IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

)

STATE OF DELAWARE ) ) I.D. No. 1208026120

v. ) )

DAMIEN R. TRAWICK ) )

Defendant )

Submitted: August 30 , 2014

Decided: October 27

, 2014

O n Defendant’s Motion for Postconviction Relief

. DENIED.



## ORDER

Matthew B. Frawley , Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State

Christopher D. Tease, Esquire, Wilmington, Delaware, Attorney for the

Defendant

COOCH, R.J.

This 27 th day of October

, 201 4 , upon consideration of Defendant’s

First Motion for Postconviction R elief, it appears to the Court that:

1. Defendant Damien R. Trawick pled guilty in September 2012

to one count of Possession of a Deadly Weapon by a Person

Prohibited (“PDWBPP”)

. Prior to sentencing, the State filed a motion to declare Defendant a habitual offender pu rsuant to 11

Del. C . § 4214(a) which was granted by another judge of this

Court. Defendant was sentenced in November 2012 to 8 years2 Level V followed by 6 months of Level IV work release

. 1
Since his sentencing, Defendant has filed several Motions for Correction of Sentence pursuant to Superior Court Criminal Rule 35, all of which have been denied. 2

2. Defendan t filed a pro se Motion for Postconviction Relief on October 23, 2013. Pursuant to Superior Court Criminal Rule 61(e), c ounsel was appointed and an order of briefing

established. Defendant through counsel filed the instant

Amended Motion fo r Postconvicti on Relief May 28, 2014

. Defendant’s then

- appointed counsel submitted an affidavit pursuant to Rule 61(g) on June 25. 3 The Stat e submitted a response to Defendant’s motion on August 11

. Though

Defendant had the option to, he did not file a reply.

3. Defendant’s sets forth four grounds for relief in his Motion:

1) Ineffective assistance of counsel because Defendant “talk[ed] to lawyer once in [sic] he went straight for plea before introduction;”

2) Illegal arrest because there was “no strong reason for

b othering me in the first place;”

3) Inappropriate sentence because Defendant “signed for Habitual Offender in [sic] still received 8 yrs;”

4) PDWBPP was “not a violent felony at the time of his plea, and therefore he was not being sentenced for a violent felony pursuant to 11 Del. C. 4214(a), and therefore, not facing 8 to life.” Defendant further argues that because Possession Within 300’ of a Park was no longer being considered a violent felony as of September 1, 2011, that it cannot render PDWBPP a violent felony pursuant to 11 Del. C. 4201. 4

1 See Docket #3 (Sept. 13, 2012); Docket #7 (Nov. 9, 2012).

2 See Docket #10 (June 5, 2013); Docket #12 (Aug. 26, 2013).

3 Affidavit of Raymond M. Radulski, Esquire, Docket # 25 (Jun. 25, 2014).

4 Def.’s Amended Mot. For Postconviction Relief at 1

- 2 (incorporating Defendant’s original Motion). Though Defendant refers to the crime to which he pled guilty as3 4. The State’s response addresses only the fourth claim set forth by Defendant. The State argues that at the time of Defendant’s plea, possession of a controlled substance within 300 feet of a park was still considered a violent felony pursuant to 16 Del. C

. § 4768

. 5 The State further contends that pursuant to 11 Del. C

. 211, the repeal of § 4768 several months after Defendant’s conviction does not change the status of his conviction.

5. The State also argues that the PDWBPP is, by operation of the statute, a violent felony

. The State contends that in addition to the 2011 charge of Possession of a Controll ed Substance Within 300 Feet of a Park, the status of which Defendant disputes, Defendant has several other violent felony convictions that could form the basis for the PDWBPP charge to be considered a violent felony. 6

6. This Court finds that Defendant’s f irst claim for relief is without merit. To successfully articulate an ineffective assistance of counsel claim, a claimant must demonstrate: 1) that counsel’s performance was deficient, and 2) “that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial

. ” 7 To prove counsel’s deficiency, a Defendant must show that counsel’s representation fell below an objective standard of

reasonableness. 8 Moreover, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. 9 “[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistan ce.” 10

Possession of a Firearm by a Person Prohibited, or “PFBPP,” for clarity, this Court will continue to use the acronym “PDWBPP.”

