IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
v. ) ID No. 1308006490A & B
)
MICHAEL DWYER, ) Cr. A. Nos. 513-08-05531, etc.
Defendant. )

Subrnitted: November 19, 2018
Decided: February 1, 2019

.(M
Upon Defena’ant Michael Dwyer ’S Motz'on to Proceea' Pro Sefor the Purpose of
Filing a Requestfor a Certijicate of Eligibl`lity
Under 11 Del. C. § 4214@ and Del. Super. Ct. Spec. R. 2017-](d),
DENIED.

This 1St day of February, 2019, upon consideration of the Defendant Michael
Dwyer’s Motion to Proceed Pro Se for the Purpose of Filing a Request for a
Certit`lcate ofEligibility (D.I. 30) and the record in this matter, it appears to the Court
that:

(1) On July 30, 2014, a Superior Court jury convicted Michael Dwyer of

Theft of Firearm.l A month later, a second Superior Court jury convicted Dwyer of

Possession of a Firearm By a Person Prohibited (PFBPP).2 Both counts arose from

 

l Verdict Form, State v. Michael Dwyer, ID No. 1308006490A (Del. Super. Ct. July 30,
2014) (D.I. 51-53).

2 Verdict Form, State v. Michael Dwyer, ID No. 1308006490B (Del. Super. Ct. Aug. 27,
2014) (D.I. 10-12).

the same criminal incident, Were charged in the same Information, but had been
severed just before DWyer’s first trial.3

(2) DWyer’s sentencing for both occurred a few months later, on October
3, 2014, after a pre-sentence investigative report Was prepared and the State filed a
habitual criminal petition.4 DWyer Was sentenced to the minimum required for the
triggering PFBPP conviction (Sl3-08-0553I) for Which the State sought habitual
criminal sentencing under the then-extant Habitual Criminal Act: 8 years at Level
V.5 For the theft of a firearm count, he received an additional one year of

imprisonment, again to be served under the provisions of ll Del. C. § 4214(a) as it

 

3 Information, State v. Michael Dwyer, ID No. 1308006490A(De1. Super. Ct. Oct. 16, 2013)
(D.I. 4); Severance Order, State v. Michael Dwyer, ID No. 1308006490A (Del. Super. Ct. July 23,
2013) (D.I. 43).

4 DEL. CODE ANN. tit. 11, § 4214(a) (2013) (providing that a person Who had been thrice
previously convicted of a felony and Was thereafter convicted of another felony could be declared
a habitual criminal).

5 Ia'. (any person sentenced under then-existing § 4214(a) had to receive a minimum sentence
of not less than the statutory maximum penalty otherwise provided for any fourth or subsequent
Title ll violent felony that formed the basis of the State’s habitual criminal petition); DEL. CODE
ANN. tit. ll, §§ l448(c) and (e), 4201(c) and 4205(b)(4) (2013) (PFBPP by one previously
convicted of a violent felony Was, When DWyer committed his crimes, and is noW, a class D violent
felony With a statutory maximum of eight years imprisonment). DWyer had been previously
convicted of at least one prior violent felony: assault second degree in 1994. See Sentencing
Order, State v. Michael Dwyer, ID No. 9403014783 (Del. Super. Ct. Aug. 2, 1994) (D.I. 6); see
also Motion to Declare Def. an Habitual Offender, State v. Michael Dwyer, ID Nos.
1308006490A&B, at (Del. Super. Ct. Oct. 3, 2014) (D.I. 59; D.I. 15).

then existed.6 Dwyer’s cumulative nine-year incarcerative term will be followed by
work release and probation.7 Dwyer’s sentencing order notes that his habitual
criminal sentence is effective on October 3, 2014.8

(3) lt appears that Dwyer has recently been in contact with the Office of
Defense Services and was notified that he is not eligible to seek relief under ll Del.
C. § 4214(f).

(4) Dwyer has requested permission to proceed pro se so that he might a
apply for certificate of eligibility to file a petition seeking exercise of the Court’s
jurisdiction to modify his sentence under ll Del. C. § 4214(f).9 In his view, Dwyer
“now avers in good faith that he does meet all requirements for at least a ‘certificate

vle

of eligibility.

