IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE )

v. § I.D.#1411015404
JAMAAL DEARRY, §
Defendant. §

Submitted: April 24, 2017
Decided: July 21 , 2017

Upon Defendant’s Motion for Postconviction Relief: DENIED

This 21st day of July, 2017, upon consideration of Defendant’s Motion for
Postconviction Relief (the “Motion”) under Superior Court Criminal Rule 61
(“Rule 61”) and the record in this case, it appears to the Court that:

FACTUAL AND PROCEDURAL BACKGROUND

1. Jamaal Dearry Was indicted in December 2014, along With several co-
defendants, for racketeering and conspiracy, as Well as various firearm and drug
charges based on evidence found during a search of Dearry’s residence at 51
Brookside Boulevard, NeWark, Delaware (the “Residence”).l According to the
affidavit of probable cause supporting Dearry’s arrest Warrant, the search of the
Residence Was conducted pursuant to a search Warrant.2 At the time of the search,

keys Were found in Dearry’s front pocket that opened two safes in his bedroom.

 

1

D.I. 2.
2 In his Motion, Dearry initially acknowledges the officers had a search Warrant for the premises,
but later argues otherwise. See D.I. 24.

The safes contained significant quantities of heroin, methamphetamine, marijuana,
oxycodone, and crack cocaine, two loaded handguns, and a picture of Dearry and
an unknown woman. The magazine of one of the handguns bore Dearry’s
fingerprint Dearry jointly was charged with several co-defendants who were
apprehended and indicted for racketeering based on an investigation dubbed
“Operation Son Sun.”

2. Donald R. Roberts, Esquire (“Trial Counsel”) represented Dearry
throughout the case. Dearry’s criminal record included past convictions for drug
and gun-related felonies and, at the time of his arrest, he was on probation for two
such charges. Five months after he was indicted, Dearry pleaded guilty to one
count of Possession of a Firearm by a Person Prohibited (“PFBPP”), one count of
Possession of a Firearm during the Commission of a Felony (PFDCF”), and one
count of Drug Dealing Tier 2.3

3. In connection with his plea, Dearry signed a Truth-in-Sentencing
Guilty Plea form in which he (i) denied he was forced to enter into the plea, and
(ii) acknowledged he was waiving certain constitutional rights, including the right
to proceed to trial and force the State to prove the charges against him. Dearry also
acknowledged on the form that he was satisfied with his lawyer’s representation

and that he had been advised fully of his rights.

 

3D.i. 13.

4. Before accepting the plea, the presiding judge engaged in a colloquy
with Dearry regarding his decision to plead guilty and the rights he was waiving by
so doing. During that hearing, Dearry acknowledged signing the Truth-in-
Sentencing form and confirmed he reviewed the form with Trial Counsel and
truthfully answered the questions on it.4 The presiding judge reviewed with Dearry
the three charges to which he was pleading guilty. Dearry admitted committing
each of those crimes.5 The judge also reviewed with Dearry the constitutional
rights he was waiving by pleading guilty, as well as the potential sentence he was
facing as a result of the guilty plea, which was 15 to 55 years at Level V.6 Dearry
agreed that he accepted the guilty plea, at least in part, to avoid the life sentence he
would have faced if he was convicted at trial on all counts in the indictment7 The
presiding judge then engaged in the following discussion with Dearry:

THE COURT: Now, this is very important So much of what
you’re doing now is important, Mr. Dearry, but let’s focus closely on

this for a moment. Once this plea is accepted today, it is going to be

almost impossible for you to find a way back out of it. Do you
understand that?

THE DEFENDANT: Yes, sir.

>l< >l< >l<

 

4 State v. Dearry, ID No. 411015404, at 7 (Del. Super. May 12, 2015) (TRANSCRIPT).

5 ld. ats-1

6 Id. at 9-10.

7 Id. at 4, 10. Had he been convicted at trial, Dearry likely would have been declared and
sentenced as a habitual offender. See id. at 4.

THE COURT: And another especially important question is,
are you satisfied with the work that Mr. Roberts has performed for
you as your lawyer?

THE DEFENDANT: Yes, sir.

THE COURT: And are you satisfied that entering this plea is a
knowing, voluntary, and intelligent thing that you are doing?

THE DEFENDANT: Yes, sir.

>l< >|< >l<

THE COURT: All right. If you’ve got any problems with Mr.
Roberts, you’ve got the Court’s undivided attention right now. Once
this plea is entered, the Court is not going to - - the Court is going to
be skeptical of you complaining that Mr. Roberts somehow has let
you down or put pressure on you or anything like that. Do you follow
me?

THE DEFENDANT: Yes, sir.
THE COURT: So, is there anything at all that we need to talk

about concerning your feelings toward Mr. Roberts?

