IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. )
) Cr. LD. 1210013321
OTIS PHILLIPS, )
)
Defendant. )
ORDER

On this 20th day of November, 2019, upon consideration of the Defendant's
Motion for Postconviction Relief, the Commissioner’s Report and Recommendation,
Defendant’s Appeal from the Commissioner’s Findings of Fact and Recommendations,
and the record in this case, it appears that:

1. On November 21, 2014, a jury found Defendant, Otis Phillips, guilty of
Murder in the First Degree, Murder in the Second Degree (as a lesser-included
offense of Murder in the First Degree), Manslaughter (as a lesser-included
offense of Murder in the First Degree), Gang Participation, Conspiracy in the
First Degree, five counts of Possession of a Firearm During the Commission
of a Felony, Assault Third Degree (as a lesser-included offense of Assault in
the First Degree), Assault Second Degree, and Reckless Endangering. The

jury acquitted Defendant of one count of Possession of a Firearm During the

 

1 The facts of this case have been sufficiently summarized in the Supreme Court’s
appellate decision and therefore need not be reiterated in totality here.

1
Commission of a Felony, and Conspiracy Second Degree. Defendant was
sentenced to death, life imprisonment, and an additional 130 years in prison.

2. Defendant filed a direct appeal to the Delaware Supreme Court where the
Supreme Court affirmed the judgment but vacated Defendant’s death
sentence.”

3. Defendant filed a pro se Motion for Postconviction Relief on March 6, 2017.
Counsel was appointed for Defendant on December 13, 2017. Appointed
counsel filed an Amended Motion for Postconviction Relief on April 15,
2019,

4. The Court referred this Motion to Superior Court Commissioner Katharine L.
Mayer pursuant to 10 De/. C. § 512(b) and Superior Court Criminal Rule 62
for proposed findings of facts and conclusions of law.

5. The Commissioner filed a Report and Recommendation that Defendant’s
Motion for Postconviction Relief should be DENIED. The instant appeal is
based on the Commissioner’s October 1, 2019 Order.

6. Defendant appeals the Commissioner’s Order, claiming: 1) it was improper
for Trial Counsel to file an unsolicited affidavit with this Court and for the
Court not to allow Defendant an opportunity to respond to Trial Counsel’s

claims; 2) his claim of ineffective assistance of counsel should not be barred

 

2 Phillips v. State, 154 A.3d 1130 (Del. 2017).
2
as previously adjudicated under Rule 61(i)(4); and 3) Trial Counsel rendered
ineffective assistance by failing to move for a mistrial, a decision which was
unreasonable and which caused Defendant to suffer prejudice.

. Trial Counsel did not file an unsolicited affidavit with the Court. In the first
briefing schedule issued for Defendant’s postconviction relief motion, the
Court mandated that “Trial Counsel shall submit an affidavit responding to
any allegations in the amended motion.” Trial Counsel’s affidavit was also
accounted for in the amended briefing schedules issued by this Court on
March 1, 2018 and July 20, 2018.

. Trial Counsel filed their affidavit on August 26, 2019. Defendant filed his
Reply in Support of his Amended Motion for Postconviction Relief on August
29, 2019. On November 14, 2019, this Court gave Defendant an opportunity
to supplement his response to Trial Counsel’s affidavit. On November 18,
2019, counsel for Defendant stated that he “[did not] have anything to add.”
Defendant has responded to Trial Counsel’s affidavit.

. The Commissioner found Defendant’s ineffective assistance of counsel claim
“barred by Superior Court Criminal Rule 61(i)(4) as formerly adjudicated.”
However, the Commissioner engaged in a thorough analysis of such claims
and concluded that Defendant “failed to satisfy the dual test for relief” as laid

out by the U.S. Supreme Court in Strickland v. Washington.
10.After a careful reading of Defendant’s Motion and the Commissioner’s
Recommendation, this Court concludes that Defendant’s motion should be
DENIED based on the Commissioner’s analysis of Defendant’s ineffective
assistance of counsel claim.
IT IS ORDERED that the Commissioner’s Report, including _ its

Recommendation, is adopted by the Court. Defendant’s Motion for Postconviction

ef

The Honorable Calvin L. Scott, Jr.

Relief is DENIED.

cc: Prothonotary
Commissioner Katharine L. Mayer
Andrew J. Vella, Esquire
Benjamin S. Gifford IV, Esquire