 

6 Id. (under then-existing § 4214(a), when sentencing for any other felony the Court was not
bound to impose any minimum but still could, in its discretion, impose a sentence of up to life
imprisonment for that non-violent triggering felony).); DEL. CODE ANN. tit. ll, §§ 1451, 4201(c)
and 4205(b)(6) (2013) (Theft of a Firearm, while a class F Title l l felony, has never been classified
as a violent felony).

7 Sentencing Order, State v. Michael Dwyer, ID Nos. 1308006490A&B, at (Del. Super. Ct.
oct 3, 2014) (D.I. 58; D.I. 14).

8 Ia’. His sentencing order also reflects that Dwyer received 269 days for time previously
served. Id.

9 D.I. 75 and D.I. 30; Del. Super. Ct. Spec. R. 2017-1(0)(2) (“The court will not consider a
pro Se request for a certificate of eligibility or any other pro se filing under this rule unless the
petitioner has been granted permission to proceed pro se.”).

10 D.I. 75 and D.I. 30.

(5) The Court has carefully considered the Dwyer’s motion to proceed pro
se and suggestion that he is due a certificate of eligibility. Because Dwyer has not
met the time-served requirement set forth in ll Del. C. § 4214(f), he cannot seek
sentence review under that statute. And so there is no basis for the Court to exercise
its discretion under Del. Super. Ct. Spec. R. 2017 to allow him to proceed pro se and
file a certificate of eligibility.

(6) For his PFBPP conviction (S13-08-0553I), Dwyer does meet the type-
of-sentence eligibility requirement set forth in 11 Del. C. § 4214(f).ll But Dwyer
does not meet the time-served eligibility requirement set forth in 11 Del. C. §
4214(f).12

(7) Under § 4214(f), an inmate meets the time-served eligibility
requirement when he “has served a sentence of incarceration equal to any applicable

mandatory sentence otherwise required by [the new provisions of 1 1 Del. C. § 4214]

 

ll DEL. CODE ANN. tit. 11, § 4214(f) (2018) (providing that an inmate must be serving a
sentence imposed upon him as “an habitual criminal [that is] a minimum sentence of not less than
the statutory maximum penalty for a violent felony pursuant to 4214(a) of this title, or a life
sentence pursuant to 4214(b) of this title prior to July 19, 2016”). See Clark v. State, 2018 WL
1956298, at * 3 (Del. Apr. 24, 2018) (“a minimum sentence of not less than the statutory maximum
penalty for a violent felony” means the inmate must have received the minimum sentence a judge
was constrained to impose under the prior version of the Habitual Criminal Act, and so, where a
sentencing judge exercised his or her discretion to impose greater than the minimum required
under pre-2016 § 4214(a), the inmate cannot seek modification under § 4217(f)); Durham v. State,
2018 WL 2069057, at * 1 (Del. May 2, 2018) (same); State v. Williams, 2018 WL 2938313, at *2
(Del. Super. Ct. June 8, 2018) (same).

12 It appears that when Dwyer consulted with the Office of Defense Services, he was
advised by its counsel that he did not meet this statutory requirement Def. Mot., at 1-2.

_4_

or the statutes describing said offense or offenses [for which the inmate was
sentenced], whichever is greater.”13 To determine if this requirement is met the
Court to determines where in the new habitual criminal Sentencing regime a potential
§ 4214(f) petitioner would fall.14

(7) Prior to the subject PFBPP conviction (S13-08-05531) for which he is
serving a habitual criminal sentence, Dwyer had accrued at least the following felony
convictions that would be used to reckon his habitual criminal status: Carrying a
Concealed Deadly Weapon (IN84-01-1593); Assault in the Second Degree (IN94-
04-0510); and Theft of a Firearm (S01-l 1-01891).15 Dwyer’s prior conviction for
Assault in the Second Degree (lN94-04-0510) and the triggering PFBPP conviction
(S13-08-0553I) were each for a “Title 11 violent felony.”16

(8) Under current 11 Del. C. § 4214(0), Dwyer, who has thrice before been
convicted of felonies-one of which was a Title ll violent felony-must receive a

minimum sentence of not less than the statutory maximum penalty otherwise

 

13 DEL. CoDE ANN. rit. 11, § 4214@ (2018).
'4 State v. Lewis, 2018 WL 4151282, *2 (Del. Super. Ct. Aug. 28, 2018).

15 See Motion to Declare Def. an Habitual Offender, State v. Mz`chael Dwyer, ID Nos.
1308006490A&B, at (Del. Super. Ct. OC'[. 3, 2014) (D.I. 59; D.I. 15).