THE DEFENDANT: No, sir.
THE COURT: So, as far as you can tell, Mr. Roberts seems to

have done as best a job as he could have in this situation?

THE DEFENDAer Yes, Sir.8

The judge thereafter accepted Dearry’s plea, holding it was knowing, intelligent,

and voluntary.9

5.

Dearry was sentenced on January 22, 2016 as follows: (i) as to

PFBPP, ten years at Level V; (ii) as to PFDCF, five years at Level V, and (iii) as to

 

81¢1. at9-ii.
91¢1. arii.

Drug Dealing, five years at Level V, suspended for 18 months at Level III.10 In
other words, Dearry’s unsuspended Level V sentence was the minimum sentence
required by Delaware law.

6. Dearry filed this Motion for Postconviction Relief on January 19,
2017.ll In it, he alleges he was entitled to relief because Trial Counsel was
ineffective for failing to file a motion for relief from prejudicial joinder and a
motion to suppress evidence. Due to disability, Trial Counsel was unable to
respond to the Motion by affidavit12 The State filed its response on April 4, 2017,
arguing Dearry’s claims procedurally are barred and fail on their merits.13 Dearry
replied to the State’s argument on April 24, 2017,14
ANALYSIS

A. Procedural bars to Dearry’s claims

7. Before addressing the merits of any claim for postconviction relief,
this Court first must determine whether the motion procedurally is barred under
Rule 61.15 A motion for postconviction relief may be barred for timeliness and

repetition, among other things. A motion filed under Rule 61 is untimely if it is

 

10 State v. Dearry, ID No. 1411015404 (Del. Super. Jan. 22, 2016) (SENTENCING ORDER).
Dearry’s sentence was effective November 24, 2014.
11
D.I. 24.
12 D.i. 3i.
13 D.i. 32.
'4 D.i. 34.
15 Baz`ley v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del.
1990).

filed more than one year after a final judgment of conviction.16 A defendant also is
barred from filing successive motions for postconviction relief.17 The rule further
prohibits motions based on any ground for relief that was not asserted in the
proceedings leading up to the judgment of conviction, unless the movant
demonstrates “cause for relief from the procedural default” and “prejudice from
violation of the movant’s rights.”18 Finally, the rule bars consideration of any
ground for relief that previously was adjudicated in the case.19

8. Dearry’s Motion was filed less than a year after his sentence became
final and it therefore is timely. The Motion alleges ineffective assistance of
counsel, which could not be raised at any earlier stage in the proceedings20
Although the State argues Dearry’s Motion is barred because his counsel did not
move to sever Dearry’s charges or suppress evidence during the proceedings
leading up to his conviction, that argument misconstrues Rule 61(i)(3). The fact
that counsel did not raise an argument or objection during the proceedings does not

bar a defendant from alleging counsel’s failure amounted to ineffective assistance,

 

16 super. Ci. Crim. R. 61(1)(1).

17 Id. 61(i)(2); see id. 6l(d)(2)(i)-(ii) (regarding the pleading requirements for successive
motions).

111 1a 61(1)(3).

19 Id. 61(1)(4).

111 Whmle v. Szare, 138 A.3d 1149 (Dei. 2016); state v. Evan-Mayes, 2016 wL 4502303, at *2
(Del. Super. Aug. 25, 2016).

and ineffective assistance claims may not be raised until postconviction
proceedings21
B. Dearry has not shown Trial Counsel Was ineffective.

9. Dearry contends Trial Counsel was ineffective because he failed to (i)
move to sever Dearry’s charges from his co-defendants’ charges for purposes of
trial, and (ii) file a motion to suppress the evidence obtained in the search of
Dearry’s residence. As to prejudicial joinder, Dearry argues his joinder with the
other defendants, who were implicated as co-conspirators through wiretaps, video
surveillance, or confidential informants, was prejudicial because the State offered
no evidence linking him to any involvement in the conspiracy or racketeering22
Dearry argues none of the investigators knew who he was and the State had no
evidence linking him to the racketeering investigation or charges. For that reason,
Dearry argues, the State could not establish that he was associated in fact with his
co-defendants and his joinder under Rule 8 was erroneous. Severance would have
been required, Dearry contends, because there was “an absence of substantial

independent competent evidence of his guilt” and the State would have had

 

21 see, e.g. Malloy v. smie, 2011 WL 1135107,31*2(De1. Mar. 28,2011)(¢113110115 omitted)
(“Claims of ineffective assistance of counsel, however, are excused from [the Rule 61(i)(3)]
requirement because these claims generally cannot be raised at trial or on direct appeal.
Moreover, claims of ineffective assistance of counsel, if substantiated, can establish cause for a
defendant’s failure to raise his claims sooner.”); Brodie v. State, 2011 WL 927673, at *1 (Del.
Super. Mar. 17, 2011) (same); State v. Ross, 2004 WL 2735515, at *2 (Del. Super. Nov. 22,
2004) (same).