5 See State’s Resp. at 2. The previous version of 16 Del. C

. § 4 768 prohibiting distribution, delivery, or possession of a controlled substance within 300 feet of a park was effective until August 31, 2011.

6 See State’ s Resp. at 2.

7 Albury v. State , 551 A.2d 53, 60 (Del. 1988) (citing Hill v. Lockhart , 474 U.S. 52 (1985)) (applying second prong of Strickland analysis in the context of a guilty plea); See

also Strickland v. Washington , 466 U.S. 668, 688 (1984 ).

8 Albury

, 551 A.2d at 60

. 9 Wright v. State , 671 A.2d 1353, 1356 (Del. 1996).

10 Strickland

, 466 U.S. at 689.4 7. Defendant’s sole contention that he only spoke with appointed

counsel one time before counsel is conclusory and clearly do es not satisfy either prong of Strickland

. Defendant does not set forth any facts in his motion to support his claim and the record

contradicts Defendant’s contention

. Defendant’s previous counsel stated at the plea colloquy that he had reviewed the plea

and the Truth

- in

- Sentencing form with Defendant. 11 Counsel and the State jointly requested a pre

- sentence investigation

when the plea was entered. 12 Finally, Defendant’s previous

counsel states in his affidavit that counsel met with Defendant at least twice, and that substitution counsel was present at Defendant’s sentencing.

8. Defendant has neither shown any deficiency on the part of counsel, nor has he shown that but for counsel’s alleged errors, he would have insisted on going to trial. The record simply does not reflect that counsel was deficient, and the quantity of

Defendan t’s previous counsel’s meetings with Defendant is not, in itself, sufficient to make out a claim for ineffective assistance

of counsel.

9. Defendant’ s second claim is that his arrest was illegal

. D efendant argues that there was “no strong reason for botherin g me in the first place.” 13 This Court finds that Defendant cannot bring a claim based on illegal arrest because Defendant entered into a guilty plea. A guilty plea entered voluntarily “constitutes a waiver or any alleged errors or defects occurring prior to the entry of the plea.” 14 This Court found at the plea colloquy that Defendant’s plea was knowingly, voluntarily, and intelligently

entered

. 15 As a result of Defendant’s voluntary guilty plea, this

Court finds that Defendant is foreclosed from bringing any

11 See Def.’s Amended Mot. for Postconviction Relief, Exhibit C at 3.

12 See Affidavit of Raymond M. Radulski, Esquire, Docket # 25 (Jun. 25, 2014).

13 See Def.’s Mot. for Postconviction Relief at 3 (incorporated

14 Bentley v. State , 27 A.3d 550, 2011 WL 3793779, at *2 (Del. 2011) (TABLE) (citing

Downer v. State , 543 A.2d 309, 311

- 13 (Del. 1988)).

15 See Def.’s Amended Mot. f or Postconviction Relief, Exhibit C at 11.5 claims of relief based on illegal arrest, or any other errors that occurred prior to the entry of his guilty plea

. 16

10. Defendant’s third cl aim for relief is that his sentence is

“ inappropriate. ” Specifically, Defendant argues that he did not

oppose his Habitual Offender status, but “still” received eight years at Level V at sentencing

. This argument again, is conclusory and fails to persuade. “In the absence of clear and convincing evidence to th e contrary, [Defendant] is bound by

the answers on the Truth

- in

- Sentencing Guilty Plea Form and by his sworn testimony prior to the acceptance of the guilty plea.” 17 The record reflects that the Defendant understood the terms of the plea, including the requ irement for a minimum mandatory sentence of eight years at Level V. 18 Defendant sets forth no evidence to the contrary in the instant Motion. This Court finds Defendant’s argument that his sentence was inappropriate to be without merit.

