   IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                        )
STATE OF DELAWARE                       )
                                        )       ID#1308004342
           v.                           )       ID#1005013493
                                        )
DEVON D. REED,                          )
                                        )
                  Defendant             )


                      Submitted: October 10, 2016
                      Decided: November 29, 2016

  On Defendant’s Amended Motion for Postconviction Relief. DENIED.

On Defendant’s Motion for Appointment of Counsel. DENIED AS MOOT.

                               ORDER
Barzilai K. Axelrod, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State in Crim. ID. No.
1308004342.

Mark A. Denney, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State in Crim. ID. No. 1005013493.

Devon D. Reed, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.




                                    1
COOCH, R.J.

      This 29th day of November 2016, upon consideration of Defendant’s
pro se Amended Motion for Postconviction Relief1 and pro se Motion for
Appointment of Counsel, it appears to the Court that:

              I. FACTUAL AND PROCEDURAL HISTORY

                   A. Defendant’s May 24, 2011 Convictions

       1.     On May 24, 2011, Defendant pleaded guilty to Possession with
              Intent to Deliver Heroin, Possession of a Firearm by a Person
              Prohibited (“PFBPP”), and Reckless Endangering First
              Degree.2 With respect to the Possession with Intent to Deliver
              Heroin charge, Defendant was sentenced to five years at Level
              V supervision, suspended for eighteen months at Level III
              supervision. With respect to the PFBPP charge, Defendant was
              sentenced to three years at Level V supervision. With repect to
              the Reckless Endangering First Degree charge, Defendant was
              sentenced to five years at Level V supervision, suspended for
              eighteen months at Level III.

                 B. Defendant’s January 9, 2014 Convictions

       2.     On January 9, 2014, in a separate matter,3 Defendant entered
              into a plea agreement with the state, pursuant to which, inter
              alia, he would plead guilty to Drug Dealing and Tampering
              with Physical Evidence and the State would cap its sentencing
              recommendation at three years at Level V incarceration. After
              a plea colloquy, Defendant pleaded guilty to the two crimes.4
              On March 21, 2014, Defendant was sentenced to four years at



1
  Defendant’s Amended Motion for Postconviction Release encompasses Defendant’s
two separate Motions for Postconviction Relief made under Criminal ID. Nos.
1005013493 and 1308004342.
2
  This guilty plea was made in connection with Defendant’s charges in Criminal ID. No.
1005013493.
3
   This matter was in connection with Defendant’s charges in Criminal ID. No.
1308004342.
4
  D.I. 10 (Crim. ID. No. 1308004342).
                                           2
             Level V supervision as a habitual offender pursuant to 11 Del.
             C. § 4214(a).5

       3.    With respect to the January 9, 2014 convictions, Defendant
             filed three Motions for Modification of Sentence pursuant to
             Superior Court Criminal Rule 35(a). On May 8, 2014, the
             Court denied Defendant’s first Motion for Modification of
             Sentence on grounds that the sentence was appropriate for all
             the reasons stated at the time of sentencing.6 On July 18, 2014,
             the Court denied Defendant’s second motion on grounds that
             the motion was procedurally barred, being a repetitive request
             under Rule 35(b), and that the imposed sentence was
             appropriate.7 The Court denied Defendant’s most recent
             motion on December 4, 2014 again on grounds that it was a
             repetitive motion.8

    C. Defendant’s Two Motions for Postconviction Relief and Motion for
                        Appointment of Counsel

       4.    On May 19, 2014, Defendant filed pro se a Motion for
             Postconviction Relief in connection with the January 9, 2014
             convictions. On September 29, 2014, Defendant filed pro se a
             separate Motion for Postconviction relief in connection with the
             May 24, 2011 convictions.9 On July 6, 2015, Defendant filed a
             Motion for Appointment of Counsel under the criminal
             identification number for the January 9, 2014 convictions. On
             July 21, 2015, this Court notified Defendant that his Motion for
             Postconviction Relief had been stayed, and therefore counsel
             would not be appointed at that time. On January 8, 2016,
             Defendant filed pro se an Amended Motion for Postconviction
             Relief under the criminal identification number for the January
             9, 2014 convictions. On June 6, 2016, Defendant filed a second
             pro se Motion for Appointment of Counsel, also under the


5
  D.I. 13 (Crim. ID. No. 1308004342).
6
  D.I. 15 (Crim. ID. No. 1308004342).
7
  D.I. 18. (Crim. ID. No. 1308004342).
8
  D.I. 20. (Crim. ID. No. 1308004342).
9
   For some reason, these motions were not referred by the Prothonotary to the
undersigned judge at that time.
                                       3
               criminal identification number for the January 9, 2014
               convictions.10

       5.      In Defendant’s Amended Motion for Postconviction Relief,
               Defendant restates the grounds for postconviction relief he
               previously set forth in his other motions. Defendant moves for
               postconviction relief on three grounds.