16 DEL. CODE ANN. tit. ll, § 4201(0) (2018) (“The following felonies shall be designated as
violent felonies . . . Title 11, Section . . . 612 Assault in the Second Degree . . . l448(e)
Possession of a Deadly Weapon by Persons Prohibited (Firearrn or Destructive Weapon Purchased,
Owned, Possessed or Controlled by a Violent Felon . . .”).

_5_

provided for the triggering PFBPP conviction (S13-08-0553I) that is the Title 11
violent felony that formed the basis of the State’s habitual criminal petition.17 Dwyer
would, therefore, have to serve a minimum of eight years before he could be eligible
for § 4214(f) consideration

(9) Put another way, Dwyer’s minimum mandatory sentence for PFBPP
under both the current and the pre-2016 provisions of the Habitual Criminal Act is
exactly the same_eight years that cannot be suspended.18 And he not yet served
those eight years.19 But even when he does, he will still not be eligible for § 4214(f)
consideration as it is but one segment of a two-part cumulative nine-year

imprisonment term, neither component of the which is within § 4214(f)’s reach.20

 

17 See DEL. CODE ANN. tit. 11, § 4214(0) (2018) (providing now that one, like Dwyer, who is
declared a habitual criminal and whose predicate convictions include at least one prior violent Title
11 felony must receive a minimum sentence of not less than the statutory maximum penalty
otherwise provided for each triggering Title 11 violent felony that forms the basis of the State’s
habitual criminal petition); DEL. CODE ANN. tit. 11, §§ 1448(0) and (e), 4201(c) and 4205(b)(4)
(2013) (PFBPP by one previously convicted of a violent felony was, when Dwyer committed his
crimes, and is now, a class D violent felony with a statutory maximum of eight years
imprisonment).

18 Compare n.5, supra., and n.l7, supra

19 As noted above, Dwyer’s eight-year habitual term for PFBPP began to run on October 3,
2014.

20 Because Dwyer’s habitual criminal sentence for his theft of a firearm conviction is wholly
discretionary, he cannot invoke § 4214(f) to obtain separate review of that sentence. See Clark,
2018 WL 1956298, at *3 (Section 4214(f) does not allow for review of habitual criminal sentences
that are wholly discretionary).

_6_

NOW, THEREFORE, IT IS ORDERED that Defendant Michael Dwyer’s
Motion to Proceed Pro Se for the Purpose of Filing a Request for a Certificate of
Eligibility is DENIED; it plainly appears from his motion and the record of prior

proceedings in this case that he is not eligible for relief under 11 Del. C. § 4214(f)

%;>¢_~>

Paul R. Wallace, Judge

and Del. Super. Ct. Spec. R. 2017-l(d).21

Original to Prothonotary - Sussex County

cc: Hon. E. Scott Bradley
Mr. Michael Dwyer, pro se
Todd E. Conner, Esquire
Dawn M. Williams, Esquire
J ames P. Murray, Esquire
David Hume, IV, Chief Prosecutor, Sussex County
Casey L. Ewart, Deputy Attorney General

 

21 Clark v. State, 2018 WL 1956298 (Del. Apr. 24, 2018) (this Court did not err when it
denied an inmate’s request for appointment of conflict counsel to seek a certificate of eligibility
upon finding then that the inmate was ineligible for relief under § 4214(f)); Durham v. State, 2018
WL 2069057 (Del. May 2, 2018) (same when this Court denied permission for inmate to proceed
pro se to seek a certificate of eligibility for the same reason); Coble v. State, 2018 WL 6595333
(Del. Dec. 13, 2018) (same).

_7_

