IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)

)

v. ) Case ID No.: 1510007181

)

)

DOMINIQUE TISINGER, )
)

Defendant. )

M

Submitted: February 15, 2019
Decided: April 2, 2019

Upon the Commissioner ’s Report and Recommendation that

Defendant ’s Motl`onfor Postconviction Relief and
Motz`onfor Default Judgment Should Be Denz'ed, ADOPTED.

Dominique Tisinger, Wilrnington, Delaware. Self-represented Defendcmt.

Mark A Denney, Esquire and Erika R. Flaschner, Esq., Department of Justice,
Wilmington, Delaware. Attorneysfor the State.

MEDINILLA, J.

AND NOW TO WIT, this 2nd day of April, 2019, upon consideration of
Defendant Dorninique Tisinger (“Defendant”)’s September 25, 2017 Motion for
Postconviction Relief, Defendant’s October 10, 2018 Motion for Default Judgrnent,
the Comrnissioner’s February l, 2019 Report and Recommendation on Defendant’s
Motion for Postconviction Relief and Motion for Default Judgment
(“Commissioner’s Report”),l the sentence imposed upon Defendant, and the record
in this case, it appears to the Court that:

l. On June 7, 2016, in a non-jury trial, the Court found Defendant guilty
of Possession of a Firearm by a Person Prohibited (“PFBPP”), Possession of
Ammunition by a Person Prohibited (“PABPP”), Carrying a Concealed Deadly
Weapon (“CCDW”), Resisting Arrest, and Attempted Escape Third Degree.2

2. Defendant was sentenced on October 7, 2016 to ten years at supervision

Level V on the PFBPP offense.3 For the other offenses, Defendant was sentenced

 

' Commissioner’s Report and Recommendation, State v. Tisz'nger, ID No. 1510007181, D.I. 62
(Del. Super. Feb. 1, 2019).

2 Although Defendant was convicted of Attempted Escape Third Degree, the State entered a
nolle prosequi on this offense prior to sentencing

3 On the same day, Defendant was sentenced for violating his probation to an original charge of
drug dealing plus an aggravated felony, which he references in his Motion. Defendant was
sentenced to six months at supervision Level V. See Violation of Probation Sentence Order,
State v. Tisinger, ID No. 1309007882, D.l. 16 (Del. Super. Oct. 7, 2016).

to supervision at Level IV and various levels of probation.4 Defendant’s sentences
of confinement are to run consecutive

3. On September 15, 2016, this Court denied both Defendant’s Motion for
Judgment of Acquittal or Altematively a New Trial and his request for an
Evidentiary Hearing and Appointment of Counsel for Judgment of Acquittal.5 On
April 20, 2017, the Delaware Supreme Court dismissed Defendant’s appeal as
untimely.6

4. Defendant filed this Motion for Postconviction Relief on September 25,
2017.7 His motion was referred to a Superior Court Commissioner8 for proposed
findings of fact and conclusions of law, in accordance with 10 Del. C. § 512(b) and

Superior Court Criminal Rule 62.9 The Commissioner issued a briefing schedule

 

4 Sentence Order, State v. Tz'singer, ID No. 1510007181, D.I. 39 (Del. Super. Oct. 7, 2016). For
CCDW, he was sentenced to eight years at supervision Level V, suspended for eight years at
Level IV DOC discretion, suspended after six months at supervision Level IV, followed by
probation. For PABPP Defendant was sentenced to five years at supervision Level V, suspended
for two years at supervision Level III. For Resisting Arrest, Defendant was sentenced to one
year and five days at supervision Level V, suspended for one year at supervision Level I.

5 Order, State v. Tisl'nger, ID No. 1510007181, D.I. 38 (Del. Super. Sept. 15, 2016).
6 See Tisinger v. State, 160 A.3d 1134, 2017 WL 1422624, at *l (Del. Apr. 20, 2017) (TABLE).

7 Motion for Postconviction Relief, State v. Tisinger, ID No. 1510007181, D.l. 46 (Del. Super.
Sept. 25, 2017).

8 During the time that this motion was pending, the Commissioner was appointed as a Judge in
the Court of Common Pleas but sat by designation as a Commissioner of the Superior Court for
purposes of this motion.

