IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 2206012279 ) ) MARQUES D. LIVELY, ) ) Defendant. )
Submitted: January 16, 2025 Decided: April 16, 2025
COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED AND POSTCONVICTION COUNSELS’ MOTION TO WITHDRAW SHOULD BE GRANTED
Beth D. Savitz, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Kimberly A. Price, Esquire and Patrick A. Collins, Esquire, Collins Price & Warner, Attorneys for Defendant Marques D. Lively.
SALOMONE, Commissioner This 16th day of April, upon consideration of the Motion for Postconviction
Relief filed by Defendant Marques D. Lively (“Defendant” or “Lively”);1 the Motion
to Withdraw filed by postconviction counsel and the Memorandum in support
thereof;2 the Affidavit of defense counsel;3 the State’s Response to Defendant’s
Motion for Postconviction Relief;4 and the record in this matter, the following is my
Report and Recommendation.
FACTS AND PROCEDURAL HISTORY
On June 23, 2022, an officer of the Newport Police Department pulled over a
silver Mercury Grand Marquis being driven by Lively for numerous traffic offenses,
including, speeding, operating a vehicle with noncompliant aftermarket window tint,
and failing to wear a seatbelt.5 At the time of the traffic stop, Lively was
accompanied by another individual, Khalil Mu-min (“Mu-min”), who was sitting in
the right front passenger seat of the vehicle.6
Once the vehicle had pulled over, the Newport police officer initiated contact
with its occupants and requested that Lively provide his driver’s license, vehicle
1 Docket Item 27. For purposes of this Report and Recommendation, all docket item references relate to Superior Court Criminal Docket, State v. Lively, Case No. 2206012279 (hereinafter, “D.I. __”). 2 D.I. 38-40. 3 D.I. 44. 4 D.I. 49. 5 D.I. 1. 6 Id.
2 registration and proof of insurance.7 In response to the request, Lively removed his
wallet from a small camouflaged-style book bag and produced his driver’s license
and registration as well as an expired insurance card.8 He advised the officer that
his insurance had lapsed.9 During this interaction, the officer detected the odor of
marijuana emanating from the interior of the vehicle.10
The officer then briefly returned to his patrol car and requested that an
additional unit respond for assistance.11 An officer from the Delaware State Police
arrived a short time thereafter.12 Both Lively and Mu-min were removed from the
vehicle, handcuffed and secured in the patrol cars.13 At the same time, the officers
ascertained that neither individual possessed a medical marijuana card.14
The police then conducted an inventory search of the vehicle.15 The
camouflage bag was initially located on the right rear floorboard of the car, but was
moved to the rear seat of the car by one of the officers prior to being searched.16
Upon reviewing the contents of the bag, the Newport police officer discovered
Lively’s wallet and a completely concealed Glock semi-automatic handgun in a
7 Id. 8 Id. 9 Id. Mu-min also produced his Delaware identification card. 10 Id. 11 Id. 12 Id. 13 Id. 14 Id. 15 Id. 16 Id.
3 black plastic holster with a live round of ammunition in the chamber and six live
rounds of ammunition in the magazine.17 In the center console area of the vehicle,
the officer also found three marijuana blunts with burnt ends, indicating they had
been smoked.18 A second Glock magazine, loaded with six live 9mm rounds, was
located in a small pocket in front of the driver’s seat.19 Both men were read their
Miranda rights on the scene.20
Lively and Mu-min were transported to the Newport Police Department for
processing.21 Lively voluntarily admitted that the handgun belonged to him and that
he had purchased it about a year ago.22 He also acknowledged having previously
fired the handgun at a shooting range.23 Lively had three prior felony convictions in
the State of Delaware, rendering him a person prohibited from possessing firearms
and ammunition.24
On August 15, 2022, a grand jury indicted Lively on the following charges:
(i) Possession of a Firearm by a Person Prohibited (“PFBPP”); (ii) Carrying a
Concealed Deadly Weapon (“CCDW”); (iii) Failure to Have Minimum Insurance;
