IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Plaintiff,
Cr. ID No. 1703019541

V.

INNOCENT E. ROGERS,

Newer” Nee Nee Nee Nee eee” Nee” ee” ee”

Defendant.

Submitted: June 28, 2019
Decided: July 26, 2019

COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED.

Periann Doko, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Innocent E. Rogers, Sussex Correctional Institution, Georgetown, Delaware,
pro se.

PARKER, Commissioner
This 26th day of July 2019, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:
BACKGROUND, FACTS AND PROCEDURAL HISTORY

1. On February 21, 2017, Defendant Innocent Rogers was arrested for drug
dealing and related drug offenses. During the course of the investigation, police
recovered a cell phone and obtained a search warrant to examine it. A forensic
examination of the phone uncovered multiple photos of underage children engaged
in sexual acts. A subsequent search warrant was secured to examine the phone
further for evidence of child pornography.
2. On March 16, 2017, New Castle County police executed a search warrant for
additional digital devices at Rogers’ residence. A Toshiba laptop was examined and
revealed several keywords and search terms indicative of child pornography. In
addition, file names and fragments of child exploitation material were noted in the
system artifacts. Several file sharing programs were also located on both the laptop
and cell phone. In total, there were 29 videos of child exploitive material and 44
images of child exploitive material dating as far back as 2014 found on these
devices. !
3n On May 15, 2017, Rogers was indicted on twenty-five counts of Dealing in

Child Pornography. Each of these counts cairied a minimum-mandatory sentence

 

' March 23, 2018 Sentencing Transcript, at pgs. 14-15.
of two years of incarceration and a maximum sentence of twenty-five years of
incarceration. If convicted of all counts, Rogers faced a minimum-mandatory
sentence of 50 years of incarceration and a maximum sentence of over 600 years of
incarceration.

4. On November 7, 2017, Rogers entered a no-contest plea to one count of
Dealing in Child Pornography and three counts of Possession of Child Pornography.
Rogers acknowledged that as part of the plea agreement he was facing a two-year
minimum-mandatory prison term.? After accepting the plea, the Superior Court
revoked Rogers’ bail, deferred sentencing and ordered a presentence investigation.
5. Before sentencing, Rogers sought to withdraw his plea. On March 23, 2018,
the Superior Court denied Rogers’ motion to withdraw his plea’ and sentenced him
to a total period of thirty-four years at Level V incarceration, suspended after serving
two years in prison, followed by a period of probation.

6. Rogers filed a direct appeal to the Delaware Supreme Court.’ On appeal, the
Delaware Supreme Court affirmed the judgment of the Superior Court.> On appeal,

Rogers claimed that his counsel was ineffective and that the Superior Court abused

 

* Superior Court Docket No. 17- Plea Agreement dated November 7, 2017.
> March 23, 2018 Sentencing Transcript at pgs. 12-14.

* Rogers v. State, 2018 WL 5881536 (Del.).

> Id.
its discretion by denying his motion to withdraw his guilty plea. The Superior Court
would not consider Rogers’ ineffective assistance of counsel claim on direct appeal.®
7. As to Rogers’ claim that the Superior Court abused its discretion by denying
his motion to withdraw his plea, the Delaware Supreme Court held that the record
unequivocally established that Rogers entered into his plea voluntarily and that he
was not operating under any misapprehension or mistake as to his legal rights.’ The
Delaware Supreme Court concluded that under the circumstances of this case, the
Superior Court did not abuse its discretion in denying Rogers’ motion to withdraw
his plea.®
ROGERS’ RULE 61 MOTION

8. Rogers filed the subject Rule 61 motion on January 18, 2019. In the subject
motion, Rogers raises three claims: 1) trial counsel was ineffective for failing to file
a motion to suppress; 2) the search warrant was based on stale information, and
therefore, invalid; and 3) the Superior Court erred in denying his motion to withdraw
guilty plea.

9. Before making a recommendation, the record was enlarged and Rogers’ trial

counsel was directed to submit an Affidavit responding to Rogers’ ineffective

 

6 Td. at 2.
1 Id.
8 Td.
assistance of counsel claims. Thereafter, the State filed a response to the motion.
Rogers was given the opportunity to file a reply thereto.’
10. For the reasons discussed below, two of the claims raised in Rogers’ Rule 61
motion are procedurally barred, all of the claims raised in the motion were waived,
and all of the claims are without merit.
11. It is noted that Rogers entered into a no-contest plea. For all intents and
purposes, a no-contest plea operates as a guilty plea.!°

Two of Rogers’ Claims Are Procedurally Barred
12. Prior to addressing the substantive merits of any claim for postconviction
relief the court must first determine whether the defendant has met the procedural
requirements of Superior Court Criminal Rule 61.'! Ifa procedural bar exists, then
the claim is barred, and the Court should not consider the merits of the
postconviction claim.!
13. Superior Court Criminal Rule 61(i)(4) precludes Rogers from raising any
claims which were already raised and adjudicated in some fashion on Rogers’ direct
appeal. Moreover, Superior Court Criminal Rule 61(i)(3) requires that Rogers raise

his claims, with the exception of his ineffective assistance of counsel contentions,

 

? Super.Ct.Crim.R. 61(g).

