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

On 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 27th day of October, 2014, upon consideration of Defendant’s 

First Motion for Postconviction Relief, 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 pursuant to 11 

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

Court. Defendant was sentenced in November 2012 to 8 years 
2

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. Defendant filed a pro se Motion for Postconviction Relief on 

October 23, 2013. Pursuant to Superior Court Criminal Rule 

61(e), counsel was appointed and an order of briefing 

established. Defendant through counsel filed the instant 

Amended Motion for Postconviction Relief May 28, 2014.

Defendant’s then-appointed counsel submitted an affidavit 

pursuant to Rule 61(g) on June 25.3 The State 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 

bothering 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 as 
3

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 Controlled 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 first 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 assistance.”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. § 4768 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 does

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 

Defendant’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. 

Defendant argues that there was “no strong reason for bothering 

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. for 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 claim 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 the 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 requirement 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, the 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. for 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, pursuant 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, coupled 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 prohibited is a class F felony, unless said deadly weapon is a firearm or 

ammunition for a firearm , 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, whichever 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.

cc: 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 subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.”