                                    SUPERIOR COURT
                                        OF THE
                                  STATE OF DELAWARE

T. HENLEY GRAVES                                       SUSSEX COU NTY C OUR THO USE
      RESIDENT JUDGE                                              1 THE CIRCLE, SUITE 2
                                                                 GEORGETOWN, DE 19947
                                                                           (302) 856-5257


                                     July 1, 2014



N 440 - State Mail                           Robert Robinson, Esquire
Mr. Marcus Dennis                            Office of the Public Defender
SBI #003                                     14 The Circle, 2 nd Floor
Sussex Correctional Institution              Georgetown, DE 19947
P. O. Box 500
Georgetown, DE 19947

Alexander Funk, Esquire                       Melanie Withers, Esquire
Curley & Benton                               Department of Justice
20 Beiser Boulevard, Suite 202                114 E. Market Street
Dover, DE 19904                               Georgetown, DE 19947

RE:   State vs. Marcus Dennis
      ID #1109010347 (R-1)
      Motion for Postconviction Relief

      Date Submitted: June 12, 2014

Dear Mr. Dennis & Counsel:

      On October 21, 2013 Marcus Dennis (“Dennis”) filed a Motion for

Postconviction Relief pursuant to Superior Court Criminal Rule 61. (“Rule 61").

      Alexander Funk, Esquire (“Mr. Funk”) was appointed to represent Dennis. Mr.

Funk requested additional time to review investigation and amend the Motion. The
extension of time was granted.



      On May 14, 2014 Mr. Funk filed a Motion to Withdraw pursuant to Rule

61(e)(2). By correspondence to the Court and to Dennis, Mr. Funk made Dennis

aware that he had thirty (30) days to respond, in writing, to the Motion to Withdraw.

Dennis has not filed anything with the Court.

                                 BACKGROUND

      Dennis and his girlfriend, Tonya Carpenter, (“Carpenter”), were charged with

a home invasion and robbery of a Ralph Short, age 78, and his wife, Linda Short, age

63. He was convicted following a jury trial on March 12, 2012 of Robbery in the

First Degree, Burglary in the Second Degree, and Wearing a Disguise During a

Felony. He was sentenced to a total of 30 years Level V suspended after 11 years and

the successful completion of the Key Program for Level 4 Crest and 8 years of Level

3.

      That Court notes that upon being arrested and learning that his co-defendant,

Carpenter, had admitted that she and Dennis had robbed the victims, Dennis then

confessed.

                           DIRECT APPEAL ISSUES

      Dennis claimed prosecutorial misconduct involving the dropping of charges
against Mr. Short at the beginning of his trial.1 The Supreme Court found no

prosecutorial misconduct.2

      Dennis claimed that the prosecutor deliberately elicited false identification

evidence from Mr. Short.3 At trial, Mr. Short testified in error that he had previously

identified Dennis as the robber.4 The immediate defense objection was sustained and

the jury was instructed to disregard the erroneous testimony.5 The Supreme Court

found that Dennis suffered no prejudice.6

      Dennis claimed that the arrest and search warrants lacked probable cause.7

Upon a review of the search warrant affidavit and arrest warrant affidavit, the

Supreme Court found both to contain probable cause.8

      The Defendant claimed that the Sentencing Court’s use of the SENTAC

aggravator “vulnerability of the victim” was inappropriate because the victim’s age




      1
          Dennis v. State, 2013 WL 1749807, at *2 (Del. Apr. 23, 2013) (TABLE).
      2
          Id.
      3
          Id.
      4
          Id.
      5
          Id.
      6
          Id.
      7
          Id. at *3.
      8
          Id.
was an element in his robbery conviction.9 The Supreme Court found no merit as to

this claim.10

       The pro se Postconviction Motion of Dennis raises the following claims:

       (1) The search and arrest warrants did not contain probable cause. Therefore,

all evidence should have been suppressed;

       (2) There was no suppression motion filed by trial counsel;

       (3) Trial counsel failed to investigate the reasons for the State’s dismissal of

the charges against the victim. The dismissal of these charges were not raised to

attack the victim’s credibility;

       (4) Trial counsel did not raise mitigating factors at sentencing;

       (5) The use of the “vulnerability of the victim” at sentencing was a “doubling

up” because age was a consideration in the robbery charge;

       (6) Prosecutorial misconduct in regard to the victim’s identification testimony

which was stricken from the record. Prosecutorial misconduct in regard to the

Attorney General’s Office dismissal of the victim’s open charges occurring at the start

of Dennis’ trial.

                     MR. FUNK’S RULE 61(e)(2) MOTION

       As to the matter of the lack of probable cause, Mr. Funk’s position is that the

       9
           Id.
       10
            Id.
search warrant affidavit provided sufficient information for a magistrate to have

found probable cause. The search provided the evidence that involved Dennis to the

robbery, and therefore, taking him into immediate custody pending subsequent

warrants was legal.

      As to the failure to file a suppression motion, Mr. Funk notes that same would

have been unsuccessful based on probable cause and evidence linking Dennis to the

home invasion.

      As to the “vulnerability of the victim,” Mr. Funk notes this is a SENTAC

sentencing aggravator.

      As to the prosecutor misconduct claim by eliciting a false identification, Mr.

Funk notes that the trial record does not support a claim of prosecutorial misconduct.

      Mr. Funk concluded that there were no meritorious Rule 61 claims.

                                    DECISION

      (1) Probable cause is contained in the affidavits, but more importantly, is the

fact that the Supreme Court has adjudicated this complaint on direct appeal and

denied same. It is procedurally barred pursuant to Rule 61(i)(4).

      (2)    Trial counsel was not derelict in not filing a suppression motion. Also,

the Supreme Court’s decision finding probable cause means there can be no

prejudice.

      (3) Trial counsel was aware of the charges against Mr. Short being dismissed
and chose not to explore this matter on cross examination. The Court cannot find

that this was objectively erroneous under Strickland v. Washington.11 Mr. Short’s

testimony was that a home invasion occurred, he was hog-tied and prescription pills

were stolen. He did not link Dennis to the crime. That the crime occurred was not

in dispute, so a credibility attack on Mr. Short would have basically been an exercise

in futility. Nor could there be any prejudice to Dennis arising from the failure to

cross examine Mr. Short on his charged, but dismissed criminal offenses. Dennis

fully confessed to the entire episode. Dennis put himself inside the victim’s home

while wearing a mask and possessing what was said to be a BB gun. This claim has

no merit.

      (4) Trial counsel did raise mitigating factors at sentencing. Specifically, he

noted that Dennis took responsibility for his conduct, he was a “hands on”

employable carpenter, that his addiction was a result of a workplace injury

(prescription pills) and that Dennis did not use a working firearm, but a BB gun.

Counsel noted the positive reports from his family. There is no basis for this

conclusory complaint. It is denied.

      (5) The “vulnerability of the victim” was adjudicated in the Supreme Court and

is therefore procedurally barred pursuant to Rule 61(i)(4).

      (6) The mater of Mr. Short’s “identification” testimony was also adjudicated

      11
           466 U.S. 668 (1984).
by the Supreme Court and it is procedurally barred pursuant to Rule 61(i)(4). Finally,

the Supreme Court found no prosecutorial misconduct arising from the charges being

dropped against the victim. Therefore, this claim has been adjudicated and is

procedurally barred pursuant to Rule 61(i)(4).

      Mr. Funk’s motion to withdraw is granted.              The pending Rule 61

Postconviction Motion is hereby denied.

      IT IS SO ORDERED.

                                       Very truly yours,

                                       /s/ T. Henley Graves

                                       T. Henley Graves

THG/ymp

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