IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE ) ID. No. 1009005841
) In and for Kent County
V. )
)
DEANDRAE THOMAS, )
)
Defendant. )

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Kathleen A. Dickerson, Esquire, Deputy Attorney General, Department of J ustice, for
the State of Delaware.

Jonathan Layton, Esquire, Wilmington, Delaware for Defendant.

FREUD, Cornmissioner
March 28, 2018

The Defendant, Deandrae Thomas (”Thomas”) pled guilty on January 26, 2012
to one count of Racketeering, 11 Del. C. § 1503; one count of Trafflcking Cocaine
> 100 Grams, 16 Del. C. § 4753A; two counts of Trafflcking Cocaine 10 - 50G, 16
Del. C. § 4753A; one count of Possession of a Firearm by a Person Prohibited
(“PFBPP”), 11 Del. C. § 1448; one count of Possession of a Firearm During the
Commission of a Felony (“PFDCF”), 11 Del. C. § 1447A; two counts of Possession
of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447; one
count of Assault in the Second Degree, 11 Del. C. § 612; one count of Reckless

State v. Thomas
ID No. 1009005841
March 28, 2018

Endangering in the First Degree, 11 Del. C. § 604; one count of Resisting Arrest 11
Del. C. § 1257; and one count of Failure to stop for a Police Signal, 21 Del. C. §
4103. Thomas was also facing an additional eighty-seven counts including multiple
counts of Drug Dealing, Trafficking, Robbery, Attempted Murder and weapons
charges. Nolle prosequis were entered on the remaining charges in exchange for
Thomas’ guilty plea. The parties agreed to a presentence office investigation at
Thomas’ insistence. Had Thomas gone to trial and been found guilty of each of the
charges, he faced a minimum mandatory sentence of 62 years in jail up to life
incarceration On March 29, 2012 this Court sentenced Thomas to a total of 58 years
incarceration, suspended after serving 37 years, for probation. Thomas filed an
appeal to the State Supreme Court in which he argued his twelve year sentence for
Racketeering violated the Delaware Constitution prohibition against cruel and
unusual punishment. Thomas also argued his counsel had been ineffective The
Delaware Supreme Court found no merit in Thomas’ sentencing argument and
affirmed his conviction and sentence. The Court did not address Thomas’ claim of
ineffective assistance of counsel.l On September 26, 2013, Thomas filed a motion
requesting to file a Motion for Postconviction Relief pursuant to Superior Court
Criminal Rule 61 and he also requested the appointment of counsel. The Court
granted the request to appoint counsel. Alexander M. Funk, Esquire was initially
appointed to represent Thomas however was unable to continue the representation

Substitute counsel, Jonathan Layton, Esquire (“Appointed Counsel”) was appointed

 

1 rhomas v. Srare, 2012 wL 5499649 (Del.).

2

State v. Thomas
ID No. 1009005841
March 28, 2018

on December 21, 2015. Appointed Counsel filed the pending Motion for
Postconviction Relief on behalf of Thomas on October 3, 2016 alleging ineffective
assistance of Trial Counsel.
FACTS

As set forth in the State’s Response to the motion for postconviction relief
and documented in the State’s Appendix, in 2009 the Delaware State Police began
an investigation into a drug trafficking ring in Kent County, Delaware. The
investigation identified a number of participants including Marquinn Bordley
(“Bordley”), William Loper (“Loper”) and Thomas. Law enforcement recorded
the investigation in police reports (Exhibit D).2 In furtherance of the investigation
Detective Jeremiah Lloyd engaged in four separate hand-to-hand transactions of
illicit drugs, primarily crack cocaine, with Thomas. As a result of these drug deals,
law enforcement obtained Thomas ’ phone number and obtained a court ordered Pen
Register on his cellular telephone line. As the investigation into the drug trafficking
ring continued, including five additional drug transactions between Thomas and
Detective Lloyd, law enforcement sought and received a wire intercept, or wiretap
order for Thomas’ cellular telephone line from the Superior Court. The order
permitted the interception of all communication to and from Thomas’ cell phone
beginning on May 7, 2010. Intercepted communications from this phone line and
additional information gathered through police surveillance led to additional wire

orders on the phones of Bordley and Loper, among others.

