IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
ID No. 1502002252
Vv.

QUENTIN JONES,

Petitioner/Defendant.

Submitted: November 8, 2019
Decided: December 11, 2019

Upon Defendant’s Motion for Postconviction Relief

GRANTED

MEMORANDUM OPINION

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A., 3200 Concord
Pike, Wilmington, DE 19803; Attorney for Defendant.

Kathryn J. Garrison, Esquire, Department of Justice, 114 East Market Street,
Georgetown, DE 19947; Attorney for the State

KARSNITZ, J.
“*...we must never forget that the highest appreciation
is not to utter words, but to live by them.”

John F. Kennedy

President Kennedy wrote what I have quoted for a speech to be given
at Thanksgiving in 1963. He never delivered the speech. In my far less articulate
words, one should judge people for what they do and not what they say.

This is a Superior Court Criminal Rule 61 (“Rule 61") application for
postconviction relief. The petitioner, Quentin Jones, (“Q. Jones’”)' was convicted
of serious crimes, including two counts of rape in the first degree involving a child
less than 12 years old. Trial was held in February, 2016 and Dwayne Jones (“D.
Jones”), a prison informant, was an important witness presented by the State of
Delaware (“the State”). Q. Jones was sentenced to life in prison in April of 2016.

At the time of Q. Jones’ trial, D. Jones was in prison serving a three
year sentence pursuant to 11 De/. C. §4204K (“K time”) after pleading guilty in
the summer of 2015 to three charges, which included two Class A misdemeanors
and one Class F felony. D. Jones apparently was surprised by the amount of Level

5 time to which he was sentenced, as well as the “K time” requirement. Shortly

 

' This case involves at least three people with the surname Jones. I will identify them
using their first initial to prevent confusion. Detective Jones I will identify as such. I mean no
familiarity or disrespect.
after being sentenced, D. Jones began a persistent campaign to have his Level 5
time reduced. His efforts proved fruitless until he decided to provide testimony
which helped convict Q. Jones. Within six months of Q. Jones’ sentencing, D.
Jones had his sentence substantially modified in his favor.

At Q. Jones’ trial, D. Jones was questioned if he had an agreement
with the State to receive any benefit for his testimony. He denied any agreement.

The parties have conceded that, if D. Jones had an agreement with the
State, it would constitute Brady material and would have to be disclosed to Q.
Jones and his defense team. The obvious reason is that an agreement between the
State and D. Jones in exchange for his testimony would be grounds to impeach D.
Jones. To put it simply, the defense for Q. Jones could assert that D. Jones’
testimony was the result of the promises made to him, and not the truth.

Rule 61 proceedings always are serious and important. They are
defendant’s last chance. The road to success in a Rule 61 proceeding is difficult,
as it should be. Jury verdicts are sacrosanct and are disturbed only for the most
substantial and serious reason. But where the trial lacks fundamental fairness, and
where the basic rights and rules are not followed, a jury verdict cannot stand. In

my opinion, this is one of those cases.
As much as the State argues otherwise, I find that the State had an
understanding with D. Jones that it would give its approval to D. Jones’ effort to
reduce his sentence in exchange for his testimony. Under the most basic
requirements of Brady, that had to be disclosed to Q. Jones’ defense team.
Because it was not disclosed, Q. Jones’ trial was fundamentally unfair, and I am
granting his motion.

My action here is with reluctance, and I recognize the consequences
to all, including the witness, and especially, the victim. Our process must be fair
and meet established standards, which cannot be compromised to allow the State
the benefit of an unsullied witness, while at the same time giving D. Jones the
benefit of an unstated or implied bargain.

Q. JONES’ INITIAL RULE 61 PETITION

The State concedes that Q. Jones’ petition was timely filed under
Rule 61. Q. Jones, representing himself, filed the initial Rule 61 petition. Q.
Jones raised six grounds in support of his claim for Rule 61 relief, which alleged
deficiencies in trial counsel’s performance. I give little attention to each of those

grounds as none meet the Strickland’ standard. Strickland, and its Delaware

 

*Strickland v. Washington, 466 U.S. 668 (1984).

