IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,

Cr. ID No. 1607020992

RICHARD S. FERRY,

Defendant.

Nee Nee ee ee ee ee” ee’ ee” ee

Submitted: July 10, 2019
Decided: July 23, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT?’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE SUMMARILY DISMISSED.

Matthew B. Frawley, Esquire, Deputy Attorney General, Department of
Justice, Wilmington, Delaware, Attorney for the State.

Richard Ferry, PA/ DOC, S.C.I. Pine Grove, P.O. Box 33028, St.
Petersburg, Florida, pro se.

PARKER, Commissioner
This 23rd day of July 2019, upon consideration of Defendant’s Motion
for Postconviction Relief, it appears to the Court that:

BACKGROUND, FACTS AND PROCEDURAL HISTORY
l. On August 29, 2016, Defendant Richard S. Ferry was indicted on
Burglary Second Degree, Theft of a Firearm, Theft of Property valued at less
than $1,500, Criminal Mischief, Possession of a Firearm by a Person
Prohibited, Possession of Ammunition by a Person Prohibited, two counts of
Illegal Possession of a Controlled Substance, and Possession of Drug
Paraphernalia.
2. The charges stemmed from a burglary that occurred on July 27, 2016
at a residence in New Castle, Delaware. On the morning of July 27, 2016,
Ferry entered the home of a 47-year-old victim, in New Castle, Delaware, by
breaking through the basement window. Once inside the home, Ferry entered
the basement where the victim’s 26-year-old son resided and stole his black
briefcase containing a Kel-Tec PLR-16 .223 caliber pistol and approximately
500 rounds of ammunition. The pistol had a fully loaded 100 round drum
magazine, a mount scope, and foregrip.
B,. Shortly after the burglary, a picture of the victim’s uncle, Defendant
Ferry, was seen online of him posing with the stolen gun. The caption under

the picture stated, “Who want it?”
4. Ferry was arrested. Ferry’s friend, Brandi Hitchens, told police that
Ferry had broken into the residence, stole the gun, sold it, and purchased drugs
with the money he obtained.

5. On January 24, 2017, Ferry pled guilty to Burglary Third Degree
(lesser-included offense of Burglary Second Degree), Theft of a Firearm and
Possession of a Firearm by a Person Prohibited.!

6. In exchange for the guilty plea, the State agreed to dismiss all the other
charges in the indictment.’ As part of the plea agreement, the State agreed to
seek to have Ferry declared a habitual offender pursuant to 11 Del. C. §
4214(c) on only the charge of Possession of the Firearm By a Person
Prohibited. The State further agreed to cap its sentence recommendation to
the minimum-mandatory period of 15 years of unsuspended Level V time.?
7. Prior to sentencing, a pre-sentence investigation was conducted. Also
prior to sentencing, defense counsel submitted a mitigation report which
detailed Ferry’s substance abuse issues, mental health issues, juvenile

delinquency, treatment attempts, and all other aspects of Ferry’s background

 

' Superior Court Docket No. 10- Plea Agreement.
* Superior Court Docket No. 10- Plea Agreement.
> Superior Court Docket No. 10- Plea Agreement.
that the defense believed should be taken into consideration as mitigating

factors at sentencing.‘

8. On April 28, 2017, the Superior Court granted the State’s motion to

declare Ferry a habitual offender, and thereafter sentenced him to the

minimum-mandatory period of 15 years of unsuspended Level V time,

followed by probation.

9. Ferry did not file a direct appeal to the Delaware Supreme Court.
FERRY’S RULE 61 MOTION

10. On June 26, 2019, Ferry filed the subject Rule 61 motion. This motion

was filed over two years after Ferry’s conviction became final. In the subject

motion, Ferry raises ineffective assistance of counsel claims as to the pre-trial

process, including the alleged lack of disclosure of the discovery provided by

the State, ineffective assistance as to the handling of his plea, and claims that

his plea was not voluntary.

11. Ferry’s Rule 61 motion is time-barred and otherwise procedurally

barred.

