IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
§ Crim. ID No. 1406020386
va § Cr. A. Nos. IN 14-07-0530, etc.
BERNARD ELLERBE, §
Defendant. §

Subrnitted: August l l, 2017
Decided: Septernber 26, 2017

ORDER DENYING MOTION FOR POSTCONVICTION RELIEF

This 26th day of September, 2017, upon consideration of the Defendant
Bernard Ellerbe’s (“Ellerbe”) Motion for Postconviction Relief (D.I. 65) and the
record in this matter, it appears to the Court that:

(l) On June 25, 2014, Task Force Officer Mark Grajewski, Task Force
Offlcer Michael Cornbrooks, and Special Agent Dave Hughes met in a Ruby
Tuesday restaurant’s parking lot, located at 928 Bear Corbitt Road, Bear, Delaware,
to discuss a surveillance operation.l Unrelated to their operation, the officers noticed
a White car, occupied by two individuals, pull into the parking lot. Moments later a

black Chevy Malibu entered into the parking lot, circled around as if looking for

 

1 Jan. 29, 2015 Tr. Test. at 57-59.

someone, then pulled directly next to the white car.2 Each car’s driver’s window
was rolled down and the drivers engaged in a hand-to-hand exchange3 The white
car drove away, while police observed the black car’s driver _ later identified as the
Defendant, Ellerbe - counting money.4 At that point, officers suspected a drug
transaction had occurred and decided to stop the black car for further investigation5
The officers, each in their own unmarked vehicle, followed Ellerbe’s car out of the
parking lot.6

(2) Officer Combrooks initiated his emergency lights and Ellerbe pulled
over onto the road’s shoulder.7 But as soon as Officer Cornbrooks approached the
car, Ellerbe sped away.8

(3) Ellerbe then led police on a high speed chase that ultimately resulted in
him losing control of his car and striking a tree.9 Officers removed Ellerbe, who was

not seriously injured, and found a ripped bag containing twenty bundles, or 260

 

2 Id. at 61-63.
3 Ia'. at 63.

4 Ia'. at 64.

5 Id. at 64-65.
6 Ia'.

7 Id. at 67, 99.
8 Id. at 100.

9 Ia'. at 108-115.

individual bags, of heroin on his lap.'o Ellerbe also had approximately $12,000 in
cash in his pocket.ll

(4) Ellerbe was indicted by a grand jury on eleven charges related to drug
possession and police evasion. A two-day jury trial was held in this Court in January
2015. Michael C. Heyden, Esquire (“Heyden”) represented Ellerbe throughout the
trial. The jury found Ellerbe guilty of Drug Dealing, Aggravated Possession,
Reckless Endangering in the First Degree (Two Counts), Disregarding a Police
Officer’s Signal, Possession of Drug Paraphemalia, and Reckless Driving.12 After
a pre-sentence investigation was prepared, the Court sentenced Ellerbe to eighteen
years of imprisonment followed by diminishing levels of partial confinement and

probationary supervision.13

 

'0 Ia'. at 116-117.
" Id.

12 See DEL. CODE ANN. tit. l6, § 4752(2) (2014) (drug dealing), id. at § 4752(4) (aggravated
possession), id. at tit. ll § 604 (reckless endangering in the first degree, two counts), id. at tit. 21,
§ 4103(b) (disregarding a police officer’s signal), id. at tit. 16 § 477l (possession of drug
paraphernalia), and id. at tit. 21 § 4175(a) (reckless driving).

On the first day of trial, the State entered a nolle prosequi on five additional charges
brought in the June 26, 2014 indictment See Def.’s Mot. at 2 n. 7 (charges included DEL. CODE
ANN. tit. ll § 811 (criminal mischief), ia'. at tit. l6, § 4763(a) (illegal possession of a controlled
substance), id. at tit. 21, § 4172A (malicious mischief by motor vehicle), id. at tit. 21, § 2118
(failure to have insurance identification in possession), and id. at § 4168(a) (unreasonable speed)).

13 Sentencing Order, State v. Bernard Ellerbe, ID Nos. 1406020386 and 1306016966 (Del.
Super. Ct. June 3, 2015).

(5) Heyden filed a timely Notice of Appeal to the Delaware Supreme
Court on Ellerbe’s behalf, but it was voluntarily dismissed in June 2016,14 so that
Ellerbe’S new attorney, Patrick J. Collins, Esquire, could file his appeal.15 In
September 2015, Ellerbe voluntarily dismissed that appeal.

(6) Ellerbe then filed his first Motion for Postconviction Relief (the “First
Motion”) in June 2016, alleging ineffective assistance of counsel and seeking

vacatur of his conviction and a new tria1.16

(7) The Court denied the First Motion in August 2016.17 And the Delaware
Supreme Court affirmed this Court’s decision earlier this year.18

(8) Ellerbe filed this second Motion for Postconviction Relief (the “Second
Motion”) several months later. He says he is entitled to postconviction relief for any
one of six reasons: (i) the State did not have a reasonable, articulable suspicion for
the traffic stop that culminated in his arrest; (ii) the police’s pat-down search of
Ellerbe and seizure of $12,000 dollars from his pants amounted to an

unconstitutional search and seizure; (iii) expert testimony from a forensic chemist

 

14 Not. of Dismissal, Ellerbe v. State, No. 324, 2015 (June 26, 2015).

15 Not. of Appeal, Bernara’ Ellerbe v. Stale, No. 330, 2015 (Del. filed June 25, 2015).
16 State v. Ellerbe, 2016 WL 4119863 (Del. Super. Ct. Aug. 2, 2016).