(iv) No Proof of Insurance; (v) Operating a Vehicle with Noncompliant Window
17 Id. 18 Id. 19 Id. 20 Id. 21 Id. 22 Id. 23 Id. 24 D.I. 1, 49.
4 Tinting; (vi) Failure to Wear a Seatbelt; (vii) Unreasonable Speed and (viii)
Possession of Marijuana (a civil violation).25 Defendant’s final case review was
scheduled for March 27, 2023.26 When he failed to appear, the Court issued a capias
for his arrest.27 Defendant was extradited to Delaware from Arizona, where he had
fled, and was held in default of bail.28
On November 28, 2023, Defendant plead guilty to PFBPP and traveling at an
Unreasonable Speed.29 As part of the plea agreement, the parties agreed to
recommend the 10-year minimum mandatory Level V sentence for PFBPP and a
fine for speeding. The plea agreement also reflected that Defendant acknowledged
he was eligible to be declared an habitual offender, but the State would not seek
habitual offender status if he accepted the plea offer.30 The Court accepted the
parties joint recommendation and sentenced Lively the same day to 15 years at Level
V, suspended after the non-habitual minimum mandatory sentence of ten years at
Level 5 for the PFBPP, followed by decreasing levels of supervision, and a $50.00
fine on the speeding charge.31 Lively did not file a direct appeal from his conviction
or sentence.
25 D.I. 5, Indictment. 26 D.I. 13. Defendant had previously posted bail in the amount of $30,500.00 on July 22, 2022. D.I. 2. 27 D.I. 16. 28 D.I. 18. 29 D.I. 23, 24. See Plea Agreement. 30 Id. 31 D.I. 26, 49. See Sentence Order.
5 On December 18, 2023, Lively filed a pro se Motion for Postconviction Relief
and a Motion for Appointment of Counsel.32 Defendant was appointed
postconviction counsel on May 3, 2024.33 On August 8, 2024, after finding no
meritorious postconviction claims, postconviction counsel filed a Motion to
Withdraw and a Memorandum in support thereof.34 Lively failed to respond to
postconviction counsel’s Motion to Withdraw within the 30 days provided by
Superior Court Rule 61(e)(7).35 He did, however, send a letter to postconviction
counsel on September 17, 2024, indicating the letter was his response to the Motion
to Withdraw.36 Defense counsel filed an affidavit on November 15, 2024 responding
to the allegations of ineffective assistance of counsel.37 Thereafter, the State filed
its Response to the Motion for Postconviction Relief.38 The deadline for Defendant
to file a reply was January 16, 2025, if he desired to do so. Defendant elected not to
file a reply. The matter is now ripe for decision.
DEFENDENT’S CLAIMS FOR POSTCONVICTION RELIEF
In his pro se Motion for Postconviction relief, Lively raises multiple issues
that can be fairly categorized into three general claims. First, he asserts that he did
32 D.I. 27, 28. 33 D.I. 32. 34 D.I. 39, 40. 35 D.I. 41. See Super. Ct. Crim. R. 61(e)(7). 36 D.I. 42. Lively did not provide any substantive response to the Motion to Withdraw in his letter. Rather, he merely thanked counsel for their efforts on his behalf. Id. 37 D.I. 44. 38 D.I. 49.
6 not give the police permission to search his vehicle or book bag nor did the police
have a valid search warrant for the vehicle.39 Second, he alleges that the traffic stop
was illegal.40 And, finally, he claims that he was coerced into signing the plea
agreement because of the threat of being declared a habitual offender if he rejected
the plea offer.41 For the reasons discussed below, each of these claims are without
merit.
APPLICABLE LAW GOVERNING POSTCONVICTION RELIEF
Rule 61 and Procedural Bars to Relief
Superior Court Criminal Rule 61 (“Rule 61”) governs the procedures by
which an incarcerated individual may seek to have his conviction set aside on the
ground that the court lacked jurisdiction or any other ground that is a sufficient
factual and legal basis for a collateral attack upon the conviction.42 That is, it is a
means by which the court may correct Constitutional infirmities in a conviction or
39 D.I. 27. 40 Id. 41 Id. While Lively does not directly assert ineffective assistance of counsel in connection with his claims of an improper search and seizure and traffic stop, the Court is of the view that a fair reading of his pro se Motion for Postconviction is that Lively is asserting that defense counsel was ineffective for failing to file a motion to suppress in connection with the foregoing. Similarly, he appears to be claiming that his defense counsel coerced him into accepting the plea offer by stating that it was the typical practice of the deputy attorney general to seek habitual offender status when a plea offer is rejected. 42 Super. Ct. Crim. R. 61(a)(1).
