IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

Plaintiff, )

)

)

v ) Cr. ID. No. 1605023024

)

)

)

KENNY B. COOPER, )
)

Defendant. )

Date submitted: February 7, 2018
Date decided: May 7, 2018
(Amended May 8, 2018)

COMMISSIONER’S REPORT AND RECOMMENDATION AS TO
DEFENDANT’S MOTION TO DISMISS

Kelly H. Sheridan, Esquire, Deputy Attorney General, Delaware Department of
Justice, 820 N. French St. 7th Floor, Wilmington, DE, 19801. Attorney for the
State.

David C. Skoranski, Esquire, Offlce of Defense Services, 820 N. French St. 3ml
Floor, Wilmington, DE, 19801. Attorney for Defendant.

MANNING, Commissioner:

Pending before the Court is a motion filed by Cooper to dismiss the charges
against him. Cooper alleges that the State has violated his right to a speedy trial as
guaranteed under the Sixth Amendment to the United States Constitution and Article
I, Section 7 of the DelaWare State Constitution, and Superior Court Crim. Rule 48.
Because a motion to dismiss is case-dispositive, I am issuing my decision in the form
of a Report and Recommendation.l

Upon consideration of the arguments of counsel and the relevant legal
standards, it is my recommendation that Cooper’s Motion to Dismiss should be
GRANTED.

Facts and Procedural Historv

Cooper Was arrested on May 29, 2016. lt is alleged that during an argument
With his grandmother Cooper pointer his finger in her face and threatened to kill
her. Cooper Was arrested and has been held in default of bail since the date of the
incident. Cooper Was indicted on August l, 2016, for one count of Menacing and
one count of Terroristic Threatening (felony, victim >62).

Trial Was originally scheduled for November 15, 2016, however, on that date,
defense counsel requested that a competency evaluation be conducted Cooper Was

subsequently evaluated by Andrew Donohue, DO, of the DelaWare Psychiatric

 

1 Super. Ct. Crim. Rule 62(a)(5).

Center (DPC). Dr. Donohue opined that Cooper Was not competent to stand trial
due to his psychotic symptoms and that Without a court order for the involuntary
administration of antipsychotic medication pursuant to Sell v. United States, 539
U.S. 166 (2003), restoration Was highly unlikely. Dr. Donohue also stated that
Cooper Was refusing to participate in competency restoration classes.

An office conference Was held before the undersigned commissioner on July
18, 20,17. At that time, all parties agreed that an updated competency evaluation
should be obtained. On August 4, 2017, Douglas S. Roberts, Psy.D., also of DPC,
sent a letter to the Court opining that Cooper Was still not competent to stand trial
and that Without involuntary medication that Was unlikely to change.2

A second office conference Was held on September 2l, 2017, before this
commissioner. At that time, the State indicated that it Was going to file a Sell Motion
to have Cooper involuntarily medicated in an effort to restore competency. The
Court ordered the motion to be filed no later than October 31, 2017. To date, the
State has filed no such motion. In response to the State’s lack of action, Cooper filed
the instant Motion to Dismiss on November 29, 2017. After repeated inquiries by

the Court, the State filed its Response on February 7, 2017. The State’s Response

 

2 Dr. Roberts’ letter Was addressed to Judge Danberg of the Court of Common Pleas in error.

does not address Cooper’s lack of competency, nor does it move for an order
pursuant to Sell v. United States.
Defendant’s Motion to Dismiss
Speedy 'l`rial

Cooper argues that his right to a speedy trial has been violated. For this
determination, I Will utilize the four-factor test established by the United States
Supreme Court in Barker v. Wingo.3 The four factors are: (1) the length of the delay,
(2) the reason for the delay, (3) the defendant’s assertion of his right and (4)
prejudice to the defendant.4

It is undisputed that the delay, in this case, is approaching the two-year mark.
Cooper Was arrested in May 2016 and scheduled for trial in November 2016. The
delay in this case, at least since November 2016, has caused prejudice to Cooper_
he has sat in jail for nearly two years at this point. Cooper’s motion to dismiss, filed
on November 29, 2017, is the first time that he has argued that his right to a speedy
trial has been violated. HoWever, I do not find this belated assertion controlling in
light of the procedural history I outlined above. Undoubtedly, some of the delay is
contributable to Cooper’s reii.lsal to participate in competency restoration classes.

However, as noted by both Dr. Donohue and Dr. Roberts, restoration Was always

 

3 407 U.S. 514 (1972).

4 Id. at 530.

highly unlikely without first controlling Cooper’s psychotic symptoms by
medication-something he was refusing to take. The State has known of this issue
since January 13, 2017. Moreover, the State indicated that it was going to file a Sell
motion at the September office conference-but never did. The State’s lack of
action is frankly perplexing. The only conclusion I can draw is that the State has no
interest in restoring Cooper to competency, but is unwilling to drop the charges
against him. The fact that the State has allowed Cooper to languish in jail on
relatively minor charges-while it did nothing-_is unacceptable and has forced the
Court’s hand.

Balancing the four Barker v. Wingo factors, and in light of the foregoing, l
find that the reason for the delay_the State’s inaction_-outweighs all other factors
at this point in time. Cooper’s motion to dismiss should be GRANTED with
prejudice.

IT IS SO RECOMMENDED.

IT IS FURTHER ORDERED that a bail review hearing will take place on

Tuesdav, May 15, 2018. at 10:00, all counsel to be present, defendant to be

transported

Commissidffér

oc: Prothonotary
cc: all counsel via e-mail