       6.      With respect to the January 9, 2014 charges, Defendant makes
               two claims. Defendant first claims that his trial counsel was
               ineffective at the sentencing hearing. Defendant claims that his
               trial counsel was ineffective for “fail[ing] to protect the
               integrity of the plea, during the March 21, 2014 sentencing
               hearing.”11 Second, Defendant requests postconviction relief
               on grounds that the State “fail[ed] to fulfill the integrity (the
               State’s cap agreement) during Reed’s March 21, 2014
               sentencing hearing.”12

       7.      With respect to the May 24, 2011 charges, Defendant makes
               one claim. Defendant contends that his guilty plea was not
               offered knowingly and voluntarily, but was coerced in
               connection with the irregularities at the Office of the Chief
               Medical Examiner (“the OCME”).13 On October 11, 2016,
               Defendant’s trial counsel filed an affidavit in response to
               Defendant’s Amended Motion for Postconviction Relief.
10
   Super. Ct. Crim. R. 61(e) provides that:
           “(2) First postconviction motions in guilty plea cases. The judge
           may appoint counsel for an indigent movant’s first timely
           postconviction motion and request for appointment of counsel if
           the motion seeks to set aside a judgment of conviction that resulted
           from a plea of guilty or nolo contendere only if the judge
           determines that: (i) the conviction has been affirmed by final order
           upon direct appellate review or direct appellate review is
           unavailable; (ii) the motion sets forth a substantial claim that the
           movant received ineffective assistance of counsel in relation to the
           plea of guilty or nolo contendere; (iii) granting the motion would
           result in vacatur of the judgment of conviction for which the
           movant is in custody; and (iv) specific exceptional circumstances
           warrant the appointment of counsel.”
11
   Def’s. Am. Mot. for Postconviction Relief, at 3.
12
   Def’s. Am. Mot. for Postconviction Relief, at 3.
13
   Def’s. Am. Mot. for Postconviction Relief, at 4.
                                             4
                                 II. DISCUSSION

     A. Defendant’s Motion for Postconviction Relief with Respect to the
                       January 9, 2014 Conviction

       8.     Defendant’s first claim that his trial counsel was ineffective is
              without merit. Under Strickland v. Washington, to prevail on
              an ineffective assistance of counsel claim, Defendant must
              show (1) that his counsel’s performance was deficient and (2)
              that such deficient performance prejudiced the outcome of his
              case.14 Counsel’s performance is evaluated on an objective
              standard of reasonableness,15 with great deference given to
              counsel’s decisions.16

       9.     In the case at bar, Defendant contends that his trial counsel was
              ineffective because the Court did not impose the sentence
              agreed upon in the plea agreement. The record shows that
              Defendant’s trial counsel assisted Defendant with entering into
              a favorable plea agreement. Defendant’s trial counsel stated in
              his affidavit that he then felt “an argument attempting to
              persuade the Judge to limit the sentence to a three-year sentence
              as agreed to between the parties was the most efficient way in
              which to proceed.”17 However, this Court is not bound by an
              agreed upon sentence.18 Because the Court has discretion on
              whether impose the agreed upon sentence,19 a sentence in
              excess of the State’s recommendation does not give rise to a
              claim for ineffective assistance of counsel absent additional
              facts showing actual deficient performance. Accordingly,
              Defendant’s first claim is without merit.

       10.    Second, Defendant’s claim that he is entitled to postconviction
              relief because the State “fail[ed] to fulfill the integrity [of the
              plea agreement] during [Defendant’s] March 21, 2014


14
   466 U.S. 668, 669 (1984); see also Ploof v. State, 75 A.3d 811, 820-21 (Del. 2013).
15
   Ploof v. State, 75 A.3d 811, 821 (Del. 2013).
16
   Strickland v. Washington, 466 U.S. 668, 687 (1984).
17
   Aff. of Counsel, at 2.
18
   Somerville v. State, 703 A.2d 629, 633 (Del. 1997).
19
   Id.
                                             5
               sentencing hearing” is without merit.20 For the reasons stated
               above, the Court is not bound by the State’s recommendation.
               Accordingly, Defendant’s second claim is without merit.

