IN THE SUPREME COURT OF THE STATE OF DELAWARE 1

LESTER HlCKMAN, §
§ No. 90, 2015
Defendant Below, §
Appellant, § Court Below—Superior Court of
§ the State of Delaware in and for
V. § Sussex County
§
STATE OF DELAWARE, § Cr. [D No. 0104000979
§
Plaintiff Below, §
Appellee. §

Submitted: April 15, 2015
Decided: July 1, 2015

Before STRﬂ‘IE, Chief Justice; HOLLAND and VALIHURA, Justices.
O R D E R
This 1St day of July 2015, upon consideration of the appellant’s opening brief

and the appellee’s motion to afﬁrm under Supreme Court Rule 25(a), it appears to

the Court that:

(1) The appellant, Lester Hickman (“Hickman”), ﬁled this appeal from
the Superior Court’s denial of his joint motion for postconviction relief under
Superior Court Criminal Rule 61 and motion for correction of illegal sentence
under Superior Court Criminal Rule 35(a). The State of Delaware has moved to
afﬁrm the Superior Court’s judgment on the ground that it is manifest on the face

of Hickman’s opening brief that the appeal is without merit. We agree and afﬁrm.

(2) Hickman was charged with various drug offenses in May 2001 after
the police located a bag containing slightly more than 6 grams of crack cocaine
buried in his backyard. The record reﬂects that the drugs seized from Hickman’s
backyard were analyzed twice, ﬁrst on May 8, 2001, by Famam Daneshgar
(“Daneshgar”), a chemist employed by the Ofﬁce of Chief Medical Examiner
(“OCME”). Daneshgar’s toxicology report described the substance analyzed as
“white powder” and concluded that it was crack cocaine weighing 6.26 grams.
When Daneshgar was unavailable to testify at Hickman’s trial, the drugs were
analyzed again on August 28, 2001, by another OCME chemist, Joseﬁna
Tengonciang (“Tengonciang”). Tengonciang’s toxicology report described the
substance analyzed as a “chunky off-white substance” and concluded that it was
crack cocaine weighing 6.17 grams.

(3) When cross-examining Tengonciang at trial, Hickman’s defense
counsel referred to Daneshgar’s description of the drugs as “white powder” rather
than the “chunky off—white substance” described in Tengonciang’s report. In the
redirect questioning of Tengonciang that followed, the State, over the objection of
defense counsel, successfully sought the admission of Daneshgar’s toxicology
report so that the jury could see that both Daneshgar and Tengonciang had

identiﬁed the drugs as crack cocaine.

(4) On August 30, 2001, the jury convicted Hickman of Trafﬁcking in
Cocaine, Possession with Intent to Deliver Cocaine (PWITD Cocaine),
Maintaining a Dwelling, Possession of Drug Paraphernalia, and Possession of
Cocaine. On November 2, 2001, the Superior Court declared Hickman a habitual
offender and sentenced him to two life sentences for Trafﬁcking in Cocaine and
PWTTD Cocaine and to an additional seven years at Level V for the other
convictions. On direct appeal, this Court vacated Hickman’s conviction for
Possession of Cocaine and afﬁrmed the remaining convictions.1 On July 19, 2002,
the Superior Court vacated the sentence imposed for Possession of Cocaine.

(5) Hickman ﬁled motions for postconviction relief in 2003, 2006, 2007,
and 2008. The Superior Court denied each of the motions, and on appeal, this
Court afﬁrmed the Superior Court’s judgments.2

(6) Hickman ﬁled his ﬁfth motion for postconviction relief and motion
for correction of sentence (hereinafter “Joint Motion”) on December 10, 2014.

Hickman claimed that he was entitled to relief ﬁom his sentencing as a habitual

1 Hickman v. State, 2002 WL 1272154 (Del. June 7, 2002).

2 State v. Hickman, 2004 WL 1172347 (Del. Super. Ct. Feb. 6, 2004) (denying ﬁrst motion for
postconviction relief), a ’d, 2004 WL 2291343 (Del. Oct. 4, 2004); State v. Hickman, 2007 WL
127774 (Del. Super. Ct. Jan. 16, 2007) (denying second motion for postconviction relief), a ’d,
2007 WL 1096884 (Del. Apr. 13, 2007); Hickman v. State, 2008 WL 2080682 (Del. Apr. 23,
2008) (afﬁrming denial of third motion for postconviction relief); State v. Hickman, 2009 WL
1059207 (Del. Super. Ct. Apr. 14, 2009) (denying fourth motion for postconviction relief), a ’d,
2009 WL 3451915 (Del. Oct. 27, 2009). Also, in 2005, the US. District Court denied
Hickman’s federal habeas corpus petition. Hickman v. Carroll, 400 F. Supp. 2d 647 (D. Del.
2005)

offender because the predicate felonies were not submitted to a jury as required by
the United States Supreme Court’s decision in Alleyne v. United States.3 And he
alleged that the two life sentences imposed for Trafﬁcking in Cocaine and PWITD
Cocaine subjected him to double jeopardy.4 Hickman also claimed that he was
entitled to relief from his convictions based on the State’s failure to disclose that
Daneshgar had been indicted following a 2014 criminal investigation into evidence
tampering at the OCME, in violation of the United States Supreme Court’s
decision in Brady v. Maryland.5