 

2 State v. Ihomas, Del. Super., ID No. 1009005841, DI 73.

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State v. Thomas
ID No. 1009005841
March 28, 2018

During the pendency of the wiretap, law enforcement officers monitored the
intercepted calls and conducted surveillance to corroborate information from the
calls, when practicable. On May 7, 2010, officers intercepted calls from Thomas
indicative of extortion. Thomas took a 1996 Pontiac Transport van from a drug
client because of an unpaid debt. Additional calls showed Thomas storing the
vehicle, directing its use and planning for its disposal. Two days later on May 9,
2010, calls indicated that Thomas, who was a person prohibited from buying or
possession firearms or ammunition, was directing one of his drug buyers to
purchase ammunition for him.

On May 12, 2010, intercepted calls showed Thomas delivering either crack
cocaine or marijuana to other individuals including Karen Sebastian, Kyle Scott and
David Vilone. Later in the month, calls indicated that Thomas was in possession of
a firearm.

Coinciding with the monitoring of Thomas’ phone, law enforcement officers
intercepted calls between Bordley, Lope and Nathaniel Evans (“Evans”). These
calls showed that two kilograms of cocaine were delivered by Juan Carlos Benitez
to Bordley and Evans. Conversations from Bordley’s phone line showed the
distribution network for the cocaine leading law enforcement to conclude that
Thomas was part of this network. After Bordley obtained his kilogram of cocaine,
call intercepts and surveillance indicated that Thomas obtained approximately 3
ounces of cocaine from him.

On May 21, 2010, two days after the kilogram deal, Detective Lloyd

purchased 3.5 grams of crack cocaine and an amount of marijuana from Thomas.

State v. Thomas
ID No. 1009005841
March 28, 2018

Later that day, intercepted calls showed Thomas concerned about a handgun hidden
in his car. Law enforcement executed a stop on this car and the gun was seized. In
the days following, intercepted calls and surveillance showed Thomas purchasing
drugs from Bordley and then selling them.

On one occasion intercepted calls indicated that Thomas sold cocaine to
Renell Carter (“Carter”). After the sale Thomas discussed the cash he saw in
Carter’s possession and discussed a plan to rob her at gunpoint. Thomas, realizing
that Carter would recognize him, arranged for Rakeem Peace (“Peace”) to commit
the actual crime by directing him on how to commit the robbery and providing him
with a firearm. Calls between Thomas, Peace and Carter indicate that the robbery
occurred but was not financially fruitful. Following the robbery, Thomas can be
heard arranging for the storage and retrieval of the gun and arranging more drug
deals.

On June 13, 2010, Thomas arranged for Frederick James (“James”) to be
lured to an area where it would be convenient for Thomas to shoot at him (Exhibit
E).3 Intercepted calls showed Thomas arranging to pick up his gun, ordering
someone to wipe fingerprints off of the ammunition and directing others to get
J ames into position. Later in the investigation J ames informed police that he was
shot at by Thomas due to ongoing issues between the two. Police also seized shell
casings in the area where the shooting occurred.

Delaware State Police executed arrest warrants related to this investigation

 

3 State v. Thomas, Del. Super., ID No. 1009005841, DI 73.

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State v. Thomas
ID No. 1009005841
March 28, 2018

on June 15, 2010, That afternoon the police learned that Thomas was going to the
residence at 139 Barney Jenkins Road in Felton, a location where Thomas was
known to store a firearm (Exhibit F).4 The police arrived while Thomas was still
in his vehicle outside of the residence. As the police entered the driveway, Thomas
rammed his vehicle into the driver’s side of the police vehicle. The impact occurred
as Trooper Ballenger was attempting to exit, trapping his leg in the door. After
hitting the police vehicle, Thomas reversed his vehicle and then proceeded forward
again. This time Thomas struck a second police vehicle head on. The police shot
at the vehicle, which reversed at a high rate of speed and the vehicle finally came
to rest after it hit a shed.
THOMAS’ CONTENTIONS

Thomas’ Motion for Postconviction Relief filed by Appointed Counsel

pursuant to Superior Court Rule 61 raises the following grounds for relief:

Ground one: Trial Counsel was ineffective for
arranging a meeting with the
prosecutor prior to the plea.

