   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                IN AND FOR NEW CASTLE COUNTY

                                      )
STATE OF DELAWARE                     )
                                      )     I.D. No. 1208026120
      v.                              )
                                      )
DAMIEN R. TRAWICK                     )
                                      )
                   Defendant          )


                        Submitted: August 30, 2014
                        Decided: October 27, 2014

             On Defendant’s Motion for Postconviction Relief.
                              DENIED.


                                ORDER
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State

Christopher D. Tease, Esquire, Wilmington, Delaware, Attorney for the
Defendant

COOCH, R.J.

       This 27th day of October, 2014, upon consideration of Defendant’s
First Motion for Postconviction Relief, it appears to the Court that:

      1.    Defendant Damien R. Trawick pled guilty in September 2012
            to one count of Possession of a Deadly Weapon by a Person
            Prohibited (“PDWBPP”). Prior to sentencing, the State filed a
            motion to declare Defendant a habitual offender pursuant to 11
            Del. C. § 4214(a) which was granted by another judge of this
            Court. Defendant was sentenced in November 2012 to 8 years
              Level V followed by 6 months of Level IV work release.1
              Since his sentencing, Defendant has filed several Motions for
              Correction of Sentence pursuant to Superior Court Criminal
              Rule 35, all of which have been denied. 2

       2.     Defendant filed a pro se Motion for Postconviction Relief on
              October 23, 2013. Pursuant to Superior Court Criminal Rule
              61(e), counsel was appointed and an order of briefing
              established. Defendant through counsel filed the instant
              Amended Motion for Postconviction Relief May 28, 2014.
              Defendant’s then-appointed counsel submitted an affidavit
              pursuant to Rule 61(g) on June 25.3 The State submitted a
              response to Defendant’s motion on August 11. Though
              Defendant had the option to, he did not file a reply.

       3.     Defendant’s sets forth four grounds for relief in his Motion:

                     1) Ineffective assistance of counsel because Defendant
                        “talk[ed] to lawyer once in [sic] he went straight for
                        plea before introduction;”

                     2) Illegal arrest because there was “no strong reason for
                        bothering me in the first place;”

                     3) Inappropriate sentence because Defendant “signed
                        for Habitual Offender in [sic] still received 8 yrs;”

                     4) PDWBPP was “not a violent felony at the time of his
                        plea, and therefore he was not being sentenced for a
                        violent felony pursuant to 11 Del. C. 4214(a), and
                        therefore, not facing 8 to life.” Defendant further
                        argues that because Possession Within 300’ of a Park
                        was no longer being considered a violent felony as of
                        September 1, 2011, that it cannot render PDWBPP a
                        violent felony pursuant to 11 Del. C. 4201. 4


1
  See Docket #3 (Sept. 13, 2012); Docket #7 (Nov. 9, 2012).
2
  See Docket #10 (June 5, 2013); Docket #12 (Aug. 26, 2013).
3
  Affidavit of Raymond M. Radulski, Esquire, Docket # 25 (Jun. 25, 2014).
4
  Def.’s Amended Mot. For Postconviction Relief at 1-2 (incorporating Defendant’s
original Motion). Though Defendant refers to the crime to which he pled guilty as
                                          2
       4.      The State’s response addresses only the fourth claim set forth
               by Defendant. The State argues that at the time of Defendant’s
               plea, possession of a controlled substance within 300 feet of a
               park was still considered a violent felony pursuant to 16 Del. C.
               § 4768.5 The State further contends that pursuant to 11 Del. C.
               211, the repeal of § 4768 several months after Defendant’s
               conviction does not change the status of his conviction.

       5.      The State also argues that the PDWBPP is, by operation of the
               statute, a violent felony. The State contends that in addition to
               the 2011 charge of Possession of a Controlled Substance Within
               300 Feet of a Park, the status of which Defendant disputes,
               Defendant has several other violent felony convictions that
               could form the basis for the PDWBPP charge to be considered a
               violent felony. 6

       6.      This Court finds that Defendant’s first claim for relief is without
               merit. To successfully articulate an ineffective assistance of
               counsel claim, a claimant must demonstrate: 1) that counsel’s
               performance was deficient, and 2) “that there is a reasonable
               probability that, but for counsel’s errors, he would not have
               pleaded guilty and would have insisted on going to trial.”7 To
               prove counsel’s deficiency, a Defendant must show that
               counsel’s representation fell below an objective standard of
               reasonableness.8 Moreover, a defendant must make concrete
               allegations of actual prejudice and substantiate them or risk
               summary dismissal.9 “[A] court must indulge a strong
               presumption that counsel's conduct falls within the wide range of
               reasonable professional assistance.”10

