       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

STATE OF DELAWARE,                      )
                                        )
      v.                                )             ID No. 1210019908
                                        )
ERIC HOLMES,                            )
         Defendant.                     )

                         Date Submitted: February 27, 2015
                          Date Decided: March 12, 2015

               ORDER GRANTING ERIC HOLMES’ MOTION
                  FOR APPOINTMENT OF COUNSEL

      This 12th day of March 2015, upon consideration of the Motion for

Appointment of Counsel (“Motion”) filed by Defendant, Eric Holmes; Rule 61 of

the Superior Court Rules of Criminal Procedure; the facts, arguments and legal

authorities set forth in Defendant’s Motion; statutory and decisional law; and the

entire record in this case, the Court finds as follows:

      1. In July 2013, a jury found Defendant guilty of Possession Firearm by a

Person Prohibited. Defendant was represented by counsel at the two-day trial. The

Court revoked Defendant’s bail and ordered a presentence investigation. Soon

thereafter, numerous post-trial motions were filed and Defendant appealed to the

Delaware Supreme Court. The Supreme Court dismissed Defendant’s appeal and

the Court proceeded to sentencing.
       2. On May 16, 2014, the Court granted the State’s motion to declare

Defendant a habitual offender pursuant to 11 Del. C. §4214(a) and sentenced

Defendant to 16 years of incarceration.

       3. Defendant appealed to the Delaware Supreme Court. The Supreme Court

affirmed the judgment of this Court by Order dated January 29, 2015.

       4. On February 24, 2015, Defendant filed a motion for a reduction of his

sentence, which the Court denied on March 4, 2015.

       5. On February 27, 2015, Defendant filed the pending motion for counsel to

assist Defendant with a future motion for postconviction relief.

       6. Superior Court Criminal Rule 61(e) governs the appointment of counsel in

all pending and future postconviction proceedings.1 Upon a defendant’s timely

request, the Court shall appoint counsel for first postconviction relief motions

where the defendant seeks to set aside “a judgment of conviction after trial that has

been affirmed by final order upon direct appellate review and is for a crime

designated as a class A, B, or C felony under 11 Del. C. § 4205(b).”2

       7. Defendant’s Motion asserts his intentions to seek postconviction relief

from the 2013 jury conviction of Possession of a Firearm by a Person Prohibited

(“PFPP”). Pursuant to 11 Del. C. § 1448(c), PFPP is a class D felony unless the


1
  See Flamer v. Chaffinch, 827 F. Supp. 1079, 1083-84 (D. Del. 1993), aff’d sub nom. Flamer v.
Delaware, 68 F.3d 710 (3d Cir. 1995).
2
  Super. Ct. Crim. R. 61(e)(1)(i).
                                              2
prohibited person is subject to increased sentencing under subsection (e) in which

case PFPP becomes a class C felony.

          9. Defendant qualified for increased sentencing under § 1448(e)(1) because

of Defendant’s status as a prohibited person and his previous conviction of a

violent felony.3 Accordingly, Defendant’s 2013 jury conviction of PFPP, from

which he intends to seek postconviction relief, is a class C felony and Defendant is

entitled to appointment of counsel to pursue his first motion for postconviction

relief.

          NOW, THEREFORE, on this 12th day of March 2015, Defendant Eric

Holmes’ Motion for Appointment of Counsel is hereby GRANTED.

          IT IS SO ORDERED.


                                        ___________________________________
                                        The Honorable Andrea L. Rocanelli




3
  Defendant was convicted of Assault Second Degree, a violent felony under 11 Del. C. §
4201(c), on July 3, 2007.
                                           3