4
counterpart, Albury v. State,’ require counsel’s performance to fall below an
objective standard of reasonableness, and the moving party also must show there
is a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. I have examined the record and the
arguments of Q. Jones and counsel and find that neither prong of Strickland has
been met. I reject all of the claims contained in the initial, pro se petition related
to counsel’s performance.

Additionally, Q. Jones made four claims related to the State’s conduct
in his trial. In his pro se Motion for Postconviction Relief, Jones claims: (1) the
prosecution violated his Fifth and Sixth Amendment rights and 11 Del. C. §3507
by asking the victim leading questions without laying the proper foundation; (2)
the trial judge erred in failing to voir dire juror 12, who had taken part in a Zumba
class with the State’s liaison; (3) he was prejudiced by Detective Jeremy Jones’
testimony that he investigates crimes and “rapes such as this;” and (4) the trial
Judge failed to instruct the jury that informants are not presumed to be credible
witnesses.

The State raises the procedural bars provided in Rule 61(1)(3) and (4)

in response to these claims. All of the claims raised in this portion of Q. Jones’

 

°551 A.2d 53 (Del. 1988).
petition were claims either raised at trial and rejected, or waived. I agree with the
State’s position that the four claims listed are barred by Rule 61(i)(3) and 61(i)(4).
THE AMENDED RULE 61 PETITION
After Q. Jones filed his petition, counsel was appointed to review and
supplement it. Counsel filed an Amended Motion for Postconviction Relief which
raised one issue. In the amended motion, Q. Jones asserted his constitutional
rights were violated because the State committed a Brady" violation by failing to
disclose what he called a “tacit agreement” between the State and D. Jones in
exchange for his testimony.
The State also raises the provisions of Rule 61(i)(3) as a bar to this
claim. Rule 61(i)(3) reads in full:
(3) Procedural default. Any ground for relief that
was not asserted in the proceedings leading to the
judgment of conviction, as required by the rules
of this Court, is thereafter barred, unless the movant
shows
(A) Cause for relief from the procedural
default and
(B) Prejudice from violation of the movant’s
rights.

To me, the State’s reasoning is both circular and disconcerting. At trial, the State

represented to the Court, and D. Jones testified, there was no agreement with the

 

“Brady v. Maryland, 373 U.S. 83 (1963).

6
State. As a result, Q. Jones was foreclosed from making an argument of bias on
the part of D. Jones to the jury. After the trial, the State now admits that D. Jones
received the benefit of the bargain. However, according to the State, Q. Jones did
not assert the bias issue “...in the proceedings leading to the judgment of
conviction...” based upon facts which occurred after his trial. How one could
assert a position in a trial leading to a conviction based upon events that occur
thereafter is recondite. In any event, I do not find the bar of Rule 61(i)(3)
applicable here. Even if it were, I also would find that under the facts of this case
there is both cause for relief from the procedural default and substantial and
overwhelming prejudice to Q. Jones from the violation of his rights. The facts as
developed, and which arose after trial, prove the agreement between D. Jones and
the State. The prejudice is the presentation by the State of important corroborating
testimony with no ability by the defense to show it was bought and paid for.

D. JONES’ SUCCESSFUL
EFFORT TO REDUCE HIS SENTENCE

I pause here to tell the saga of D. Jones’ effort to obtain a reduced
sentence. These facts show to me the reason for the result D. Jones eventually
achieved and why what happened shows, as Q. Jones describes it, a “tacit

agreement” between D. Jones and the State. The facts also show the persistence
and admirable zealous advocacy of D. Jones’ attorney, Stephen W. Welsh,
Esquire.

As I wrote earlier in this opinion, D. Jones was convicted of two
misdemeanors and a Class F felony. Mr. Welsh testified at the hearing I held on
Q. Jones’ motion on November 8, 2019. His testimony was sincere and credible.
He told me that D. Jones was unpleasantly surprised by his sentence, which
included three years Level 5 “K time”. Like many criminal defendants, D. Jones
had family and obligations that he wanted to attend to as soon as he could. It is
impossible for me to make a judgment whether D. Jones’ sentencing expectations
were reasonable but I have no doubt his expectations were diminished. D. Jones’
conduct following his sentencing and Mr. Welsh’s testimony demonstrates that to
me.