     B. Defendant’s Motion for Postconviction Relief with Respect to the May
                               24, 2011 Charges

         11.   Defendant claims that his guilty plea to Possession with Intent
               to Deliver Heroin was not voluntary and knowing, but was
               coerced in connection with the irregularities at the Office of the
               Chief Medical Examiner and should be vacated. This claim is
               also without merit. As the United States Supreme Court’s held
               in United States v. Ruiz, “the Constitution, in respect to
               defendant’s awareness of relevant circumstances, does not
               require complete knowledge of the relevant circumstances, but
               permits a court to accept a guilty plea, with its accompanying
               waiver of various constitutional rights, despite various forms of
               misapprehension under which a defendant might labor.”21

         12.   Additionally, a guilty plea is akin to a confession before the
               Court that the defendant committed the crime to which he
               pleaded guilty. In Brown v. State, the defendant pleaded guilty
               to drug dealing, but then sought to retract his guilty plea in light
               of the irregularities at the OCME.22 However, the Delaware
               Supreme Court held that “[the defendant] freely admitted that
               he possessed heroin and intended to sell it. Nothing regarding
               the regrettable problems at the OCME therefore caused any
               injustice to [the defendant], who confessed that he was guilty of
               the crimes to which he pleaded guilty.”23 Accordingly, the
               Delaware Supreme Court held that the defendant was not
               entitled to withdraw his guilty plea in light of the irregularities
               at the OCME.24



20
   Def’s. Am. Mot. for Postconviction Relief, at 3.
21
   United States v. Ruiz, 536 U.S. 622, 623 (2002); see also Brown v. State, 108 A.3d
1201, 1205-06 (Del. 2015).
22
   Brown, 108 A.3d at 1205-06.
23
   Id. at 1207.
24
   Id.
                                            6
       13.    Moreover, the Delaware Supreme Court has held that “if a
              defendant knowingly pleaded guilty to a drug crime, he could
              not escape his plea by arguing that had he known that the
              OCME had problems, he would not have admitted to his
              criminal misconduct in possessing illegal narcotics.”25 In
              various cases before the Delaware Supreme Court, defendants
              have sought vacatur of their guilty pleas following the
              irregularities at the OCME.26 However, the Supreme Court has
              ruled in those cases, one of which which globally affirmed
              forty-five denials of Motions for Postconviction Relief that
              made similar claims,27 that the issues at the OCME are not
              grounds for vacatur of a finding of guilt after the defendants
              pleaded guilty.28

       14.    In the case at bar, Defendant has offered no evidence to suggest
              that his plea was coerced. The irregularities at the Office of the
              Chief Medical Examiner involved employees removing
              controlled substances from their containers.29 No evidence has
              been found, and Defendant has alleged no facts, that would
              suggest that those involved with the irregularities at the OCME
              engaged in coercing confessions from defendants.
              Additionally, like the defendant in Brown, Defendant offered a
              knowing and voluntary guilty plea to the Court, which the
              Court may accept as a confession that he is guilty of the crimes
              to which he pleaded guilty. Further, the Delaware Supreme
              Court has held numerous times that the mishandling of drug
              evidence at the OCME does not warrant vacatur of a guilty
              plea. Accordingly, Defendant’s claim that his guilty plea
              should be vacated is without merit.




25
   Aricidiacono v. State, 125 A.3d 677, 678 (Del. 2015).
26
   See, e.g., Brown v. State, 108 A.3d 1201 (Del. 2015); Aricidiacono v. State, 125 A.3d
677 (Del. 2015); Brewer v. State, 2015 WL 4606541 (Del. July 30, 2015).
27
   Aricidiacono v. State, 125 A.3d 677 (Del. 2015).
28
   Id.
29
   Id.
                                             7
                               III. CONCLUSION

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

Defendant’s Amended Motion for Postconviction Relief30 being denied,
Defendant’s Motion for Appointment of Counsel is DENIED AS MOOT.

IT IS SO ORDERED.

                                                         /s/Richard R. Cooch
                                                          Richard R. Cooch, R.J.

oc:    Prothonotary
cc:    Investigative Services




30
  In denying Defendant’s Amended Motion for Postconviction Relief, which stated
Defendant’s arguments for postconviction relief in both Criminal Identification Numbers
1005013493 and 1308004342, this Order addresses both Motions for Postconviction
Relief previously filed under those Criminal Identification Numbers.
                                            8