7 sentence.43 “Rule 61 is intended to correct errors in the trial process, not allow
defendants unlimited opportunities to relitigate their convictions.”44
Given that intent, before considering the merits of any claims for
postconviction relief, the Court must first determine whether there are any
procedural bars to the postconviction motion.45 Rule 61(i) establishes four
procedural bars to postconviction relief.46 Rule 61(i)(1) prohibits the Court from
considering a motion for postconviction relief unless it is filed within one year after
the judgment of conviction is final.47 Rule 61(i)(2) bars successive motions for
postconviction relief unless certain conditions are met.48
Rule 61(i)(3) provides that “any ground for relief not asserted in the
proceedings leading to the judgment of conviction” is barred, unless the movant
shows (a) cause for relief from the procedural default, and (b) prejudice from
violation of the movant’s rights.49 Rule 61(i)(4) provides that “any ground for relief
that was formerly adjudicated, whether in the proceedings leading to the judgment
43 Harris v. State, 410 A.2d 500 (Del. 1970). 44 Ploof v. State, 75 A.3d 811, 820 (Del. 2013). 45 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 46 Super. Ct. Crim. R. 61(i)(1)-(4). 47 Super. Ct. Crim. R. 61(i)(1). 48 Rule 61(i)(2) bars successive or subsequent motions for postconviction relief unless the movant is able to “pled with particularity” that (i) “new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted” or (ii) “a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant’s case and renders the conviction or death sentence invalid.” Super. Ct. Crim. R. 61(d)(2). 49 Super. Ct. Crim. R. 61(i)(3).
8 of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas
corpus proceeding, is thereafter barred.”50 However, ineffective assistance of
counsel claims cannot be raised at any earlier stage in the proceedings and are
properly presented in a motion for postconviction relief.51 Lastly, the
aforementioned bars to relief do not apply either to a claim that the court lacked
jurisdiction or to a claim that satisfies the pleading requirements of Rule 61(d)(2)(i)-
(ii).52
This is Defendant’s first Motion for Postconviction Relief and it was timely
filed on December 18, 2023, before his conviction even became final.53 As such, his
Motion is not procedurally barred by Rule 61(i)(1) or (2). Nor are his claims
procedurally defaulted under Rule 61(i)(3) or Rule 61(i)(4) since his ineffective
assistance of counsel claims could not be raised at any earlier stage in the
proceedings.54
50 Super. Ct. Crim. R. 61(i)(4). 51 Sabb v. State, 2021 WL 2229631, at *1 (Del. May 28, 2021); Green v. State, 238 A.3d 160, 187- 188 (Del. 2020); Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan- Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016). 52 Super. Ct. Crim. R. 61(i)(5). Defendant does not assert that this Court lacks jurisdiction or a claim that would satisfy Rule 61(d)(2)(i) or (ii). 53 D.I. 26, 27. Super. Ct. Crim. R. 61(m)(1) provides that if a defendant does not file a direct appeal, a judgment of conviction is final for purposes of Rule 61 thirty (30) days after the Court imposes sentence. As such, judgment became final in this case on December 28, 2023. 54 Whittle v. State, 2016 WL 2585904, at *3 (Del. Apr. 28, 2016); State v. Evan-Mayes, 2016 WL 4502303, at *2 (Del. Super. Aug. 25, 2016).