'° Davenport v. State, 2019 WL 2513771, *3 (Del.).
'' Younger v. State, 580 A.2d 552, 554 (Del. 1990).
'2 Id.
on direct appeal.’ Rogers’ ineffective assistance of counsel claims are not
procedurally barred by Rule 61(i)(3) because a Rule 61 motion is the appropriate
vehicle for raising these claims.'*

14. In the subject motion, Rogers claims that the search warrant was based on
stale information, and therefore, invalid (Claim Two) and that the Superior Court
erred in denying his motion to withdraw his guilty plea (Claim Three) are
procedurally barred.

15. As to Rogers’ claim that the Superior Court erred in denying his motion to
withdraw his guilty plea, the Delaware Supreme Court has already held on direct
appeal that the record unequivocally established that Rogers entered his plea
voluntarily and that he was not operating under any misapprehension or mistake as
to his legal rights.'> The Delaware Supreme Court already held that under the facts
and circumstances of this case, the Superior Court did not abuse its discretion in
denying Rogers’ motion to withdraw his plea.'® This claim is therefore procedurally

barred as previously adjudicated.

 

'3 See, Malin v. State, 2009 WL 537060, at *5 (Del.Super. 2009); Desmond v.
State, 654 A.2d 821, 829 (Del. 1994).

14 Td.

'° Rogers v. State, 2018 WL 5881536 (Del.).

16 Td.
16. As to Rogers’ claim that the search warrant was stale and, therefore, invalid,
Rogers was required by Rule 61(1)(3) to raise this claim on direct appeal but failed
to do so.
17. Rogers had time and opportunity to raise any issue he desired to on direct
appeal. Rogers was aware of, had time to, and the opportunity to raise this claim on
direct appeal but failed to do so. Rogers has not established any prejudice to his
rights and/or cause for relief. Having been provided with a full and fair opportunity
to present any issue desired to be raised on direct appeal, any attempt at this late
juncture to raise, re-raise or re-couch a claim is procedurally barred.!7

All of Rogers’ Claims Were Waived Upon Entry of His Plea
18. In addition to two of Rogers’ claims being procedurally barred, all of Rogers’
claims were also waived upon the entry of his guilty plea.
19. The Delaware Supreme Court on direct appeal has already held that Rogers
entered into the plea voluntarily and that he was not operating under any
misapprehension or mistake as to his legal rights.'*

20. A no-contest plea operates for all intents and purposes as a guilty plea.'°

 

'7 Johnson v. State, 1992 WL 183069, at *1 (Del.); Duhadaway v. State, 877 A.2d
52 (Del. 2005).

'8 Rogers v. State, 2018 WL 5881536 (Del.).

'? Rogers v. State, 2018 WL 5881536, *3 (Del.).
21. Rogers’ voluntary valid plea waived his right to challenge any alleged errors,
deficiencies or defects occurring prior to the entry of his plea, including claims that
counsel was ineffective for failing to file a suppression motion, and any other claims
even those of constitutional proportions.”°
22. All of Rogers’ claims presented herein, including those alleging ineffective
assistance of counsel, stem from allegations of defects, errors, misconduct and
deficiencies that existed at the time of the entry of the plea. All of Rogers’ claims
were waived when he knowingly, freely and intelligently entered his plea.?!
Rogers’ Claims Are Without Merit
23. In addition to two of Rogers’ claims being procedurally barred and all of
Rogers’ claims being waived, all of Rogers’ claims are also without merit.
24. In order to prevail on an ineffective assistance of counsel claim in the context
of a plea challenge, Rogers must demonstrate that (1) his defense counsel’s conduct
fell below an “objective standard of reasonableness,” and (2) the deficient

performance prejudiced the defense.” The first prong requires Rogers to show by a

 

*° Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Modyica v. State, 2009 WL
2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).

*! See, Mills v. State, 2016 WL 97494, at *3 (Del.); Day v. State, 2011 WL
3617797 (Del.) (claim that counsel was ineffective for failing to file a suppression
motion was waived when defendant voluntarily entered his guilty plea, since
voluntary guilty plea waives any claims of error occurring prior to the entry of the
plea); Hickman v. State, 1994 WL 590495 (Del.).

* Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
preponderance of the evidence that defense counsel was not reasonably competent,
while the second prong requires him to show that there is a reasonable probability
that, but for defense counsel’s unprofessional errors, the outcome of the proceedings
would have been different.”

25. In the context of a plea challenge, it is not sufficient for the defendant to
simply claim that his counsel was deficient. The defendant must also establish that
counsel’s actions were so prejudicial that there was a reasonable probability that, but
for counsel’s deficiencies, the defendant would not have taken a plea but would have
insisted on going to trial.“ The burden of proving ineffective assistance of counsel
is on the defendant.”° Mere allegations of ineffectiveness will not suffice; instead, a
defendant must make and substantiate concrete allegations of actual prejudice.”®
26. The United States Supreme Court has reiterated the high bar that must be
surmounted to prevail on an ineffective assistance of counsel claim.2” The United
States Supreme Court cautioned that in reviewing ineffective assistance of counsel
claims in the context of a plea bargain, the court must be mindful of the fact that

“[p]lea bargains are the result of complex negotiations suffused with uncertainty,

 

3 Id. at 687-88, 694.

*4 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Hickman v. State,
1994 WL 590495 (Del.) (applying Strickland to guilty pleas).

