1

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)

STATE OF DELAWARE )

) ID#1308004342

v. ) ID#1005013493

)

DEVON D. REED, )

)

Defendant )

Submitted: October 10, 2016

Decided: November 29, 2016

On Defendant’s Amended Motion for Postconviction Relief. DENIED.

On Defendant’s Motion for Appointment of Counsel. DENIED AS MOOT.

ORDER

Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of 

Justice, Wilmington, Delaware, Attorney for the State in Crim. ID. No. 

1308004342.

Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice, 

Wilmington, Delaware, Attorney for the State in Crim. ID. No. 1005013493.

Devon D. Reed, James T. Vaughn Correctional Center, Smyrna, Delaware, 

pro se.
2

COOCH, R.J.

This 29th day of November 2016, upon consideration of Defendant’s 

pro se Amended Motion for Postconviction Relief1and pro se Motion for 

Appointment of Counsel, it appears to the Court that:

I. FACTUAL AND PROCEDURAL HISTORY

A. Defendant’s May 24, 2011 Convictions

1. On May 24, 2011, Defendant pleaded guilty to Possession with 

Intent to Deliver Heroin, Possession of a Firearm by a Person 

Prohibited (“PFBPP”), and Reckless Endangering First 

Degree.

2

 With respect to the Possession with Intent to Deliver 

Heroin charge, Defendant was sentenced to five years at Level 

V supervision, suspended for eighteen months at Level III 

supervision. With respect to the PFBPP charge, Defendant was 

sentenced to three years at Level V supervision. With repect to 

the Reckless Endangering First Degree charge, Defendant was 

sentenced to five years at Level V supervision, suspended for

eighteen months at Level III.

B. Defendant’s January 9, 2014 Convictions

2. On January 9, 2014, in a separate matter,3 Defendant entered 

into a plea agreement with the state, pursuant to which, inter 

alia, he would plead guilty to Drug Dealing and Tampering 

with Physical Evidence and the State would cap its sentencing 

recommendation at three years at Level V incarceration. After 

a plea colloquy, Defendant pleaded guilty to the two crimes.

4

 

On March 21, 2014, Defendant was sentenced to four years at 

 

1 Defendant’s Amended Motion for Postconviction Release encompasses Defendant’s

two separate Motions for Postconviction Relief made under Criminal ID. Nos. 

1005013493 and 1308004342.

2

This guilty plea was made in connection with Defendant’s charges in Criminal ID. No. 

1005013493.

3

This matter was in connection with Defendant’s charges in Criminal ID. No. 

1308004342.

4 D.I. 10 (Crim. ID. No. 1308004342).
3

Level V supervision as a habitual offender pursuant to 11 Del. 

C. § 4214(a).5

3. With respect to the January 9, 2014 convictions, Defendant 

filed three Motions for Modification of Sentence pursuant to 

Superior Court Criminal Rule 35(a). On May 8, 2014, the 

Court denied Defendant’s first Motion for Modification of 

Sentence on grounds that the sentence was appropriate for all 

the reasons stated at the time of sentencing.6 On July 18, 2014, 

the Court denied Defendant’s second motion on grounds that 

the motion was procedurally barred, being a repetitive request 

under Rule 35(b), and that the imposed sentence was 

appropriate.7 The Court denied Defendant’s most recent 

motion on December 4, 2014 again on grounds that it was a 

repetitive motion.

8

C. Defendant’s Two Motions for Postconviction Relief and Motion for 

Appointment of Counsel

4. On May 19, 2014, Defendant filed pro se a Motion for 

Postconviction Relief in connection with the January 9, 2014

convictions. On September 29, 2014, Defendant filed pro se a 

separate Motion for Postconviction relief in connection with the 

May 24, 2011 convictions.9 On July 6, 2015, Defendant filed a 

Motion for Appointment of Counsel under the criminal 

identification number for the January 9, 2014 convictions. On 

July 21, 2015, this Court notified Defendant that his Motion for 

Postconviction Relief had been stayed, and therefore counsel 

would not be appointed at that time. On January 8, 2016, 

Defendant filed pro se an Amended Motion for Postconviction 

Relief under the criminal identification number for the January 

9, 2014 convictions. On June 6, 2016, Defendant filed a second 

pro se Motion for Appointment of Counsel, also under the 

 

5 D.I. 13 (Crim. ID. No. 1308004342).

6 D.I. 15 (Crim. ID. No. 1308004342).

7 D.I. 18. (Crim. ID. No. 1308004342).

8 D.I. 20. (Crim. ID. No. 1308004342).

9

For some reason, these motions were not referred by the Prothonotary to the 

undersigned judge at that time.
4

criminal identification number for the January 9, 2014 

convictions.10

5. In Defendant’s Amended Motion for Postconviction Relief, 

Defendant restates the grounds for postconviction relief he 

previously set forth in his other motions. Defendant moves for 

postconviction relief on three grounds. 