Possession of a Firearm by a Person Prohibited, or “PFBPP,” for clarity, this Court will
continue to use the acronym “PDWBPP.”
5
  See State’s Resp. at 2. The previous version of 16 Del. C. § 4768 prohibiting
distribution, delivery, or possession of a controlled substance within 300 feet of a park
was effective until August 31, 2011.
6
  See State’s Resp. at 2.
7
  Albury v. State, 551 A.2d 53, 60 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52
(1985)) (applying second prong of Strickland analysis in the context of a guilty plea); See
also Strickland v. Washington, 466 U.S. 668, 688 (1984).
8
  Albury, 551 A.2d at 60.
9
  Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
10
   Strickland, 466 U.S. at 689.
                                             3
       7.     Defendant’s sole contention that he only spoke with appointed
              counsel one time before counsel is conclusory and clearly does
              not satisfy either prong of Strickland. Defendant does not set
              forth any facts in his motion to support his claim and the record
              contradicts Defendant’s contention. Defendant’s previous
              counsel stated at the plea colloquy that he had reviewed the plea
              and the Truth-in-Sentencing form with Defendant.11 Counsel
              and the State jointly requested a pre-sentence investigation
              when the plea was entered. 12 Finally, Defendant’s previous
              counsel states in his affidavit that counsel met with Defendant
              at least twice, and that substitution counsel was present at
              Defendant’s sentencing.

       8.     Defendant has neither shown any deficiency on the part of
              counsel, nor has he shown that but for counsel’s alleged errors,
              he would have insisted on going to trial. The record simply
              does not reflect that counsel was deficient, and the quantity of
              Defendant’s previous counsel’s meetings with Defendant is not,
              in itself, sufficient to make out a claim for ineffective assistance
              of counsel.

       9.     Defendant’s second claim is that his arrest was illegal.
              Defendant argues that there was “no strong reason for bothering
              me in the first place.”13 This Court finds that Defendant cannot
              bring a claim based on illegal arrest because Defendant entered
              into a guilty plea. A guilty plea entered voluntarily “constitutes
              a waiver or any alleged errors or defects occurring prior to the
              entry of the plea.” 14 This Court found at the plea colloquy that
              Defendant’s plea was knowingly, voluntarily, and intelligently
              entered. 15 As a result of Defendant’s voluntary guilty plea, this
              Court finds that Defendant is foreclosed from bringing any




11
   See Def.’s Amended Mot. for Postconviction Relief, Exhibit C at 3.
12
   See Affidavit of Raymond M. Radulski, Esquire, Docket # 25 (Jun. 25, 2014).
13
   See Def.’s Mot. for Postconviction Relief at 3 (incorporated
14
   Bentley v. State, 27 A.3d 550, 2011 WL 3793779, at *2 (Del. 2011) (TABLE) (citing
Downer v. State, 543 A.2d 309, 311-13 (Del. 1988)).
15
   See Def.’s Amended Mot. for Postconviction Relief, Exhibit C at 11.
                                          4
               claims of relief based on illegal arrest, or any other errors that
               occurred prior to the entry of his guilty plea. 16

       10.     Defendant’s third claim for relief is that his sentence is
               “inappropriate.” Specifically, Defendant argues that he did not
               oppose his Habitual Offender status, but “still” received eight
               years at Level V at sentencing. This argument again, is
               conclusory and fails to persuade. “In the absence of clear and
               convincing evidence to the contrary, [Defendant] is bound by
               the answers on the Truth-in-Sentencing Guilty Plea Form and
               by his sworn testimony prior to the acceptance of the guilty
               plea.” 17 The record reflects that the Defendant understood the
               terms of the plea, including the requirement for a minimum
               mandatory sentence of eight years at Level V. 18 Defendant sets
               forth no evidence to the contrary in the instant Motion. This
               Court finds Defendant’s argument that his sentence was
               inappropriate to be without merit.

