      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JONATHAN JOHNSON,                   )
                                    )
            Petitioner,             )
                                    )
      v.                            )            I.D. No. 1602004456A
                                    )
                                    )
THE STATE OF DELAWARE               )
(DAG) ALLISON ABESSINIO,            )
TIMOTHY WEILER, ESQ.                )
                                    )
            Defendants.             )

                                   ORDER

                           Submitted: May 26, 2020
                           Decided: August 14, 2020

 Upon the Commissioner’s Report and Recommendation that the (i) Petition for a
  Writ of Mandamus Should Be Dismissed; (ii) Petition for Evidentiary Hearing
          Should be Denied; and (iii) Motion to Stay Should be Denied,

                                 ADOPTED.




Allison Abessinio, Deputy Attorney General, Department of Justice, Wilmington,
Delaware. Attorney for the State.

Timothy Weiler, Esquire, Office of Defense Services, Wilmington, Delaware.

Jonathan Johnson, James T. Vaughn Correctional Center, Smyrna, Delaware. Self-
represented.

MEDINILLA, J.

                                        1
       AND NOW TO WIT, this 14th day of August, 2020, upon consideration of

Petitioner, Jonathan Johnson’s (“Petitioner”) Petition for a Writ of Mandamus,

Petition for an Evidentiary Hearing, and Motion to Stay, the Commissioner’s Report

and Recommendation, and the record in this case, it appears to the Court that:

       1.      Petitioner was charged with multiple offenses, after law enforcement

executed a search warrant of his home and located firearms, ammunition, heroin,

cocaine, and marijuana. 1 On January 27, 2017, with the assistance of counsel,

Petitioner filed a Motion to Suppress. 2 On February 17, 2017, the Court held a

hearing and denied the Motion to Suppress. 3

       2.      On April 25, 2017, the day of trial, Petitioner pled guilty to Drug

Dealing (one count) and Possession of a Firearm During the Commission of a Felony

(PFDCF) (one count).4 As part of the agreement, the State agreed to enter a nolle

prosequi on the remaining charges.

       3.      On July 26, 2017, the State filed a Motion to Declare Johnson a

Habitual Offender and to be sentenced on the PFDCF charge under 11 Del. C. §


1
  On September 12, 2016, a Superior Court grand jury returned an indictment against the Petitioner
for the following charges: Drug Dealing (two counts), Aggravated Possession (two counts),
Possession of a Firearm During the Commission of a Felony (two counts), Carrying a Concealed
Deadly Weapon (one count), Possession of a Firearm by a Person Prohibited (two counts),
Possession of Ammunition by a Person Prohibited (two counts), Possession of Drug Paraphernalia,
and Endangering the Welfare of a Child (four counts).
2
  Johnson’s Motion to Suppress State of Delaware v. Jonathan Johnson, ID No. 1602004456A,
D.I. 22 (Del. Super. Ct. Jan. 27, 2017) [hereinafter the Court will refer to docket numbers].
3
  Trial Calendar/ Suppression Hearing: Motion Denied, D.I. 29.
4
  See Trial Calendar – Pled Guilty PSI Ordered, D.I. 39.
                                                2
4214.5 On October 27, 2017, the Court granted the State’s motion,6 and sentenced

Petitioner to the minimum mandatory twenty-five years at Level V for the PFDCF

charge, and to probation for the Drug Dealing charge. 7

       4.     On October 17, 2018, Petitioner filed a Motion for Postconviction

Relief (Rule 61) under Superior Court Criminal Rule 61.8 Between October 2019

and January 2020, Petitioner also filed a Petition for Writ of Mandamus with this

Court, 9 a Petition for an Evidentiary Hearing, 10 and a Motion to Stay the

consideration of his Rule 61 Motion.11 During the pendency of his Rule 61 Motion,

Petitioner also filed a Petition for Writ of Mandamus with the Delaware Supreme

Court. On April 15, 2020, the Supreme Court denied his petition. 12 On May 14,

2020, the State filed responses to each of Petitioner’s pending motions.