D. Jones pled guilty to Assault in the Third Degree, Terroristic
Threatening and Aggravated Menacing on March 6, 2015. A presentence
investigation was ordered, and he was sentenced on April 24, 2015. He filed a pro
se motion for modification of his sentence pursuant to Superior Court Criminal
Rule 35 on July 13, 2015, and his counsel, Mr. Welsh, filed a similar motion on
July 21, 2015. The Superior Court denied both motions by letter order dated July

23, 2015, two days after the motion was filed by Mr. Welsh. I am not in any way
being critical of the Court’s July 23, 2015 order when IJ observe that it gave short
shrift to D. Jones request.’ D. Jones appealed the denial to the Delaware Supreme
Court, which affirmed the denial on February 11, 2016. Coincidentally, the
affirmance occurred during the Q. Jones trial.

D. Jones tried again and filed a Rule 35 Motion for Modification on
November 12, 2015. The Superior Court promptly denied this motion as his
appeal from the initial denials was pending before the Supreme Court.

Q. Jones was tried and convicted the second week of February, 2016.
D. Jones was a reluctant witness at Q. Jones’ trial. He met with the State
prosecutor, Graham Robinson, Esquire during the trial and, according to Mr.
Robinson, attempted to negotiate an agreement for a lesser sentence in exchange
for his testimony. Mr. Robinson testified at D. Jones’ Rule 61 hearing, and told
me he refused to agree to D. Jones’ demands because he thought it would impair
D. Jones’ credibility as a witness. Mr. Robinson told D. Jones he should testify
because it was the right thing to do. At Q. Jones’ trial, D. Jones testified about Q.
Jones “jailhouse confession”. Mr. Robinson testified that D. Jones’ testimony was

crucial to securing the conviction of Q. Jones. Mr. Robinson also supplied

 

Rule 35 has a 90-day limitation period, and D. Jones’ first motion was within that time.
Any motion outside the 90 days can only be granted upon a showing of extraordinary
circumstances. See State v. Culp, 152 A.3d 141 (Del. 2016).
contemporaneous notes of his conversations with D. Jones and the impact of his
testimony on the Q. Jones trial.

Both Mr. Welsh and Mr. Robinson testified that after the Q. Jones
trial Mr. Welsh approached Mr. Robinson to seek his help in modifying D. Jones’
sentence. Both counsel also told me that Mr. Robinson said any such
considerations would have to wait until Q. Jones was sentenced. I find this
curious, because it supports the contention that the State did not want any
appearance that it had an agreement with D. Jones until after a time when Q. Jones
may have had an ability to question the relationship between the State and D.
Jones. Q. Jones was sentenced on April 16, 2016.

On May 19, 2016 D. Jones filed his fourth Rule 35 motion to modify
his sentence. In the May 19 motion, D. Jones added a claim that he had provided
testimony in the Q. Jones case as a basis to give him relief. D. Jones’ motion was
denied in a short pro forma letter on June 7, 2016. D. Jones’ case then took an
interesting turn that ultimately would prove fruitful to him.

On June 7, 2016, D. Jones, through Mr. Welsh, filed his fifth Rule 35
motion for modification of his sentence. One should keep in mind that a Rule 35
motion beyond the 90-day time limit must be supported by extraordinary

circumstances. Our Supreme Court has unequivocally determined that good

10
conduct in prison does not constitute extraordinary circumstance.° One could
argue that Culp’s good conduct by participating in prison educational and
rehabilative programs is different than D. Jones’ conduct in helping to convict a
defendant charged with pedophila. I do not accept that premise. I am in accord
with the reviewing Judge who wrote in connection with D. Jones’ last petition,
which included the ground of giving testimony against Q. Jones, that the testimony
would not constitute extraordinary circumstances.

In any event, D. Jones’ fifth Rule 35 motion, which did recite his
testimony as a ground, resulted in different action than his previous four. The
Superior Court responded with a letter which recited that the motion was “deja vu
all over again”, and also recited the repetitive nature of the motion, the prior
appeal of a similar motion which resulted in an affirmance of the denial, and the
lack of extraordinary circumstances. The Court concluded by saying that unless
the State joined in the motion, it would be denied effective June 17, 2016.

