IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) I.D. Nos. 1604009646, 1604013033
) In and for Kent County
v. )
) RKl6-05-0192-Ol Drug Dealing (F)
DAVID PRESTON, ) RKl6-06-Ol30-Ol PFDCF (F)
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Gregory R. Babowal, Esquire, Deputy Attorney General, Department of Justice, for
the State of Delaware.

David Preston, pro Se.

FREUD, Commissioner
October 12, 2018

The defendant, David Preston (“Preston”), pled guilty on April 4, 2017, after
a jury had been picked in his case, to one count of Drug Dealing, 16 Del. C. § 4753(2)
and one count of Possession of a Firearm Dun`ng the Comrnission of a Felony, ll
Del. C. § l447A. He Was also facing one count of Drug Dealing Tier 4, six counts
of Possession of Firearm Ammunition by a Person Prohibited, one count of Drug
Dealing With Aggravating Factors, one count of Tier 5 Possession of Drug, two

counts of Possession of Drug Paraphernalia, one count of Tier l Possession of Illegal

State v. David Preston
ID. Nos. 1604009646 and 1604013033
October 12, 2018

Drugs, one count of Resisting Arrest, two counts of Possession of Illegal Drugs, one
count of Receiving Stolen Property, and one count of Possession of a Weapon With
No Serial Number. Nolle prosequis Were entered by the State on the additional
charges in exchange for Preston’s plea. The parties agreed to a recommended
sentence of eleven years and four months Level V, suspended after serving three
years and four months With credit for time served followed by one year probation.
The Court agreed With the recommendation and sentenced Preston accordingly. Had
he gone to trial and been found guilty of all charges Preston faced substantial jail
time.

Preston did not appeal his conviction or sentence to the Delaware Supreme
Court. Preston did file a motion for modification of his sentence Which this Court
denied.l Next he appealed the denial of his motion to the Delaware Supreme Court
Which affirmed this Court on December 1 l, 2017.2 On April 3, 2018 he filed, pro se,
a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. The
charges stemmed from an undercover drug investigation of Preston during which he
sold drugs to undercover police officers and the execution of several search Warrants
Which yielded large quantities of heroin and marijuana along With a number of

firearms.

 

1 State v. Preston, Del. Super., ID Nos. 1604009646, 1604013033, Witham, RJ (Aug.
3, 2017)(0RDER).

2 Preston v. State, 2017 WL 63336903 (Del. Supr.).

2

State v. David Preston
ID. Nos. 1604009646 and 1604013033
October 12, 2018

PRESTON’S CONTENTIONS
Next, Preston filed the instant Motion for Postconviction Relief pursuant to
Superior Court Criminal Rule 61. In his motion, he raises the following grounds for
relief:

Ground one: Lack of Jurisdiction.
The Superior Court of the State of Delaware is not a (sic)
Article III court jurisdiction was challenged but never
proven as required by law.

Ground two: Denial of Due Process.

As the court documents show on its face, the matter is a
victimless crime and as a matter of due process and a (sic)
essential part of the judicial process there must be an actual
victim. Furthermore due to being incarcerated in spite of
being innocnet until proven guilty the State thwart any
attempt to establish a proper defense. The movant was
unable to present his case effectively as there exist no
opportunity for him to conduct both legal and factual
investigations so that all appropriate defenses could’ve
been raised which is fundamentally unfair.

Ground three: Illegal Search and Seizure.

Officers of Troop 3 State Police under sworn oath
deliberately provided false information to establish
probable cause. They stated that Frank Ramos, who is the
homeowner of the resident (sic) which was search and who
was present at the time of the executed search, gave
consent for the search and that the Movant was taken into
custody in the area which the evidence was located, both
these claims were denied by Frank Ramos under oath at
trial.

State v. Davia' Preston
ID. Nos. 1604009646 and 1604013033
October 12, 2018

DISCUSSION

Under Delaware law, this Court must first determine whether Preston has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of his postconviction relief claim.3 This is Preston’s first motion
for postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 61(i)(l) - requiring filing within one year
and (2) - requiring that all grounds for relief be presented in the initial Rule 61
motion, are met. None of Preston’s claims were raised at the plea, sentencing, or on
direct appeal. Therefore, they are barred by Rule 61 (i)(3), absent a demonstration of
cause for the default and prejudice. Preston does not claim his attorney was
ineffective; in fact, throughout most of the proceedings up until his guilty plea,
Preston proceeded pro se and as the docket indicated filed numerous motions.
Preston makes no argument for his failure to have raised his first or second claims
earlier as such they are clearly procedurally barred. As to his third claim, Preston
contends he did not raise the search and seizure issue due to a violation by the
prosecution. However, he fails to substantiate this vague claim thus this claim is also
procedurally barred. Furthermore, he waived all of his constitutional rights by
entering his guilty plea, including the right to suppress evidence.4 Preston chose to
accept the State’s plea offer and waive any argument on these issues.

As noted, Preston was facing the possibility of substantial time in prison had

 

3 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
4 Smith v. State, 2004 WL 120530 (Del. Supr.).

4

State v. David Preston
ID. Nos. 1604009646 and 1604013033
October l2, 2018

he been convicted, and the sentence and plea were reasonable under all of the
circumstances, especially in light of the evidence against him. Prior to the entry of
the plea, Preston and his attorney discussed the case. The plea bargain was clearly
advantageous to Preston.

To the extent that Preston alleges his plea was involuntary, the record
contradicts such an allegation. When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.5 At the
guilty-plea hearing, the Court asked Preston whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Preston if he understood he would waive his
constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Forrn (“Guilty Plea Form”); and
whether he gave truthful answers to all the questions on the form. The Court asked
Preston if he had discussed the guilty plea and its consequences fully with his
attorney. The Court asked Preston if he was entering into the plea as he was guilty
of the charges The Court also asked Preston if he was satisfied with his counsel’s
representation Preston answered each of these questions affirmatively.6

Furthermore, prior to entering his guilty plea, Preston signed a Guilty Plea

 

5 Godinez v. Moran, 509 U.S. 389, 400 (1993).

6 State v. Preston, Del. Super., ID Nos. 1604009646, 1604013033 (April 4, 2017) Tr.
at 4-10.

State v. Davia' Preston
ID. Nos. 1604009646 and 1604013033
October l2, 2018

Forrn and Plea Agreement in his own handwriting Preston’s signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed
in the Plea Agreement. Preston is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.7 I
confidently find that Preston entered his guilty plea knowingly and voluntarily and
that Preston’s grounds for relief are completely meritless.
CONCLUSION

I find that Preston failed to raise any of his claims at the plea or on appeal and
has not demonstrated cause for that failure; nor has he claimed any prejudice as a
result of his claims. In fact, he has not alleged he is innocent. I also find that by
entering the guilty plea he waived his claims. Additionally, I find that Preston’s
guilty plea was entered knowingly and voluntarily. I recommend that the Court deny

Preston’s motion for postconviction relief as procedurally barred and meritless.

/Q/ Andrea l\/l Frend
Commissioner

AMF/dsc

 

7 Sommerville,703 A.2d at 632.