22 D.i. 24.

difficulty segregating its evidence “as between the co-defendant and the
Movant.”23 With respect to the motion to suppress, Dearry asserts the warrant that
led to the search of the Residence “could only have been for Kenneth Hall’s [a co-
defendant’s] arrest,” because the police lacked evidence of any link between
Residence and the racketeering investigation Dearry therefore contends the search
exceeded the scope of the warrant because Hall was not in the Residence and the
police should have left the Residence immediately upon learning Hall was not
there. Dearry also contends his room was a “separate and distinct sublet dwelling”
for which he paid rent, and the police were not authorized to search it. Dearry
therefore argues Trial Counsel was ineffective in failing to move to suppress the
evidence obtained during the search.

10. To prevail on a postconviction claim for ineffective assistance of
counsel in the context of a guilty plea, a defendant must establish that (i) counsel’s
representation fell below an objective standard of reasonableness, and (ii) but for
counsel’s unprofessional errors, there is a reasonable possibility the defendant
would not have pleaded guilty and instead would have insisted on going to trial.24

- ~ . 25
There is a strong presumption that counsel’s representation was reasonable

 

23
161
24Albury v. smie, 551 A.2d 53, 59 (Dei. 1988).
25 Wrigh¢v. smie, 671 A.2d 1353, 1356 (Dei. 1996).

8

Accordingly, a defendant must make specific allegations of actual prejudice and
substantiate them; vague allegations or conclusory statements will not suffice.26

11. As to Trial Counsel’s failure to seek relief from prejudicial joinder,
Dearry has not shown that, but for that alleged error, he would not have pleaded
guilty. Although he was charged with racketeering and conspiracy, he did not
plead guilty to those charges. Had Dearry’s case been severed for trial, the State
still would have presented the evidence obtained during the search of his
Residence, which formed the basis for the majority of the charges against him and
all the charges to which he pleaded guilty. Dearry’s argument fails for lack of
specific allegations of actual prejudice demonstrating a reasonable probability he
would not have entered into the plea,

12. As to Trial Counsel’s failure to move to suppress, Dearry has not
shown Trial Counsel’s decision fell below an objective standard of reasonableness
Dearry’s argument is premised on the notion that the police searched the Residence
based on an arrest warrant for Hall, but the affidavit of probable cause in Dearry’s
arrest warrant indicates the police searched the Residence only after obtaining a
search warrant. Dearry has not presented any basis on which Trial Counsel might
have challenged such a search warrant. The fact that neither Dearry, nor the

Residence’s owner, were implicated in the racketeering investigation does not call

 

26 Id.; Monme v. sm¢e, 2015 WL 1407856, a1*5 (Dei. Mar. 25, 2015).
9

into question the officers’ probable cause to search the Residence, including
Dearry’s room.27 Based on that record, Dearry has not overcome the strong
presumption that Trial Counsel’s representation was reasonable

13. Moreover, Dearry specifically and repeatedly was asked, both on the
Truth-in-Sentencing Guilty Plea form and by the judge who accepted his plea,
whether he had any objections or concerns as to Trial Counsel’s representation
The presiding judge advised Dearry that the time to raise any such concern was at
the guilty plea hearing and that raising the argument later would prove difficult.
Dearry confirmed, both in writing and in his oral representations to the Court, that
he was satisfied with Trial Counsel’s representation and believed he had done a
good job representing Dearry under the circumstances A defendant is bound by
the statements he gives during the plea colloquy absent clear and convincing
evidence that he did not understand the plea agreement, was forced to accept the

8 Dearry has not met this

plea, or was not satisfied with counsel’s representation.2
heightened standard. ln fact, Dearry has not advanced any allegations challenging

the presiding judge’s finding that the plea was knowing, intelligent, and voluntary.

 

27 See Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978) (holding a search warrant is valid
under the Fourth Amendment is there is probable cause to believe that fruits, instrumentalities, or
evidence of a crime will be found, even if the parties occupying the property are not implicated
in the crime). Although Dearry’s lease of the room might be relevant were the Court considering
whether the police were authorized to search under an exception to the warrant requirement, such
as consent, it is irrelevant where the police had a warrant to search the entire premises.

28 Somerville v. State, 703 A.2d 629, 632 (Del. 2008).

10

For all the foregoing reasons, Jamaal Dearry’s Motion for Postconviction

Relief is DENIED. IT IS SO ORDERED.

lile

A b:igai`l'I\/l. LeGQ)w, Judge

Original to Prothonotary
cc: John S. Taylor, Deputy Attorney General
Jamaal Dearry, pro se (SBI No. 00511795)

ll