       5.     This Court referred Petitioner’s pending motions 13 to Superior Court

Commissioner, Katharine L. Mayer for proposed findings of fact and conclusions of

law pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62(a)(5).14


5
  State’s Motion to Declare Johnson an Habitual Offender, D.I. 41; see 11 Del. C. § 4214.
6
  State’s Motion to Declare Johnson an Habitual Offender Granted, D.I. 42.
7
  Sentencing Calendar: Johnson Sentenced, D.I. 41; see Sentence: ASOP Order Signed & Filed
on 11/01/17, D.I. 43.
8
  Johnson’s Motion for Postconviction Relief, D.I. 44.
9
  Johnson’s Petition for a Writ of Mandamus, D.I. 75.
10
   Johnson’s Petition for an Evidentiary Hearing, D.I. 78.
11
   Johnson’s Motion to Stay, D.I. 81.
12
   See Matter of Johnson, 228 A.3d 139, 2020 WL 1881069 (Del. 2020) (TABLE).
13
   Johnson’s Rule 61 Motion, Johnson’s Petition for a Writ of Mandamus, Johnson’s Motion for
an Evidentiary Hearing, and Johnson’s Motion to Stay.
14
   See 10 Del. C. § 512(b)(1)(b) (2013 & Supp. 2016); DEL. SUPER. CT. CRIM. R. 62(a)(5) (Under
Delaware Superior Court Rule 62(a)(5), the Court may refer to a Superior Court Commissioner
                                              3
On May 26, 2020, the Commissioner issued a Report, recommending that this Court

dismiss Petitioner’s Petition for Writ of Mandamus as meritless, and subsequently

deny Petitioner’s Petition for an Evidentiary Hearing and Petitioner’s Motion to

Stay.15

       6.     After the Commissioner issues a report, “any party may serve and file

written objections” to the report within ten days. 16 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.17 On June 9, 2020, Petitioner filed an Amended Reply to

the State’s Response to his Motion for Postconviction Relief. 18                The Court

preliminarily reviews this filing as an appeal.

       7.     An objection or appeal to a Commissioner’s proposed findings of fact

and recommendations must “set forth with particularity the basis for the

objections.”19 In his Amended Reply, Petitioner references arguments presented in

the State’s Responses to his Petition for a Writ of Mandamus, 20 but fails to address




case-dispositive motions, including postconviction relief motions, and the Commissioner must
submit “proposed findings of fact and recommendations for the disposition, by a judge, of any
such matter.”).
15
   Commissioner’s Report and Recommendations and Order, D.I. 92 [hereinafter “Comm’r
Report”].
16
   DEL. SUPER. CT. CRIM. R. 62(a)(5)(ii).
17
   DEL. SUPER. CT. CRIM. R. 62(b).
18
   See Johnson’s Amended Reply, D.I. 93 [hereinafter “Pet.’s Amended Reply”].
19
   DEL. SUPER. CT. CRIM. R. 62(a)(5)(ii).
20
   See Pet.’s Amended Reply at 2.
                                             4
      any of the Commissioner’s findings with particularity, 21 reiterating only prior

      arguments.

             8.      Since, Petitioner’s Amended Reply cannot be considered an objection

      to the Commissioner’s Report, 22 the Court “may accept, reject or modify, in whole

      or in part, the findings of fact or recommendations made by the Commissioner.” 23

             9.      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,

      the Petition for a Writ of Mandamus is DISSMISSED, and as such, the Petition for

      an Evidentiary Hearing and Motion to Stay are DENIED.

             IT IS SO ORDERED.

                                                           /s/Vivian L. Medinilla
                                                           Vivian L. Medinilla
                                                           Judge
oc: Prothonotary
cc: Defendant
Department of Justice & Investigative Services




      21
         See Pet.’s Amended Reply at 2.
      22
         DEL. SUPER. CT. CRIM. R 62(b) (“A party . . . appealing the findings of fact and recommendations
      of a Commissioner . . . who fails to comply with the provisions of this rule may be subject to
      dismissal of said . . . appeal.”).
      23
         DEL. SUPER. CT. CRIM. R 62(a)(5)(ii).
                                                      5