11. Defendant’ s final claim is that PDWBPP was not a violent felony at the time of his plea. Defendant argues that his most

recent conviction for Possession of a Controlled Substance

Within 300 Feet of a Park is not a violent felony because the statute rendering that crime a violent felony had been repealed on September 1, 2011. It follows, then, according to Defendant, that because his most recent possession charge is not a violent felony, the charge cannot render PDWBPP a violent felony. 19

12. This Court finds that Defendant’s argument is flawed. As the State suggests, t he sentence in this case was indeed appropriate. In this instance, PDWBPP was properly considered a Class D felony because

, pursuant to 11 Del. C. § 1448(a)(1) and (c),

16 Even if Defendant were not precluded from challenging this alleged error, “[a]n illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a

defense to a valid conviction.” United States v. Crews , 445 U.S. 463, 474 (1980) (internal citations omitted). This Court declines to discuss the merits of this claim further.

17 Somerville v. State, 703 A.2d 629, 632 (Del. 1997)

18 See Def.’s Amended Mot. f or Postconviction Relief, Exhibit C.

19 See Def.’s Amended Mot. for Postconviction Relief at 1.6 Defendant was in possession of a firearm while being a “person prohibited” from such possession. 20

13. Moreover, PDWBPP was properly considered a violent felony here because Defendant’s 2011 charge of Possession of a Controlled Substance Within 300 Feet of a Park, contrary to

Defendant’s position , is indeed a violent felony. 21 Though the statute creating the possession charge for which Defendant was convicted was repealed in September of 2011, Defendant was

convicted prior to the repeal of the statute

. 22 In sum, p ursuant to

11 Del. C . § 211, the repeal of § 4768 several months after

Defendant’s conviction leaves Defendant’s conviction

undisturbed. 23

14. Finally, this Court finds that eight years at Level V supervision

was the proper sentence. The minimum mandatory sentence in

this case was five years and the maximum was eight years

. 24 As a result of Defendant’s habitual offender status, couple d with

the fact that the instant offense was Defendant’s fourth violent

20 See 11 Del. C. § 1448(a)(1) (prohibiting persons who have been convicted of a felony in this State from “purchasing, owning, possessing or controlling adeadly weapon . . . within the State.”); See also 11 Del. C. § 1448(c) (“Possession of a deadly weapon by a

person pro hibited is a class F felony, unless said deadly weapon is a firearm or

ammunition for a f irearm , and the violation is 1 of paragraphs (a)(1)

- (8) of this section, in which case it is a class D felony.”).

21 See 11 Del. C. § 4201(c) prior to Sept. 1, 2011 ( making Possession of a Controlled

Substance Within 300 Feet of a Park under 16 Del. C. § 4768 a violent felony).

22 Defendant was convicted of Possession of a Controlled Substance Within 300 Feet of a Park in May 2011 and the statute was not repealed until September 2011.

23 See 11 Del. C. § 211 (stating that the repeal of a statute creating a criminal offense does not “have the effect of releasing or extinguishing any penalty . . . incurred under the statute . . . .”).

24 See 11 Del. C

. § 1448(e)(1)(b) (setting mandatory minimum sentence at five years for persons who have committed a violent felony “within 10 years of the date of conviction . . . or date of termination of all periods of incarceration or confinement imposed pursuant to said conviction, wh ichever is the later date[.]” ; 11 Del. C

. § 4201(c) (designating Possession of a Deadly Weapon by Persons Prohibited as a violent felony ); 11 Del C

. § 4205(b)(4) (setting eight years of Level V incarceration as maximum for class D felonies).7 felony, the Court was required to sentence Defendant to a sentence of eight years. 25

Therefore, Defendant’s Motion for Postconviction Relief is DENIED.

IT IS SO ORDERED.

______________________ Richard R. Cooch, R.J.

c c: Prothonotary Investigative Services Matthew B. Frawley , Esquire Christopher D. Tease, Esquire

25 See 11 Del. C.§ 4214(a) (“[A]ny person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum provided elsewhere in this title . . . this minimum provision shall apply only when the 4th or subseq uent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.”