ORDERED that the Commissioner's Report and Recommendation attached as Exhibit "A", is hereby adopted by the Court in its entirety. Accordingly, Mr. Demby's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 is DENIED.

         Exhibit A

         COMMISSIONER'S REPORT AND RECOMMENDATION

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

         Nicole S. Hartman, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.

         Michael E. Demby a/k/a Michael E. Brooks, pro se.

          FREUD, Commissioner

         August 21, 2019

         The defendant, Michael E. Demby ("Demby") was found guilty following a jury trial on October 9, 2013 of one count of Drug Dealing Tier 4, 16 Del. C. § 4752; one count of Conspiracy in the Second Degree, 11 Del. C. § 512; and one count of Possession of Drug Paraphernalia, 16 Del. C. § 4771. The jury found him not guilty on separate counts of Drug Dealing Tier 4 and Conspiracy in the Second Degree and one count of Criminal Solicitation Second Degree and one count of Tier 5 Possession of Drugs. The State entered nolle prosequis on one count of Racketeering and another count of Tier 5 Possession. On October 11, 2013 Demby, through his counsel filed a Motion for Judgment of Acquittal. The Court denied the motion on November 25, 2013[5]and sentenced Demby to twenty-seven years incarceration suspended after serving fifteen years for varying levels of probation.

         A timely Notice of Appeal was filed with the Delaware Supreme Court by Demby's Trial Counsel. In the appeal the following claims were raised: whether the admission of a wiretap recording violated Demby's right to cross-examine the declarants; that the wiretap recordings should not have been admitted; and the State violated the Double Jeopardy clause. The Delaware Supreme Court found no merit in any of the claims and affirmed Demby's conviction and sentence on July 21, 2014.[6] Subsequently a Motion for a New Trial was filed alleging errors with the Office of Medical Examiner. That motion was denied in both this Court and the State Supreme Court.[7]

         On March 14, 2016 Demby filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Since his second appeal to the Delaware Supreme Court was still pending, that motion was deemed premature. Subsequently on November 21, 2016, Demby filed an Amended Motion for Postconviction Relief and an accompanying Motion for Appointment of Counsel. He raises one ground for relief alleging ineffective assistance of counsel. On December 17, 2017 the Court granted the Motion for Appointment of Counsel and subsequently Kevin P. Tray, Esquire ("Appointed Counsel") was appointed to represent Demby. After a thorough and conscientious review of the facts, the record and the law in the case, Appointed Counsel filed a motion to withdraw as counsel on May 2, 2018, along with a memorandum in support of the motion, having concluded that the motion was wholly without merit and that no meritorious grounds for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.