9 See 10 Del. C. § 512(b)(1)(b); super. Ct. Crim. R. 62(3)(5).

and received responses from Trial Counsel and the State by February 20, 2018.'0
The State’s response was untimely. The Commissioner granted Defendant’s request
for an extension of time to file his reply." On May 3, 2018, Defendant filed his
Reply to the State’s Response.12 The Commissioner ordered additional briefing
from both Trial Counsel and the State that extended certain briefing deadlines.'3 On
October 10, 2018, Defendant filed a “Motion for Default Judgment” seeking relief
due to the State’s untimely filing of its Response and the supplemental filing from
Trial Counsel.14 The State and Trial Counsel filed amended responses by October

26, 2018.'5 Defendant filed his reply brief on November 5, 2018.16

 

'O Trial Counsel’s Response, State v. Tisinger, ID No. 1510007181, D.I. 50 (Del. Super. Dec. 12,
2017); State’s Response, State v. Tisinger, ID No. 1510007181, D.I. 51 (Del. Super. Feb. 20,
2018).

'l Letter to Mr. Tisinger, State v. Tisinger, ID No. 1510007181, D.I. 53 (Del. Super. Apr. 9,
2018)

12 Defendant’s Reply Br., State v. Tl'singer, ID No. 1510007181, D.I. 54 (Del. Super. May 3,
2018).

'3 See Commissioner’s Letter, State v. Tisinger, ID No. 1510007181, D.I. 55 (Del. Super. Aug.
28, 2018).

14 Motion for Default Judgment, State v. Tisz`nger, ID No. 1510007181, D.l. 58 (Del. Super. Oct.
10, 2018). The record is clear that although Defendant takes issue with the timeliness of certain
filings in this Motion, it was the Commissioner that requested Trial Counsel file an amended
response and the State to file a sur-reply, thereby extending the deadlines to file the respective
pleadings.

15 Trial Counsel’s Amended Response, State v. Tisinger, ID No. 1510007181, D.I. 57 (Del.
Super. Oct. 3, 2018); State’s Reply to Defense Counsel’s Amended Response, State v. Tisz`nger,
ID No. 1510007181, D.I. 59 (Del. Super. Oct. 26, 2018).

'6 Defendant’s Second Reply Br., State v. Tisinger, ID No. 1510007181, D.I. 61 (Del. Super.
4

5. The Commissioner issued his Report and Recommendation on
February l, 2019, advising the Court to deny Defendant’s Motion for Postconviction
Relief, including Defendant’s ineffective assistance of counsel claims, and to deny
his Motion for Default Judgment.17 Defendant did not file any objections to the
Commissioner’s Report.

6. Rule 62(a)(5) permits the Court to refer case-dispositive motions,
including postconviction relief motions, to a Superior Court Commissioner for
“proposed findings of fact and recommendations for the disposition, by a judge, of
any such matter.”18 After the Commissioner issues her report, “any party may serve
and file written obj ections” to the report within ten days.19 A party failing to comply
with this ten-day time limit for appeal may foreclose that party’s ability to object to
the Commissioner’s report.ZO

7. Defendant has not filed any objections or appeal from the

Commissioner’s Report. The Court has undergone a careful review of Defendant’s

 

Nov. 5, 2018).

17 Commissioner’s Report and Recommendation, State v. Tisinger, ID No. 1510007181, D.I. 62
(Del. Super. Feb. l, 2019).

'8 super. Ct. Crim. R. 62(a)(5).

19 Super. Ct. Crim. R. 62(a)(5)(ii). Defendant failed to file any written objections to the
Commissioner’s Report.

20 Super. Ct. Crim. R. 62(b).

Motion for Postconviction Relief, Defendant’s Motion for Default Judgment, the
Commissioner’s Report, and the record. After this review, the Court adopts in toto
the findings of fact and recommendations in the Commissioner’s Report. For the
reasons stated in the Commissioner’s Report, Defendant’s Motion for
Postconviction Relief is DENIED, and Defendant’s Motion for Default Judgment is

DENIED.

/

/Vivian L. Medinilla

Judge

 

oc: Prothonotary

cc: Defendant
Cathy Johnson, Esquire
Department of Justice
Investigative Services Office