6. With respect to the January 9, 2014 charges, Defendant makes 

two claims. Defendant first claims that his trial counsel was 

ineffective at the sentencing hearing. Defendant claims that his 

trial counsel was ineffective for “fail[ing] to protect the 

integrity of the plea, during the March 21, 2014 sentencing 

hearing.”11 Second, Defendant requests postconviction relief 

on grounds that the State “fail[ed] to fulfill the integrity (the 

State’s cap agreement) during Reed’s March 21, 2014 

sentencing hearing.”12 

7. With respect to the May 24, 2011 charges, Defendant makes 

one claim. Defendant contends that his guilty plea was not 

offered knowingly and voluntarily, but was coerced in 

connection with the irregularities at the Office of the Chief 

Medical Examiner (“the OCME”).

13 On October 11, 2016, 

Defendant’s trial counsel filed an affidavit in response to 

Defendant’s Amended Motion for Postconviction Relief.

 

10 Super. Ct. Crim. R. 61(e) provides that: 

“(2) First postconviction motions in guilty plea cases. The judge 

may appoint counsel for an indigent movant’s first timely 

postconviction motion and request for appointment of counsel if 

the motion seeks to set aside a judgment of conviction that resulted 

from a plea of guilty or nolo contendere only if the judge 

determines that: (i) the conviction has been affirmed by final order 

upon direct appellate review or direct appellate review is 

unavailable; (ii) the motion sets forth a substantial claim that the 

movant received ineffective assistance of counsel in relation to the 

plea of guilty or nolo contendere; (iii) granting the motion would 

result in vacatur of the judgment of conviction for which the 

movant is in custody; and (iv) specific exceptional circumstances 

warrant the appointment of counsel.” 

11 Def’s. Am. Mot. for Postconviction Relief, at 3.

12 Def’s. Am. Mot. for Postconviction Relief, at 3.

13 Def’s. Am. Mot. for Postconviction Relief, at 4.
5

II. DISCUSSION

A. Defendant’s Motion for Postconviction Relief with Respect to the 

January 9, 2014 Conviction

8. Defendant’s first claim that his trial counsel was ineffective is

without merit. Under Strickland v. Washington, to prevail on 

an ineffective assistance of counsel claim, Defendant must 

show (1) that his counsel’s performance was deficient and (2) 

that such deficient performance prejudiced the outcome of his 

case.

14

 Counsel’s performance is evaluated on an objective 

standard of reasonableness,15 with great deference given to 

counsel’s decisions.16

9. In the case at bar, Defendant contends that his trial counsel was 

ineffective because the Court did not impose the sentence 

agreed upon in the plea agreement. The record shows that 

Defendant’s trial counsel assisted Defendant with entering into 

a favorable plea agreement. Defendant’s trial counsel stated in 

his affidavit that he then felt “an argument attempting to 

persuade the Judge to limit the sentence to a three-year sentence 

as agreed to between the parties was the most efficient way in 

which to proceed.”17 However, this Court is not bound by an

agreed upon sentence.18 Because the Court has discretion on

whether impose the agreed upon sentence,19 a sentence in 

excess of the State’s recommendation does not give rise to a 

claim for ineffective assistance of counsel absent additional 

facts showing actual deficient performance. Accordingly, 

Defendant’s first claim is without merit.

10. Second, Defendant’s claim that he is entitled to postconviction 

relief because the State “fail[ed] to fulfill the integrity [of the 

plea agreement] during [Defendant’s] March 21, 2014 

 

14 466 U.S. 668, 669 (1984); see also Ploof v. State, 75 A.3d 811, 820-21 (Del. 2013).

15 Ploof v. State, 75 A.3d 811, 821 (Del. 2013).

16 Strickland v. Washington, 466 U.S. 668, 687 (1984).

17 Aff. of Counsel, at 2.

18 Somerville v. State, 703 A.2d 629, 633 (Del. 1997).

19 Id.
6

sentencing hearing” is without merit.20 For the reasons stated 

above, the Court is not bound by the State’s recommendation. 

