Opinion
1K95-12-0239 thru 0243-R1, ID No. 9511018690
Submitted: December 6, 2000
Decided: March 28, 2002
Upon Consideration of the Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
DENIEDRobert J. O'Neill, Jr., Esq., Dover, Delaware, Attorney for the State.
Kevin M. Howard, Esq., for the defendant.
ORDER
Upon consideration of defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears:
1. The defendant was found guilty at trial of Possession With Intent to Deliver Cocaine, 16 Del. C. § 4751; Conspiracy in the Second Degree, 11 Del. C. § 512; Trafficking Cocaine 16 Del. C. § 4753A(a)(2)(c); Maintaining Dwelling for Keeping Controlled Substances 16 Del. C. § 4755 (a); and Possession of Drug Paraphernalia, 16 Del. C. § 4771. The defendant was sentenced on January 31, 1999 to fifteen years minimum mandatory.
2. The defendant then filed an appeal with the Delaware Supreme Court and on November 11, 1997 the defendant's conviction and sentence was affirmed. A motion for reduction of sentence was filed with the Superior Court and later denied. The pending motion for postconviction relief was filed on December 1, 2000. In her motion the defendant raises the following two grounds for relief: 1) ineffective assistance of counsel by attracting attention to the fact the defendant did not testify; 2) again, ineffective assistance of counsel with regard to permitting the admission of certain evidence and failing to seek a cautionary instruction.
3. The Motion for Postconviction Relief was referred to the Court Commissioner Andrea Maybee Freud for proposed findings and recommendation pursuant to 10 Del. C. § 512 (b) and Superior Court Criminal Rule 61.
4. The Commissioner found that the defendant failed to make or substantiate any concrete allegations of prejudice resulting from ineffective presentation. A copy of her report is attached hereto and no written objections have been filed with the Court.
5. On March 18, 2002, a hearing was held concerning a motion to withdraw in this proceeding which was filed by the defendant's court-appointed conflict attorney. Counsel indicated in his motion that based upon his examination of the record there was no merit to the motion for post conviction relief which he could advocate. The defendant was addressed by the Court and given an opportunity to say anything she wished to offer concerning counsel's motion or her post-conviction motion. The defendant spoke primarily of her regret at being associated with a co-defendant in the case. Counsel's motion to withdraw was granted. Counsel indicated that if ordered by the Court, he would be willing to represent the defendant in presenting a commutation petition to the Board of Pardons. It will be ordered hereinafter that Kevin M. Howard, Esquire, is appointed to represent the defendant in any commutation petition which she may wish to present to the Board of Pardons. That portion of this Order, how ever, does not affect the finality of the Court's denial of her motion for postconviction relief.
NOW, THEREFORE, IT IS ORDERED that:
a. Having conducted a de novo review of the proceedings I adopt the well-reasoned Commissioner's Report and Recommendation;
b. The defendant's Motion for Postconviction Relief is denied .
c. Kevin M. Howard, Esquire, is appointed to represent the defendant in any commutation petition which she may wish to file with the Board of Pardons.