Rogers v. State

• Court: Supreme Court of Delaware
• Decided: January 4, 2017
• Docket: 385, 2016
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

RONALD ROGERS, § § No. 385, 2016 Defendant Below, § Appellant, § Court Below—Superior Court of the § State of Delaware v. § § Cr. ID No. 1402002902 STATE OF DELAWARE, § § Plaintiff Below, § Appellee. §

Submitted: September 29, 2016 Decided: January 4, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.

ORDER

This 4th day of January 2017, upon consideration of the appellant’s opening

brief, the appellee’s motion to affirm, and the Superior Court record,1 it appears to

the Court that:

(1) The appellant, Ronald Rogers, filed this appeal from the Superior

Court’s denial of his first motion for postconviction relief. The State has filed a

motion to affirm on the ground that it is manifest on the face of Rogers’ opening

1 On October 24, 2016, the appellant filed a motion seek leaving to respond to the motion to affirm. Under Supreme Court Rule 25(a), a response to a motion to affirm is not permitted unless requested by the Court. In this case, the Court did not request a response to the motion to affirm and also finds no reason to request a response after considering the appellant’s motion. brief that the appeal is without merit. We agree and affirm the Superior Court’s

judgment.

(2) The record reflects that Rogers was arrested for the armed robberies

of a Walgreen’s Pharmacy and a First National Bank of Wyoming in Dover,

Delaware. During both robberies, Rogers wore a mask and displayed what

appeared to be a handgun. At Walgreen’s, Rogers put the store manager in a

headlock and the gun to her head and forced her to open a cash register. Rogers

fled with $200 in cash. At the First National Bank, Rogers poured a container of

gasoline on the carpet and ordered the six bank tellers in the area to the floor

before taking a total of $15,000 from the tellers’ stations. A grand jury indicted

Rogers for seven counts of Robbery in the First Degree, two counts of Wearing a

Disguise, and one count of Criminal Mischief.

(3) On June 25, 2014, Rogers pled guilty to three counts of first degree

robbery and one count of second degree robbery. In exchange for Rogers’ guilty

plea, the State agreed to dismiss the other charges in the indictment. At the request

and recommendation of the parties, the Superior Court immediately sentenced

Rogers to a total of thirty-six years at Level V incarceration suspended after nine

years minimum mandatory for probation.

(4) On August 11, 2014, Rogers filed a motion for postconviction relief

under Superior Court Criminal Rule 61. Rogers raised several claims all based on

2 the same underlying claim that he was illegally indicted for seven counts of first

degree robbery. According to Rogers, he could be indicted only for two counts of

first degree robbery. Also, in later submissions, Rogers claimed the indictment

was illegal because the dismissal of weapon offenses at the preliminary hearing left

the State without a basis to indict him for any charges of first degree robbery.

(5) The Superior Court referred Rogers’ postconviction motion to a

Commissioner. At the direction of the Commissioner, the State filed a response to

the motion and Rogers’ defense counsel filed an affidavit responding to allegations

of ineffective assistance of counsel. Rogers then filed responses to the affidavit

and to the State’s response.

(6) On August 19, 2015, the Commissioner issued a report recommending

that the postconviction motion should be denied. Upon de novo review, the

Superior Court issued an order on June 28, 2016, adopting the report and denying

the postconviction motion. This appeal followed.

(7) On appeal, Rogers continues to claim that he was illegally indicted

and that his defense counsel was ineffective for failing to recognize the defects in

the indictment. We disagree and conclude, consistent with the Superior Court, that

because the illegal indictment claim was without merit,2 the related ineffective

2 Under Delaware law, a defendant is properly charged for robbery in the first degree for displaying “what appears to be a deadly weapon.” 11 Del. C. § 832(a)(2). The State is not required to prove that a defendant actually possessed a deadly weapon during the commission of 3 counsel claim also must fail,3 and that both claims were waived by the entry of

Rogers’ voluntary guilty plea.4

NOW, THEREFORE, IT IS ORDERED that motion to affirm is

GRANTED. The judgment of the Superior Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice

the crime. Jones v. State, 2011 WL 1900443, at *2 (Del. May 16, 2011) (quoting State v. Smallwood, 346 A.2d 164, 166-67 (Del. 1975)). Also, a defendant may be properly charged for multiple robbery counts during a single incident when there are multiple victims. Lewis v. State, 2007 WL 4372815, at *2 (Del. Dec. 14, 2007) (citing Harrigan v. State, 447 A.2d 1191, 1192 (Del. 1982)). 3 Garvey v. State, 2007 WL 1221136 (Del. April 26, 2007) (citing Skinner v. State, 607 A.2d 1170, 1173 (Del. 1992) (holding that rejection of the underlying substantive issue precluded a showing of prejudice on a related claim of ineffective assistance of counsel)). 4 Johnson v. State, 2008 WL 4830853 (Del. Nov. 7, 2008) (citing Miller v. State, 849 A.2d 1229, 1232 (Del. 2003)). In particular, the Court notes that during the guilty plea colloquy Rogers told the Superior Court that he understood the charges of first degree robbery and second degree robbery and was aware of the evidence in support of the charges, that he was guilty of three counts of first degree robbery and one count of second degree robbery, and that he was satisfied with his defense counsel's representation. Hr’g Tr. at 6-7, 9 (June 25. 2014). 4