Accordingly, Defendant’s second claim is without merit.

B. Defendant’s Motion for Postconviction Relief with Respect to the May 

24, 2011 Charges

11. Defendant claims that his guilty plea to Possession with Intent 

to Deliver Heroin was not voluntary and knowing, but was 

coerced in connection with the irregularities at the Office of the 

Chief Medical Examiner and should be vacated. This claim is 

also without merit. As the United States Supreme Court’s held 

in United States v. Ruiz, “the Constitution, in respect to 

defendant’s awareness of relevant circumstances, does not 

require complete knowledge of the relevant circumstances, but 

permits a court to accept a guilty plea, with its accompanying 

waiver of various constitutional rights, despite various forms of 

misapprehension under which a defendant might labor.”21 

12. Additionally, a guilty plea is akin to a confession before the 

Court that the defendant committed the crime to which he 

pleaded guilty. In Brown v. State, the defendant pleaded guilty 

to drug dealing, but then sought to retract his guilty plea in light 

of the irregularities at the OCME.22 However, the Delaware 

Supreme Court held that “[the defendant] freely admitted that 

he possessed heroin and intended to sell it. Nothing regarding 

the regrettable problems at the OCME therefore caused any 

injustice to [the defendant], who confessed that he was guilty of 

the crimes to which he pleaded guilty.”23 Accordingly, the 

Delaware Supreme Court held that the defendant was not 

entitled to withdraw his guilty plea in light of the irregularities 

at the OCME.24 

 

20 Def’s. Am. Mot. for Postconviction Relief, at 3.

21 United States v. Ruiz, 536 U.S. 622, 623 (2002); see also Brown v. State, 108 A.3d 

1201, 1205-06 (Del. 2015).

22 Brown, 108 A.3d at 1205-06.

23 Id. at 1207.

24 Id.
7

13. Moreover, the Delaware Supreme Court has held that “if a 

defendant knowingly pleaded guilty to a drug crime, he could 

not escape his plea by arguing that had he known that the 

OCME had problems, he would not have admitted to his 

criminal misconduct in possessing illegal narcotics.”25 In 

various cases before the Delaware Supreme Court, defendants 

have sought vacatur of their guilty pleas following the 

irregularities at the OCME.26 However, the Supreme Court has 

ruled in those cases, one of which which globally affirmed

forty-five denials of Motions for Postconviction Relief that 

made similar claims,

27 that the issues at the OCME are not 

grounds for vacatur of a finding of guilt after the defendants 

pleaded guilty.

28

14. In the case at bar, Defendant has offered no evidence to suggest 

that his plea was coerced. The irregularities at the Office of the 

Chief Medical Examiner involved employees removing 

controlled substances from their containers.29 No evidence has 

been found, and Defendant has alleged no facts, that would 

suggest that those involved with the irregularities at the OCME 

engaged in coercing confessions from defendants. 

Additionally, like the defendant in Brown, Defendant offered a 

knowing and voluntary guilty plea to the Court, which the 

Court may accept as a confession that he is guilty of the crimes 

to which he pleaded guilty. Further, the Delaware Supreme 

Court has held numerous times that the mishandling of drug 

evidence at the OCME does not warrant vacatur of a guilty 

plea. Accordingly, Defendant’s claim that his guilty plea 

should be vacated is without merit.

 

25 Aricidiacono v. State, 125 A.3d 677, 678 (Del. 2015).

26 See, e.g., Brown v. State, 108 A.3d 1201 (Del. 2015); Aricidiacono v. State, 125 A.3d 

677 (Del. 2015); Brewer v. State, 2015 WL 4606541 (Del. July 30, 2015). 

27 Aricidiacono v. State, 125 A.3d 677 (Del. 2015).

28 Id.

29 Id. 
8

III. CONCLUSION

Therefore, Defendant’s Amended Motion for Postconviction Relief is 

DENIED.

Defendant’s Amended Motion for Postconviction Relief30 being denied, 

Defendant’s Motion for Appointment of Counsel is DENIED AS MOOT.

IT IS SO ORDERED.

/s/Richard R. Cooch

Richard R. Cooch, R.J.

oc: Prothonotary

cc: Investigative Services

 

30 In denying Defendant’s Amended Motion for Postconviction Relief, which stated 

Defendant’s arguments for postconviction relief in both Criminal Identification Numbers 

1005013493 and 1308004342, this Order addresses both Motions for Postconviction 

Relief previously filed under those Criminal Identification Numbers.