9 Ineffective Assistance of Counsel Claims under Strickland
To prevail on a claim of ineffective assistance of counsel, a defendant must
satisfy the two-prong test set forth in Strickland v. Washington.55 This test requires
that a defendant demonstrate that (a) his counsel’s performance was deficient and
(b) that said deficiency prejudiced him.56
To establish a deficient performance, a defendant must show by a
preponderance of the evidence that his attorney’s performance “fell below an
objective standard of reasonableness” under prevailing professional norms.57 That
is, that he was not reasonably competent.58 Judicial scrutiny under the first prong is
highly deferential. Courts must ignore the distorting effects of hindsight and proceed
with a strong presumption that counsel’s conduct was reasonable.59 To establish
prejudice, a defendant must show there exists a reasonable probability that, but for
counsel's unprofessional errors, the outcome of the proceedings would have been
different.60
When evaluating claims of ineffective assistance of counsel, there is a strong
presumption that counsel's conduct fell within a wide range of reasonable
55 Strickland v. Washington, 466 U.S. 668 (1984). 56 Id. at 687-88, 694. 57 Id. at 688. 58 Id. at 687-88, 694. 59 Id. at 689. 60 Id. at 694.
10 professional assistance and constituted sound strategy.61 Mere allegations of
ineffectiveness will not suffice; instead, a defendant must make and substantiate
concrete allegations of actual prejudice.62 In evaluating counsel's performance, the
Court must “reconstruct the circumstances of counsel's challenged conduct,” and
“evaluate the conduct from counsel's perspective at the time.”63
In the context of a guilty plea, to establish prejudice under Strickland, the
defendant must show there is a reasonable probability that, but for counsel's errors,
he would not have pleaded guilty and would have insisted on going to trial.64 A
defendant's statements during a plea colloquy are presumed to be truthful, 65 and a
defendant “is bound by all the representations...made during [the] plea colloquy”
absent clear and convincing evidence that the statements were not made knowingly,
voluntarily, and intelligently.66 Moreover, “a voluntary guilty plea waives a
defendant’s right to challenge any errors or defects before the plea, even those of
constitutional dimension.”67
61 Strickland, 466 U.S. at 689; Gattis v. State, 697 A.2d 1174, 1184 (Del. 1997). 62 Zebroski v. State, 822 A.2d 1038, 1043 (Del. 2003); Gattis, 697 A.2d at 1178-79. 63 Strickland, 466 U.S. at 689. 64 Hill v. Lockhart, 474 U.S. 52, 59 (1985). 65 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 66 Hammons v. State, 2005 WL 2414271, at *1 (Del. Sept. 28, 2005). 67 Smith v. State, 2004 WL 120530, at *1 (Del. Jan. 15, 2004). See also Somerville v. State, 703 A.2d 629, 632 (Del. 1997) (“[A] guilty plea constitutes a waiver of a trial on the charges and a waiver of the constitutional rights to which he or she would have been entitled to exercise at a trial.”); Rodriguez v. State, 2003 WL 1857547, at *1 (Del. Apr. 7, 2003) (stating that a defendant’s guilty plea “eliminates his claim relating to events that occurred before the entry of the plea[.]”).
11 For the reasons set forth below, all the claims raised in the Motion for
Postconviction Relief were waived upon the entry of Defendant’s guilty plea.
Lively’s Claims Were Waived Upon the Entry of His Guilty Plea
As previously noted, a defendant is bound by his answers on the guilty plea
form and by his testimony at the plea colloquy in the absence of clear and convincing
evidence to the contrary.68 In the subject action, the Plea Agreement, plea colloquy,
and Truth-in-Sentencing Guilty Plea Form indicate that Lively knowingly,
voluntarily, and intelligently entered a guilty plea.
During the guilty plea colloquy, Defendant testified that (i) he reviewed and
signed each of the Plea Agreement, Immediate Sentencing Form, and the Truth-in-
Sentencing Guilty Plea, (ii) he discussed the contents of the foregoing documents
with his attorney and had any questions regarding those documents addressed by his
counsel, and (iii) he had not been threatened or forced to plead guilty.69 Lively
further stated that he was satisfied with his attorney’s representation and understood
the Constitutional rights he was giving up by entering the plea and admitted his guilt
to the two charges comprising the Plea Agreement.70 The Court thereafter found
Lively’s plea to be knowing, intelligent and voluntary.71
68 State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del. Super. 2008). 69 See D.I. 40, Appendix to Memorandum in Support of Motion to Withdraw at A53-A70, Sentencing Transcript, dated November 28, 2023 (hereinafter, “Sentencing Transcript at __”). 70 Sentencing Transcript at A61-A65. 71 Sentencing Transcript at A65-A66.