       11.     Defendant’s final claim is that PDWBPP was not a violent
               felony at the time of his plea. Defendant argues that his most
               recent conviction for Possession of a Controlled Substance
               Within 300 Feet of a Park is not a violent felony because the
               statute rendering that crime a violent felony had been repealed
               on September 1, 2011. It follows, then, according to
               Defendant, that because his most recent possession charge is
               not a violent felony, the charge cannot render PDWBPP a
               violent felony. 19

       12.     This Court finds that Defendant’s argument is flawed. As the
               State suggests, the sentence in this case was indeed appropriate.
               In this instance, PDWBPP was properly considered a Class D
               felony because, pursuant to 11 Del. C. § 1448(a)(1) and (c),



16
   Even if Defendant were not precluded from challenging this alleged error, “[a]n illegal
arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a
defense to a valid conviction.” United States v. Crews, 445 U.S. 463, 474 (1980) (internal
citations omitted). This Court declines to discuss the merits of this claim further.
17
   Somerville v. State, 703 A.2d 629, 632 (Del. 1997)
18
   See Def.’s Amended Mot. for Postconviction Relief, Exhibit C.
19
   See Def.’s Amended Mot. for Postconviction Relief at 1.
                                            5
               Defendant was in possession of a firearm while being a “person
               prohibited” from such possession.20

       13.     Moreover, PDWBPP was properly considered a violent felony
               here because Defendant’s 2011 charge of Possession of a
               Controlled Substance Within 300 Feet of a Park, contrary to
               Defendant’s position, is indeed a violent felony. 21 Though the
               statute creating the possession charge for which Defendant was
               convicted was repealed in September of 2011, Defendant was
               convicted prior to the repeal of the statute.22 In sum, pursuant to
               11 Del. C. § 211, the repeal of § 4768 several months after
               Defendant’s conviction leaves Defendant’s conviction
               undisturbed.23

       14.     Finally, this Court finds that eight years at Level V supervision
               was the proper sentence. The minimum mandatory sentence in
               this case was five years and the maximum was eight years. 24 As
               a result of Defendant’s habitual offender status, coupled with
               the fact that the instant offense was Defendant’s fourth violent




20
    See 11 Del. C. § 1448(a)(1) (prohibiting persons who have been convicted of a felony
in this State from “purchasing, owning, possessing or controlling adeadly weapon . . .
within the State.”); See also 11 Del. C. § 1448(c) (“Possession of a deadly weapon by a
person prohibited is a class F felony, unless said deadly weapon is a firearm or
ammunition for a firearm , and the violation is 1 of paragraphs (a)(1)-(8) of this section,
in which case it is a class D felony.”).
21
    See 11 Del. C. § 4201(c) prior to Sept. 1, 2011 (making Possession of a Controlled
Substance Within 300 Feet of a Park under 16 Del. C. § 4768 a violent felony).
22
    Defendant was convicted of Possession of a Controlled Substance Within 300 Feet of a
Park in May 2011 and the statute was not repealed until September 2011.
23
    See 11 Del. C. § 211 (stating that the repeal of a statute creating a criminal offense does
not “have the effect of releasing or extinguishing any penalty . . . incurred under the
statute . . . .”).
24
    See 11 Del. C. § 1448(e)(1)(b) (setting mandatory minimum sentence at five years for
persons who have committed a violent felony “within 10 years of the date of conviction .
. . or date of termination of all periods of incarceration or confinement imposed pursuant
to said conviction, whichever is the later date[.]”; 11 Del. C. § 4201(c) (designating
Possession of a Deadly Weapon by Persons Prohibited as a violent felony); 11 Del C. §
4205(b)(4) (setting eight years of Level V incarceration as maximum for class D
felonies).
                                              6
               felony, the Court was required to sentence Defendant to a
               sentence of eight years. 25


Therefore, Defendant’s Motion for Postconviction Relief is DENIED.


       IT IS SO ORDERED.

                                                          ______________________
                                                            Richard R. Cooch, R.J.

cc:    Prothonotary
       Investigative Services
       Matthew B. Frawley, Esquire
       Christopher D. Tease, Esquire




25
  See 11 Del. C.§ 4214(a) (“[A]ny person sentenced pursuant to this subsection shall
receive a minimum sentence which shall not be less than the statutory maximum
provided elsewhere in this title . . . this minimum provision shall apply only when the 4th
or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.”
                                             7
