SUPERIOR COURT
oFTHl-:

STATE OF DELAWARE

RICHARD R. COOCH NEW cAsTl_E couNTY couRTHousE
REs/DENTJLJDGE 500 NORTH KING STREET, SUlTE 10400
Wn.MlNc~roN, DE\_AWARE 19801-3733

TEL_EPHoNE (302) 255-0664

Mark A. Denney, Jr., Esquire
Deputy Attorney General
Departrnent of Justice

820 North French Street
Wilrnington, Delaware 19801
Attorney for State of Delaware

Caroline G. Cinquanto, Esquire

The Law Office of Caroline Goldner Cinquanto
1518 Walnut Street, Suite 807

Philadelphia, Pennsylvania 19102

Attorney for Defendant

Re: State of Delaware v. Kiavre Braxton
ID#’s 1802005743 / 1802004304A / 1802005994

Submitted: September 10, 2018
Decided: October 11, 2018

On Defendant’s Motion to File Motion to Suppress Out of Time. DENIED.

Dear Counsel:

I have reviewed Defendant’s Motion to File Motion to Suppress Out of Time,
Defendant’s untimely Motion to Suppress, and the State’s Response to the Motion
to File Motion to Suppress Out of Time. The Court DENIES Defendant’s Motion to
File Motion to Suppress Out of Time.

The Superior Court is vested with broad discretion to enforce its rules of
procedure and pre-trial orders.' Pursuant to that broad power, it is Well recognized

 

l See Super. Ct. Crim. R. 12(b)(3), 17.1; Gebhart v. Ernest DiSabatino & Sons, Inc. 264 A.Zd
157 (Del. 1990).

that the Court may refuse to hear the merits of an untimely motion to suppress.2
Absent a showing by defendant that “exceptional circumstances prevented the filing
of a timely motion[,]” the Court will deny any such motion or request to file late.3
Even a change in a defendant’s representation is no excuse for an untimely motion
because “prior counsel could have filed [a] motion if [that attorney] had believed
there was a basis to do so.”4 Defendant ultimately bears the burden to prove
exceptional circumstances5

In Defendant’s case, a Uniform Scheduling Order established how matters
would proceed in this sweeping Racketeering prosecution by the State. In that Order,
the Court set the deadline for “any MOTIONS” as May 4, 2018. Defendant’s prior
counsel filed the Motion to File Motion to Suppress Out of Time on September 10,
2018, over four months beyond the deadline. Prior Counsel acknowledged he sought
to file the motion to suppress “out of time.”6 Caroline Cinquantro, Esq. was admitted
pro hac vice on October 10, 2018 as new counsel for Defendant.

Defendant supports the motion to file out of time partially by stating that the State
provided the defense with certain discoverable information pursuant to Del. Super.
Ct. R. Crim. Pro. 16(a)(1)(A) “only after” final case review. The State contends this
evidence, being transcripts of conversations between defendant and a confidential
informant, does not equate to newly discovered materials which would prompt a
challenge to the challenged search warrant. In Defendant’s motion to suppress, it is
clear the facts supporting suppression are drawn from “the search warrant and
affidavit in support of the search.”7 The post-final case review discovery does not
appear to have served as a basis for Defendant’s untimely motion.

Defendant’s prior counsel acknowledged that he did not discover or recognize
any grounds for a motion to suppress until after a review of his files in preparation
for the final case review held on Sept. 4, 2018, 4 months after the motion deadline.
Counsel does not explain why he failed to discover any grounds for a motion to
suppress until now. Although no fault on the part of Defendant’s current counsel,
there was “ample opportunity on the part of competent [prior] counsel” to file a

 

2 See Barrzett v. State, 691 A.2d 614, 616-17 (Del. 1997), abrogated on other grounds by
Lecates v. State, 987 A.2d 413, 420 (Del. 2009); Miller v. State, 3. A.3d 1098 (Table), 2010 WL,
3328004, at *2 (Del. 2010); Davis v. State, 38 A.3d 278, 281 (Del. 2012).

3 Davis, 38 A.3d at 281 (citing Barnett, 691 A.2d at 616); see also Permewell v. Stale, 822 A.2d
391 (Table), 2003 WL 2008197, at *1-2 (Del. 2003); Miller, 2010 WL 3328004, at *2.

4 leler, 2010 wL 3328004, at *2.

5 Davl`s, 38 A.3d at 281 (citing Barnett, 691 A.2d at 616).

6 Def.’s Mot. to File Mot. to Suppress Out of Time, at 1.

7 Def.’s Mot. to Suppress, at 2 n.l.

timely suppression motion.8

Defendant has failed to show that exceptional circumstances prevented the filing
of a timely motion to suppress which would warrant consideration of the untimely
motion. Therefore, Defendant’s Motion to File Motion to Suppress Out of Time is
DENIED.

Very truly yours,
… \MM»L

RRC
cc: Prothonotary
Stephanie J. Volturo, Esquire
Office of Defense Services

 

8 Davis, 38 A.3d at 281 (citing Pennewell, 2003 WL 2008197, at *2).