12 Lively has not presented any clear, contrary evidence to call into question his
testimony at the plea colloquy or answers on the Truth-in-Sentencing Guilty Plea
Form. Accordingly, his valid guilty plea waived his right to challenge any alleged
errors, deficiencies or defects occurring prior to the entry of his plea, even those of
constitutional proportions.72 Although the query could conclude at this point, the
Court will, nonetheless, address Lively’s individual claims of ineffective assistance
of counsel on a substantive basis.
Ground One: Lack of Search Warrant and/or Consent to Search Vehicle and its Contents
Defendant asserts that he did not consent to the search of his vehicle or his
book bag, nor did the police obtain a search warrant.73 The logical inference the
Court must draw from those assertions is that Defendant is of the belief that (i) the
search of the vehicle and his book bag was illegal and the evidence found as a result
of said search should have been suppressed and (ii) defense counsel, in turn, was
ineffective for failing to file a motion to suppress. Contrary to Lively’s position,
72 Smith v. State, 841 A.2d 308 (TABLE), 2004 WL 120530, at *1 (Del. Jan. 15, 2004); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Modjica v. State, 2009 WL 2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004). 73 D.I. 27. In further support of his assertion of an illegal search, Defendant contends that the police “used marijuana as probable cause to bypass my consent and search my car.” As this Court noted in State v. Brown, while “the odor of marijuana alone is insufficient to establish probable cause to arrest a vehicle’s occupant. . . marijuana may provide reasonable suspicion to extend a stop.” See State v. Brown, 287 A.3d 1222, 1232 (Del. Super. 2023).
13 however, there was no basis to file a motion to suppress the evidence as the doctrine
of “inevitable discovery” applied to his case.
The inevitable discovery doctrine is an exception to the exclusionary rule
which “provides that evidence, obtained in the course of illegal police conduct, will
not be suppressed if the prosecution can prove that the incriminating evidence
‘would have been discovered through legitimate means in the absence of official
misconduct.’”74 Here, Lively’s vehicle was not insured at the time of the police
stop.75 Because it was not insured, standard police procedure required that the
vehicle be towed from the scene and subjected to an inventory search.76 The firearm
located in the camouflage book bag would have been discovered during that
inventory search.
Defense counsel addressed this issue with Lively in a letter, dated September
20, 2023, in which he explained that “the police would eventually tow the car
because it had no insurance so it could not be driven on the road and they are
obligated to do an ‘inventory search’ and the gun firearm would have been
discovered then.”77 Given that there was no basis to file a motion to suppress,
74 Hardin v. State, 844 A.2d 982, 987 (Del. 2004) (quoting Cook v. State, 374 A.2d 264, 267-68 (Del. 1977)). 75 D.I. 1. 76 D.I. 49. 77 D.I. 40, Appendix to Memorandum in Support of Motion to Withdraw at A91-92 (hereinafter referred to as the “September 20, 2023 Letter”).
14 defense counsel’s failure to do so cannot constitute deficient performance under
Strickland.
Ground Two: Illegal Stop of the Vehicle
In his second claim, Lively asserts that the police stopped his vehicle illegally,
alleging that “the cop followed me and harassed me for blocks until he turned on
[his] lights.”78 As with his first claim, the implication of Lively’s second claim is
that (i) the traffic stop was pretextual and in violation of his right to be free from
unreasonable searches and seizures under the Fourth Amendment of the U.S.
Constitution and Article I, §6 of the Delaware Constitution, (ii) all evidence seized
as a result of the traffic stop should have been suppressed, and (iii) defense counsel
was deficient for failing to file a motion to suppress. This claim, however, is also
without merit because the traffic stop at issue was reasonable.
“A traffic stop is reasonable if it is supported by reasonable suspicion or
probable cause to believe that a traffic violation has occurred.”79 “Both the United
States Supreme Court and the Delaware Supreme Court have rejected the argument
that ‘pretextual’ stops are unreasonable seizures, so long as the objective facts
support the officer’s conclusion that reasonable suspicion existed to investigate even
78 D.I. 27. 79 State v. Rickards, 2 A.3d 147, 151 (Del. Super. 2010) (citing State v. McDannell, 2006 WL 1579818, at *2 (Del. Super.).