The record reflects no action thereafter until September 27, 2016. On
that day a different deputy attorney general, Rebecca Anderson, Esquire, wrote to
the Court and stated that D. Jones had given assistance in the Q. Jones case, but

Ms. Anderson made no recommendation concerning modification of D. Jones

 

*State v. Culp, supra.

11
sentence. Graham Robinson testified that he left his position as deputy attorney
general in May, 2016 and Ms. Anderson took over his case load.

Mr. Robinson also testified that in April and May of 2016, and at the
urging of Mr. Welsh, he looked at D. Jones’ case and criminal history. He also
spoke to the person who prosecuted the D. Jones case. Mr. Robinson was
concerned by what he learned, specifically about the seriousness of D. Jones’
crimes, and the extent of his criminal history. Robinson’s concerns tempered his
view and enthusiasm for supporting D. Jones’ application. I find it likely the same
concerns produced the equivocal letter from Ms. Anderson.

Ms. Anderson’s letter in the Court file contained several handwritten
notes of the sentencing Judge. One of the notes read: “So what exactly is the
State’s position as to what the defendant is seeking?” Court staff electronically
forwarded to Ms. Anderson a copy of the handwritten note. She responded to the
Court stating the State did not oppose modification, but had no specific
recommendation.

A hearing was held on D. Jones’ Rule 35 motion to modify his
sentence on October 7, 2016. Mr. Welsh described a sidebar conference (which
was not transcribed) during which the Court expressed frustration and ire with

both defense and State’s counsel for not having a firm agreement as to what they

12
were asking the Court to do. After the sidebar conference, the Court granted D.
Jones’ motion, and subsequently entered an order which sentenced him to one year
Level 5 pursuant to §4204K (which at that time had already been served), 1 year
Level 5, with no “K time” or probation thereafter, and 5 years Level 5, with no “K
time”, suspended for 4 months Level 4, work release, followed by 3 years Level 3
probation. In short, the order allowed D. Jones to earn” good time” credits on his
second year Level 5 sentence, eliminated the third year of Level 5 time for 4
months Level 4 work release, and reduced his Level 3 probationary period from 4
years to 3 years.

At the November 8, 2019 hearing on Q. Jones’ Rule 61 motion, I
asked Mr. Robinson about the result for D. Jones. I used a common Latin phrase
that seems to be overused these days, guid pro quo. I asked Mr. Robinson if D.
Jones had received the quo for his quid. He candidly told me D. Jones had
received his quo.

Where do these facts take us? In my opinion, the State did have an
agreement to help D. Jones in his desperate effort to seek a reduction of his

sentence. J am mindful that the State was careful not to state the agreement in

13
express terms. But D. Jones and his counsel expected help and they got it.° The
State violated the dictates of Brady v. Maryland" in plain view. To me the State
had only two choices. Either the State made an agreement with D. Jones,
disclosed it, and accepted the consequences, or the State made no agreement and
opposed any modification of sentence. In the latter option, I have no doubt at all
that D. Jones would have served his full sentence.

I find based upon all the evidence that the State had an agreement
with D. Jones to help him in his effort to reduce his sentence in exchange for his
testimony. I do so for the following reasons:

(1) The timing and the sequence of events, including the repeated
failures of D. Jones efforts for reduction before his testimony, coupled with his
success after it;

(2) The approach to Mr. Robinson by Mr. Welsh that he rejected prior
to Q. Jones’ sentencing, and the specific references by Mr. Robinson to waiting

until Q. Jones was sentenced;

 

*T add this footnote here to express my respect and admiration for the efforts of Mr.
Welsh. He did not have to follow D. Jones’ case through the hoops and hurdles as it progressed.
He could have done nothing and let D. Jones progress down the path he followed. Instead, Mr.
Welsh provided advice and service throughout what many would have thought was a task of
Sisyphus. I admire Mr. Welsh’s conduct as an example to us all as to what zealous
representation means.