Ground two: Trial counsel was ineffective for
recommending an “open sentencing”
and presentence investigation.

DISCUSSION

Under Delaware law, this Court must first determine whether Thomas has met

the procedural requirements of Superior Court Criminal Rule 6l(i) before it may

 

4 State v. Thomas, Del. Super., ID No. 1009005841, DI 73.

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State v. Thomas
ID No. 1009005841
March 28, 2018

consider the merits of his postconviction relief claim.5 This is Thomas’ first motion
for postconviction relief, and it was initiated with his request for appointment of
counsel within one year of his conviction becoming final. Therefore, the
requirements of Rule 6l(i)(l) - requiring filing within one year and (2) - requiring
that all grounds for relief be presented in initial Rule 61 motion, are met. None of
Thomas’ claims were specifically6 raised at the plea, sentencing, or on direct appeal.
Therefore, they are barred by Rule 6l(i)(3), absent a demonstration of cause for the
default and prejudice. Both of Thomas’ claims are based on ineffective assistance
of counsel ; therefore, he has alleged cause for his failure to have raised them earlier.

At this point, Rule 61 (i)(3) does not bar relief as to Thomas’ grounds for relief,
provided he demonstrates that his counsel was ineffective and that he was prejudiced
by counsel’s actions. To prevail on his claim of ineffective assistance of counsel,
Thomas must meet the two-prong test of Strickland v. Washington.7 In the context
of a guilty plea challenge, Strickland requires a defendant show: (1) that counsel’s
representation fell below an objective standard of reasonableness; and (2) that
counsel’s actions were prejudicial to him in that there is a reasonable probability that,

but for counsel’s error, he would not have pled guilty and would have insisted on

 

5 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

6 On direct appeal Thomas argued his Trial Counsel was ineffective but the Delaware
Supreme Court did not review those claims.

7 466 U.S. 668 (1984).

State v. Thomas
ID No. 1009005841
March 28, 2018

going to trial and that the result of a trial would have been his acquittal.8 The failure
to establish that a defendant would not have pled guilty and would have proceeded
to trial is sufficient cause for denial of relief.9 In addition, Delaware courts have
consistently held that in setting forth a claim of ineffective assistance of counsel, a
defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.10 When examining the representation of counsel pursuant
to the first prong of the Strickland test, there is a strong presumption that counsel’s
conduct was professionally reasonable.ll This standard is highly demanding12
Strickland mandates that, when viewing counsel’s representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”13

Following a complete review of the record in this matter, it is abundantly clear
that Thomas has failed to allege any facts sufficient to substantiate his claim that his
attorney was ineffective I find Trial Counsel’s affidavit in conjunction with the

record, more credible that Thomas’ claims that his counsel’s representation was

 

8 Id. at 687.

9 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. 1988))(citations omitted).

10 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State,
1995 WL 466465 at *1 (Del. Supr.)).

11 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

12 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
U.S. 365, 383 (1986)).