17 Id.

18 Ellerbe v. State, 161 A.3d 674 (Del. 2017).

_4_

was not based on specialized knowledge; (iv) expert testimony from the forensic
chemist on the weight of the heroin seized from Ellerbe was flawed; (v) testimony
regarding accident reconstruction was flawed; and (vi) because the testimony from
the forensic chemist on the weight of the heroin was flawed, Ellerbe was illegally
convicted of drug dealing and aggravated possession without proof of quantity.

(9) The Court has engaged in the preliminary consideration of Ellerbe’s
application required under Superior Court Criminal Rule 61(d). The Court finds
that, consistent with Rules 61(i)(2) and (d)(5), his should be SUMMARILY
DISMISSED because it is an unexcused successive motion.

(10) When considering applications for postconviction relief under its
criminal rules, this Court addresses any applicable procedural bars before turning to
the merits.19 This policy protects the integrity of the Court’s rules and the finality of
its judgments Addressing the merits of a case that does not meet procedural

requirements effectively renders our procedural rules meaningless20

 

'9 See, e.g. , Ayers v. sze, 802 A.2d 278, 281 (Del. 2002). See also Baizey v. Sm¢e, 588 A.2d
1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reea’,
489 U.s. 255 (1989)).

20 See Smre v. Chao, 2006 WL 2788180, at *5 (Del. super. Ct. sept 25, 2006) (“To protect
the integrity of the procedural rules, the Court should not consider the merits of a postconviction
claim where a procedural bar exists.”); State v. Jones, 2002 WL 31028584, at *2 (Del. Super. Ct.
Sept. 10, 2002) (citing State v. Gattis, 1995 WL 790961, at *3 (Del. Super. Ct. Dec. 28, 1995))
(same).

( 1 1) Ellerbe’s motion for postconviction relief is controlled by the limitation
on successive motions found in Rule 61(i)(2).21
(12) Ellerbe posits that Criminal Rule 6l’s procedural bars to successive
claims are inapplicable to the Second Motion. But he cites to a previously repealed
version of the salient Rule 61 provisions to support his argument That iteration
stated that Criminal Rule 61 ’s procedural bars were inapplicable to “colorable claims
that there has been a miscarriage of justice because of a constitutional violation[.]”22
This Court’s criminal rules were amended on June 4, 2014, to omit that provision.
Now, Rule 61 reads: “[B]ars to relief . . . shall not apply either to a claim that the
court lacked jurisdiction or to a claim that satisfies the pleading requirements of
subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule.”23
(13) Criminal Rule 61(d)(2) provides that:
[a] second or subsequent motion under this rule shall be
summarily dismissed, unless the movant was convicted
after trial and the motion either:
(i) pleads with particularity that new evidence exists that
creates a strong inference that the movant is actually

innocent in fact of the acts underlying the charges of
which he was convicted; or

 

21 Superior Court Criminal Rule 61(i)(2) states in relevant part: “Successive motions.--(i) No
second or subsequent motion is permitted under this Rule. . .”

22 Super. Ct. R. Crim. P. 61(i)(5) (2013).

23 super. Ct. R. Crim. P. 61(i)(5) (2017).

_6_

(ii) pleads with particularity that a claim that a new rule
of constitutional law, made retroactive to cases on
collateral review by the United States Supreme Court
or the Delaware Supreme Court, applies to the
movant’s case and renders the conviction or death
sentence invalid.24

(14) Ellerbe does not claim that this Court lacked jurisdiction,25 that “new

6

evidence exists that creates a strong inference” of actual innocence,2 or that “a new

rule of constitutional law, made retroactive to cases on collateral review by the
United States Supreme Court or the Delaware Supreme Court, applies to [his] case
and renders [his] conviction . . . invalid.”27 Instead, Ellerbe complains of alleged
miscarriages of justice grounded in evidence presented at trial or then-extant
constitutional law. As such, this second Rule 61 motion is procedurally barred by

Criminal Rules 61(d)(2) and (i)(2).28

 

24 Super. Ct. R. Crim. P. 61(d).

25 Del. Super. Ct. Crim. R. 61(i)(5) (“The bars to relief in paragraphs (1), (2), (3), and (4) of
this subdivision [i] shall not apply either to a claim that the court lacked jurisdiction or to a claim
that satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this
rule.”).

26 Del. Super. Ct. Crim. R. 61(d)(2)(i). See also id. at (i)(5).
27 Id. ar (d)(z)(ii). see also id. at (i)(s).

28 The Court must apply the current Rule 61 provisions to all “postconviction motions filed
on or after” June 4, 2014. See Order Amending Rule 61 of the Superior Court Rules of Criminal
Procedure (Del. Super. Ct. June 4, 2014). (“This amendment shall be effective on June 4, 2014
and shall apply to postconviction motions filed on or after that date.”); see also Jones v. State,
2015 WL 6746873, at *1 n.4 (Del. Nov. 4, 2015) (noting that the “the new Rule 61 applies to all
‘postconviction motions filed on or after’ June 4, 2014”).

_7_

(15) Having engaged in the preliminary consideration of his motion
required under Rule 61(d), the Court finds that “it plainly appears from the motion
for postconviction relief and the record of prior proceedings in the case that [Ellerbe]
is not entitled to relief.”29 Accordingly, Ellerbe’s Motion for Postconviction Relief
is SUMMARILY DISMISSED.

SO ORDERED this 26th day of September, 2017.

Izw¢_;£.d_>

Paul R. Wallace, Judge

Original to Prothonotary

cc: Mark A. Denney, Jr., Deputy Attorney General
Patrick J. Collins, Esquire
Mr. Bernard Ellerbe

 

29 Del. Super. Ct. Crim. R. 61 (d)(5) (“Summary dismissal If it plainly appears from the

motion for postconviction relief and the record of prior proceedings in the case that the movant is
not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant
to be notified.”).

_8_