(7) By order dated February 2, 2015, the Superior Court denied
Hickman’s Joint Motion. The court denied the sentencing claims on the basis that
Hickman’s eligibility for habitual offender sentencing was formerly adjudicated
and his double jeopardy claim was without merit. The court denied the
postconviction claim after ﬁnding that the recent charges against Daneshgar
provided no basis to contest the validity of Hickman’s convictions when

Hickman’s trial predated the OCME investigation by more than a decade and the

3 Alleyne v. United States, _ U.S. _, 133 S. Ct. 2151, 2155 (2013) (holding that any fact that

increases the mandatory minimum sentence for a crime is an element of the crime that must be
submitted to the jury).

4 The Double Jeopardy Clauses of the United States and Delaware Constitutions protect a
criminal defendant against multiple punishments or successive prosecutions for the same offense.
U.S. CONST. amend. V; DEL. CONST. art. I, § 8.

5 373 US. 83 (1963).

jury had convicted Hickman based on Tengonciang’s toxicology report and trial
testimony.

(8) Having carefully considered the parties’ positions on appeal and the
Superior Court record, this Court afﬁrms the Superior Court’s denial of Hickman’s
Joint Motion for the following reasons. First, the US Supreme Court’s decision in
Alleyne v. United States provides no basis to reexamine Hickman’s eligibility for
habitual offender sentencing because the Court in that case explicitly exempted
previous convictions as elements of a crime that must be submitted to the jury.6
Second, it is well-established law that a defendant may be separately convicted and
sentenced for Trafﬁcking in Cocaine and PWITD Cocaine.7 Third, we agree with
the Superior Court’s ﬁnding that the criminal charges against Daneshgar arising
ﬁom the 2014 investigation into evidence—tampering at the OCME did not
constitute a Brady violation. The alleged misconduct by OCME employees was
not revealed until 2014, and thus did not raise a concern that the State concealed

material impeachment evidence, as required to ﬁnd a Brady violation, at

6 See Alleyne, 133 S. Ct. at 2160 11.1 (recognizing that the fact of a prior conviction does not have
to be submitted to the jury); Reed v. State, 2015 WL 667525, at *2 (Del. Feb. 12, 2015) (“In
Alleyne, the United States Supreme Court held that any fact increasing a mandatory minimum
sentence for a crime is an element of a crime that must be submitted to the jury, but recognized,
and declined to revisit, the exception for previous convictions”).

7 State v. Skyers, 560 A.2d 1052, 1054—55 (Del. 1989).
5

Hickman’s trial in 2001.8 Nor was there a rational basis to ﬁnd that Hickman was
prejudiced by the alleged misconduct by Daneshgar, given that there was no
evidence that Daneshgar “planted” drugs to obtain false convictions, or submitted
false test results.9 Daneshgar was accused, many years after Hickman’s trial, of
stealing drugs for use as drugs, i.e., for personal consumption or sale.10

NOW, THEREFORE, IT IS ORDERED that the State’s motion to afﬁrm is
GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

Justice 6 2

8 See, e.g., Starling v. State, 882 A.2d 747, 756 (Del. 2005) (“There are three components of a
Brady violation: (1) evidence exists that is favorable to the accused, because it is either

exculpatory or irnpeaching; (2) that evidence is suppressed by the State; and (3) its suppression
prejudices the defendant”).

9 Cf. Brown v. State, _ A.3d _, 2015 WL 3776933, at *10 (Del. June 17, 2015) (concluding
that the Superior Court correctly held that there was “no rational probability that [defendant] was
convicted on false premises”); Bunting v. State, 2015 WL 2147188, at *3 (Del. May 5, 2015)
(concluding that defendant’s “conclusory and unsubstantiated assertion” that the validity of the
drug evidence in his 2004 trial had been called into question by the 2014 OCME investigation
was insufﬁcient to overcome the procedural bars of Rule 61).

1° See Carrero v. State, 2015 WL 3367940, at *2 & n.3 (Del. May 21, 2015) (“Famam
Daneshgar[ ] was tried by a jury on charges of Possession of Marijuana and Possession of Drug

Paraphernalia. The State dismissed those charges on May 1, 2015, after the jury failed to reach a
unanimous verdict”).

6