13 Strickland, 466 U.S. at 689.

State v. Thomas
ID No. 1009005841
March 28, 2018

ineffective Thomas’ counsel clearly denies the allegations Furthermore, nowhere
in his motion does Thomas claim to be innocent, he merely argues that counsel’s
actions forced him to take a plea. Thomas claims to have been essentially a victim
of pressure to plea. Thomas’ arguments are directly and specifically denied by his
Trial Counsel who completely contradicts Thomas’ self serving version of events.
Thomas claims he was unaware that Gary Marshall was employed by his attorney
when in fact Thomas had met with Mr. Marshall multiple times prior to his plea.
Thomas is clearly disingenuous at best and completely lying at worst. Furthermore
according to Thomas’ Trial Counsel it was Thomas who requested a presentence
investigation as opposed to accepting the plea offer to 24 years offered by the State.
l find Trial Counsel far more credible than Thomas. Clearly had he gone to trial the
likelihood of conviction was very high and he faced life incarceration

As noted, Thomas was facing the possibility of life incarceration had he been
convicted, and the sentence and plea were extremely reasonable under all the
circumstances, especially in light of the overwhelming evidence against him. Prior
to the entry of the plea, Thomas and his attorney discussed the case It was Thomas’
obstinance in refusing the State’s plea offer and demanding a presentence
investigation that led to a longer sentence Thomas has no one to blame but himself.
Even with the longer sentence the plea bargain was clearly advantageous to Thomas
in that he avoided a much longer sentence had he been convicted at trial. Counsel’s
representation was certainly well within the range required by Strickland.
Additionally, when Thomas entered his guilty plea, he stated he was satisfied with

defense counsel’ s performance He is bound by his statement unless he presents clear

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State v. Thomas
ID No. 1009005841
March 28, 2018

and convincing evidence to the contrary.14 Consequently, Thomas has failed to
establish that his counsel’s representation was ineffective under the Strickland test,
Additionally Thomas acknowledged his guilt several times.

Even assuming, arguendo, that counsel’s representation of Thomas was
somehow deficient, Thomas must satisfy the second prong of the Strickland test,
prejudice In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.15 In an attempt to show prejudice, Thomas simply asserts that his counsel
was ineffective and speculates that he “may” have been given a more favorable plea,
lnstead he was given a better plea and he himself chose not to accept it and risk a
presentence investigation His statements are insufficient to establish prejudice,
particularly in light of the overwhelming evidence against him, Therefore, l find
Thomas’ grounds for relief are meritless.

To the extent that Thomas alleges his plea was involuntary, the record
contradicts such an allegation When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.16 At the

guilty-plea hearing, the Court asked Thomas whether he understood the nature of the

 

14 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (Del. 1994)).

15 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
556 (Del. 1990)).

16 Godinez v. Moran, 509 U.S. 389, 400 (1993).

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State v. Thomas
ID No. 1009005841
March 28, 2018

charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Thomas if he understood he would waive his
constitutional rights if he pled guilty; if he understood each of the constitutional
rights listed on the Truth-in-Sentencing Guilty Plea Form (“Guilty Plea Form”); and
whether he gave truthful answers to all the questions on the form. The Court asked
Thomas if he had discussed the guilty plea and its consequences fully with his
attomey. The Court asked Thomas if he was entering into the plea because he was
guilty of the charges. The Court also asked Thomas if he was satisfied with this
counsel’s representation Thomas answered each of these questions affirmatively.17
l find counsel’s representations far more credible than Thomas’ self-serving, vague
allegations

Furthermore, prior to entering his guilty plea, Thomas signed a Guilty Plea
Form and Plea Agreement in his own handwriting Thomas’ signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed
in the Plea Agreement. Thomas is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.18
I confidently find that Thomas entered his guilty plea knowingly and voluntarily and

that Thomas’ grounds for relief are completely meritless.

 

17 State v. Thomas, Del. Super., ID No. 1009005841 (Jan. 26, 2012) Tr. at 6-13.

18 Sommerville, 703 A.2d at 632.

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State v. Thomas
ID No. 1009005841
March 28, 2018

CONCLUSION
I find that Thomas’ counsel represented him in a competent and effective
manner and that Thomas has failed to demonstrate any prejudice stemming from the
representation I also find that Thomas’ guilty plea was entered knowingly and
voluntarily. l recommend that the Court deny Thomas’ motion for postconviction

relief as procedurally barred and completely meritless.

/s/ An_dren M Freml
Commissioner

AMF/dsc
oc: Prothonotary

12