7373 U.S. 83 (1963).

14
(3) The waffling by the State in D. Jones last and successful effort,
and ultimate concession by the State to the reduction at D. Jones’ hearing on his
motion;

(4) Mr. Welsh’s persistence in enforcing the “tacit agreement”; and

(5) the State’s actions following the testimony, which more than

anything else prove an agreement existed before D. Jones testified in Q. Jones’
case.

To ignore all of the above and accept the spoken words of “no
agreement” would require that I accept fiction.

J am mindful of two similar cases from this Court. In State v. Andrus®
defendant made a claim similar to Q. Jones’. Andrus also claimed a “tacit
agreement” between the State and the prison informant who helped convict him.
In Andrus, the Trial Court, after an extensive review of the case history and
evidence determined no agreement of any kind existed, and that even if an
agreement existed, its disclosure would not have had a substantial impact on

Andrus’ trial. As to the first point, I am of the opinion that the facts here proved

an agreement. As to the latter point, Mr. Robinson testified that D. Jones’

 

’State v. Andrus, 2003 WL 1387115 (Del. Super. Mar. 12, 2003), aff'd, 844 A.2d 991
(Del. 2004) (TABLE).

15
testimony had a substantial impact on Q. Jones’ trial. The State also conceded this
point in its argument. In State v. Burton’ the Trial Court also concluded that no
representations had been made to defense counsel in exchange for a witness’
testimony. The witness was the victim of Burton’s crimes. In an extended
discussion the Court in Burton amply supported the reasons for its conclusions.

I have no doubt Mr. Robinson’s motives were pure, but his method
was flawed. I also have no doubt, and specifically find, that a tacit understanding
existed between the State and D. Jones that he would get a substantial benefit for
his efforts. Merely saying there was no agreement is not a talisman which
innoculates against Brady violations. D. Jones’ cooperation was bought and, over
time, paid for.

In my view, the practice I describe in this opinion has no place in my
view in our administration of justice. I do not suggest a proverbial “wink and
nod” occurred, but its functional equivalent did.

The State conceded at oral argument that if it had an agreement with
D. Jones, it had to be disclosed as Brady material. The State also conceded that D.
Jones’ testimony was significant in the case against Q. Jones and a substantial

reason for his conviction. Because I believe the evidence proved that an

 

°2015 WL 6735833 (Del. Super. 2015), aff'd, 146 A.3d 64 (Del. 2016) (TABLE).

16
agreement between the State and D. Jones existed in which the State would
materially aid D. Jones in modifying his sentence, a Brady violation occurred:

Under Brady..., the State’s failure to

disclose exculpatory and impeachment

evidence material to the case violates a

defendant’s due process rights. '°
The United States Supreme Court has written:

Society wins not only when the guilty

are convicted but when criminal trials

are fair; our system of the administration

of justice suffers when any accused is

treated unfairly."

Wright v. State’” and Michael y. State’? provide examples in which the

Delaware Supreme Court found Brady violations. Wright includes the allegation
that a prosecution witness was a prison informant who received an undisclosed
benefit. The State failed to disclose that shortly before Wright’s trial the witness
had cooperated with the State in exchange for the State’s help in reaching a “better

deal’ for himself.

Michael involved a Brady violation because the prosecution failed to

 

Starling v. State, 130 A.3d 316, 332 (Del. 2015).
"Brady v. Maryland, 373 U.S. 83 (1963).
91 A.3d 972 (Del. 2014).

'°529 A.2d 752 (Del. 1987).

17
inform the defense that a charge had been reduced to benefit the victim/witness.
The Court wrote in Michael that “...whenever the State reduces any pending
charges (related or not) or makes any arrangement with any State witness,
disclosure is mandatory”.'*

I harken back to the words of President Kennedy: “...the highest
appreciation is not to utter words but to live by them.” The State here uttered the
words of no agreement, but lived by providing the benefit to D. Jones.

I am granting this Rule 61 motion, vacating the conviction of Q.
Jones and ordering that a new trial be held.

I do not like the result. It upsets what was done three years ago and
eliminates a conviction of serious crimes. I do not like that the victim and her

family will again be put through the uncertainty and pain of a second trial. In my

view, however, the law and the facts of this case leave me no other choice.

Craig ee snitz

IT IS SO ORDERED.

 

Id. at 756.

18