12. Prior to addressing the substantive merits of any claim for

postconviction relief the court must first determine whether the defendant has

 

* See, Superior Court Docket No. 18.
met the procedural requirements of Superior Court Criminal Rule 61.> If a
procedural bar exists, then the claim is barred and the court should not
consider the merits of the postconviction claim.°®

13. Rule 61 (i) imposes four procedural imperatives: (1) the motion must
be filed within one year of a final order of conviction;’ (2) any basis for relief
must be asserted in the first timely filed motion for postconviction relief
absent exceptional circumstances (ie. discovery of new evidence that creates
a strong inference of defendant’s actual innocence or new rule of
constitutional law that would render the conviction invalid) warranting a
subsequent motion being filed; (3) any basis for relief must have been asserted
at trial or on direct appeal as required by the court rules unless the movant
shows prejudice to his rights and cause for relief; and (4) any basis for relief
must not have been formally adjudicated in any prior proceeding. The bars to
relief however do not apply to a claim that the court lacked jurisdiction or to
a claim that new evidence exists that movant is actually innocent or that there

is anew law, made retroactive, that would render the conviction invalid.

 

> Younger v. State, 580 A.2d 552, 554 (Del. 1990).
° Younger v. State, 580 A.2d 552, 554 (Del. 1990).
7 Super.Ct.Crim.R. 61(i)(1).

§ Super.Ct.Crim.R. 61 (effective June 4, 2014).
14. In the subject action, Rule 61(i)(1) precludes this court from
considering Ferry’s claims raised herein because Ferry’s motion is time-
barred.’ To be timely, a motion for postconviction relief must be filed within
one year after the judgment of conviction is final.!? Ferry’s conviction became
final on or about May 27, 2017.'' This motion was filed on June 26, 2019,
over two years later, outside the applicable one-year limit. Ferry’s claims, at
this late date, are time-barred.

15. Rule 61(i)(2) and Rule 61(i)(5) further preclude this court’s
consideration of Ferry’s motion since Ferry has not satisfied the pleading
requirements for proceeding with this motion. Since Ferry’s motion was not
timely filed, in order to overcome the procedural hurdles, Ferry must establish
that the court lacked jurisdiction; or that new evidence exists that creates a
strong inference that defendant is actually innocent of the underlying charges
for which he was convicted; or that the existence of a new rule of
constitutional law made retroactive to this case would render his convictions
invalid.

16. In the subject motion, Ferry is unable to overcome the procedural

hurdles of Rule 61(i) by showing an exception in Rule 61(i)(5) applies. Ferry

 

? Younger v. State, 580 A.2d 552, 554 (Del. 1990).
'® Super.Ct.Crim.R. 61(i)(1).
'’ Super.Ct.Crim.R. 61(m)(1).
has not established that the court lacked jurisdiction, that any new evidence
existed to create a strong inference that he is actually innocent of the
underlying charges, or that a new rule of constitutional law exists that would
render his conviction invalid.

17. Ferry does not raise anything new or recently discovered. All of Ferry’s
claims stem from facts known to him at the time of his plea in January 2017.
Ferry does not raise any new evidence, let alone any new evidence that would
create a strong inference that he is actually innocent. Moreover, Ferry does
not claim the existence of any new rule of constitutional law that would be
applicable to this case. As such, Ferry has failed to meet the pleading
requirements allowing him to proceed with his Rule 61 motion. Ferry’s
motion should be summarily dismissed.

18. Rule 61(i)(3) further prevents this court from considering any claim
raised by Ferry at this late date that had not previously been raised. Ferry was
aware of, had time to, and the opportunity to raise the claims presented herein
in a timely filed motion. Ferry’s claims raised in the subject motion stem from
facts known to him at the time of his plea in January 2017.

19. Ferry has not established any prejudice to his rights and/or cause for
relief. Ferry had time and opportunity to raise any issue raised herein in a

timely filed postconviction motion. There is no just reason for Ferry’s delay
in doing so. Having been provided with a full and fair opportunity to present
any issue desired to be raised in a timely filed motion, any attempt at this late
juncture to raise, re-raise or re-couch a claim is procedurally barred.

20. The claims raised in Ferry’s Rule 61 motion are time-barred and

otherwise procedurally barred.

For all of the foregoing reasons, Ferry’s motion for postconviction

relief should be SUMMARILY DISMISSED.

IT ISSO RECOMMENDED.

  

Comfhissiorr Lynne M. Parker

cc: Prothonotary
Colleen E. Durkin, Esquire
