Submitted: September 4, 2019
Currier, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.
J. Price, James T. Vaughn Correctional Center, Smyrna,
Delaware, pro se.
W. Veith, Esquire.
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POST CONVICTION RELIEF SHOULD BE DENIED.
M. Parker Commissioner.
20th day of December 2019, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
AND PROCEDURAL HISTORY
July 10, 2017, Defendant Allen J. Price was indicted on
multiple drug and weapons offenses.
Price was eligible to be sentenced as a habitual offender. He
was facing at least a 34-year minimum-mandatory sentence and
a possibility of life sentences if convicted of the indicted
charges at trial.
May 22, 2018, Price entered into a guilty plea to two counts
in the indictment: Tier 4 Drug Dealing, a Class B felony, and
Possession of a Firearm by a Person Prohibited
("PFBPP"), a Class C felony. All remaining counts
of the indictment were dismissed as part of the plea.
part of the plea agreement, the parties agreed that the State
would recommend a sentence of a total of forty years of Level
V incarceration (twenty-five years for Drug Dealing and
fifteen years for PFBPP), suspended after a total of twelve
years minimum-mandatory Level V incarceration (two years for
Drug Dealing and ten years for PFBPP), followed by decreasing
levels of supervision.
part of the plea, the State agreed to not to seek enhanced
sentencing as a habitual offender.
Following the entry of Price's guilty plea, Price was
immediately sentenced to the parties agreed upon recommended
direct appeal, the Delaware Supreme Court affirmed the
judgment of the Superior Court.
August 10, 2018, Price filed a motion for sentence
modification, which was denied by the Superior Court by Order
dated October 4, 2018. In denying the motion, the Superior
Court held that the sentence was appropriate for all the
reasons stated at the time of sentencing.
the spring of 2017, multiple law enforcement agencies,
including the Delaware State Police ("DSP") and the
Federal Drug Enforcement Administration ("DEA")
were conducting a drug investigation into Marshall L.
March 7, 2017, an undercover drug transaction was arranged
with Person. Price drove Person to the predetermined location
for the undercover drug transaction. Person accompanied by
Price sold 9.1 grams of heroin to the undercover officer in
exchange for $2000.
Another undercover drug transaction was arranged to take
place on or about April 6, 2017. On that date, the police
observed Price carrying a plastic bag under his arm, entering
his vehicle, driving to Person's residence, and observed
Person getting into Price's vehicle. The police then
arrested both Price and Person.
Following Price's arrest, he was found to be in
possession of a black bag containing 17.5 logs of heroin, a
cell phone and a large amount of U.S. currency. Officers then
secured a search warrant for Price's vehicle and found an
additional 22.5 logs of heroin. In total, 36.4 grams of
heroin was found on Price's person and
Officers subsequently executed search warrants at Price's
residence and his ex-girlfriend's home. At Price's
residence, officers recovered a Sig Sauer .45-caliber handgun
loaded with eight rounds of ammunition, numerous plastic
baggies commonly used to package heroin, and documentation
bearing Price's name. At Price's ex-girlfriend's
residence, officers recovered a S&W 9mm firearm loaded
with 10 rounds of ammunition, a box containing additional
rounds of ammunition, and additional documents bearing
RULE 61 MOTION
Price filed the subject Rule 61 motion on May 9, 2019. In the
subject motion, Price raises two claims: 1) counsel was
ineffective for failing to file a motion to suppress the
search warrants for the two residences; and 2) the sentence
on the drug dealing charge was illegal.
Price also filed a motion for the appointment of counsel. By
Order dated June 10, 2019, Price's motion for the
appointment of counsel was denied and a briefing schedule was
established for the briefing of this motion.
record was enlarged and Price's trial counsel was
directed to submit an Affidavit responding to Price's
ineffective assistance of counsel claims. Thereafter, the
State filed a response to the motion and Price filed a reply
Illegal Sentence Claim
Turning first to Price's claim that his sentence on the
drug dealing charge was illegal, it is first noted that an
illegal-sentence claim is not a cognizable ...