*> Oliver v. State, 2001 WL 1751246 (Del.).

*® Younger v. State, 580 A.2d 552, 556 (Del. 1990).

?7 Premo v Moore, 131 S.Ct. 733, 739-744 (2011).
and defense attorneys must make careful strategic choices in balancing opportunities
and risks.”?8

27. In the subject case, it is important to emphasize that Rogers received a
significant benefit by entering into his no-contest plea. He was facing a 50-year
minimum-mandatory sentence if convicted of the indicted charges at trial, and as a
result of the plea, he was sentenced to two-years of unsuspended prison time.
Rogers’ plea represented a rational choice given the pending charges, the evidence
against him, and the possible sentences he was facing.

28. Inthe subject motion, Rogers first claims that his trial counsel was ineffective
for failing to file a motion to suppress. Trial counsel explained, during the hearing
on Rogers’ motion to withdraw his plea, and again, in his Affidavit in response to
Rogers’ Rule 61 motion, that he did not file a motion to suppress because he did not
believe there was any meritorious basis to do so.”?

29. Trial counsel explained that Rogers had been arrested for a drug investigation
and as part of that investigation, he gave the police the code to open his phone. The
police had also obtained a search warrant related to that drug investigation. A

forensic examination of the phone uncovered multiple photos of underage children

engaged in sexual acts. A subsequent search warrant was secured to examine the

 

°8 Td. at *741.
*? March 23, 2018 Sentencing Transcript, at pgs. 4-14; Superior Court Docket No.
35- Affidavit of Counsel in Response to Rule 61 Motion.
phone further for evidence of child pornography. That led to the police obtaining
another search warrant to go to Rogers’ house and seize his laptop computer.°°

30. Trial counsel further explained that even though Rogers took a plea to the drug
charges very quickly, Rogers is incorrect in his belief that the investigation into child
pornography that the police stumbled upon, should have been discontinued after the
drug plea and any images stumbled upon should be suppressed.*!

31. Trial counsel represented that what Rogers does not seem to understand is that
the State’s original seizure of the cell phone was lawful and rationally based on the
crime of drug dealing, and that when the police stumbled onto the pornographic
images they stopped the search and obtained a subsequent search warrant to expand
the investigation.** There was no good faith basis to seek the suppression of the
pornographic images obtained pursuant to the search warrants obtained under the
facts and circumstance of this case.*?

32. An ineffective assistance of counsel claim based on the failure to object to
evidence is without merit if trial counsel lacked a legal or factual basis to object to

the evidence.** Counsel did not file a motion to suppress in this case because he did

 

*° March 23, 2018 Sentencing Transcript, at pgs. 5-14.

3! March 23, 2018 Sentencing Transcript, at pgs. 5-14.

*? March 23, 2018 Sentencing Transcript, at pgs. 5-14.

3 March 23, 2018 Sentencing Transcript, at pgs. 5-14.

4 State v. Exum, 2002 WL 100576, at *2 (Del.Super.), affirmed, 2002 WL
2017230, at *1 (Del.).

10
not believe he had any good faith basis to do so. Trial counsel cannot be deemed
ineffective for failing to file a motion to suppress, when there was no basis to support
such a motion. Conclusory, unsupported and unsubstantiated allegations are
insufficient to establish a claim of ineffective assistance of counsel.*> This claim is
without merit.

33. Rogers second claim, that the search warrant was invalid because it was based
on stale information, in addition to being procedurally barred for not having raised
it on direct appeal, and waived at the time of the entry of the plea, is also without
merit. The search warrant was not stale and was not invalid. The drug investigation
led to the search of the cell phone, which led to the initial discovery of child
pornographic images, which led to an expansion of the scope of the investigation
into child pornography. There was nothing improper about the initial search warrant,
or the search warrants obtained thereafter as the investigation expanded based on the
evidence discovered. This claim is without merit.

34. Finally, Rogers claims that the Superior Court erred in denying his motion to

withdraw his plea. The Delaware Supreme Court already held that the Superior

 

°° Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Brown, 2004 WL
74506, *2 (Del.Super. 2004)(conclusory and unsubstantiated allegations of
unprofessional conduct are insufficient to support a motion for postconviction
relief).

11
Court did not err in denying his motion to withdraw his plea.*° This claim is without
merit.

35. Rogers’ claims are procedurally barred, waived and without merit.

For all of the foregoing reasons, Rogers’ Motion for Postconviction Relief

should be DENIED.

IT ISSO RECOMMENDED.

    

V/A.)

Cotfimistioner Yynne M. Parker

 

cc: Prothonotary
Joseph M. Leager, Esquire

 

°° Rogers v. State, 2018 WL 5881536 (Del.).

12