15 a minor traffic offense.”80 According to the affidavit of probable cause, the police
officer observed Lively speeding and driving a vehicle with aftermarket tinted
windows without a valid waiver.81 In addition, Lively was seen not wearing a
seatbelt.82 These traffic violations provided the police with reasonable suspicion and
valid bases for the traffic stop.83 Given that the traffic stop was reasonable, defense
counsel had no legal basis to file a motion to suppress. Thus, his failure to do so
cannot be considered deficient performance.
Ground Three: Coerced Plea Agreement
In his third claim for relief, Defendant argues that he was coerced by defense
counsel into signing the plea agreement because he was threatened with being
declared a habitual offender if he rejected the plea offer from the State.84
Specifically, Lively references the September 20, 2023 Letter from defense counsel
which states as follows:
Although DAG Savitz has not put it in the plea agreement, it is usually her practice to seek habitual offender sentencing if the plea offer is rejected. If this happens, you would be facing 15 years minimum/mandatory to Life on the Possession of a Fire Arm By a Person Prohibited
80 State v. Brown, 287 A.3d 1222, 1231(Del. Super. 2023) (citations omitted). 81 D.I. 1. 82 Id. 83 Juliano v. State, 254 A.3d 369, 387 (Del. 2020) (finding there is “nothing unreasonable in a motor vehicle stop based on a police officer’s reasonable suspicion that the operator or occupant of the vehicle has committed or is committing a violation of the law, which includes our traffic laws.”). 84 D.I. 27.
16 charge, 8 to life on Carrying a Concealed Deadly Weapon.85
While not specifically cited by Defendant in his Motion for Postconviction
Relief, defense counsel also wrote another letter to Lively, dated October 28, 2022,
regarding his habitual offender status.86 In that letter, defense counsel similarly
explained that the prosecutor believed that Lively was habitual offender eligible and
faced a minimum mandatory sentence of 15 years to life on the charge of PFBBP
and 8 years to life on the charge of CCDW due to his prior violent felonies.87
Lively’s contention that defense counsel coerced him into taking the plea
based on the statements set forth in the foregoing letters is unavailing. The
statements by defense counsel regarding (i) the likelihood of the State seeking
habitual offender status if he did not accept the plea offer and proceeded to trial and
(ii) the minimum mandatory time he was facing if convicted and declared a habitual
offender merely reflected Defendant’s circumstances.88 Accordingly, such
85 The September 20, 2023 Letter from defense counsel was attached as an exhibit to Lively’s pro se Motion for Postconviction Relief. 86 D.I. 40, Appendix to Memorandum in Support of Motion to Withdraw at A90. 87 Id. 88 Postconviction counsel notes that trial counsel incorrectly advised Lively regarding his potential habitual offender status. According to postconviction counsel, defense counsel’s letters indicate that he believed Lively was eligible to be declared an habitual offender under 11 Del. C. § 4214(c), which provides that an individual that has been two times convicted of a felony and one time convicted of a Title 11 violent felony and who thereafter is convicted of a subsequent Title 11 violent felony “shall receive a minimum sentence of the statutory maximum penalty . . . up to life imprisonment.” 11 Del. C. § 4214(c). Lively’s prior convictions, however, include two Possession with Intent to Deliver a Non-Narcotic Schedule I Controlled Substance, Drug Dealing Plus an Aggravating Factor, and Possession of Ammunition by a Person Prohibited (“PABPP”). The two drug offenses are Title 16 violent felonies, but PABPP is a non-violent felony. Thus, prior to the
17 statements cannot be reasonably construed as tantamount to coercion. As this Court
has held, it is entirely appropriate for defense counsel to explain the potential
consequences of rejecting a plea offer to a defendant, including possible sentences
he might face if unsuccessful at trial.89
Moreover, as previously discussed, Lively did not complain of coercion
during his plea colloquy.90 Instead, he expressly denied that anybody had threatened
or forced him into pleading guilty.91 Lively also confirmed that he was satisfied with
his counsel’s representation and was fully advised of his rights.92
In addition, Lively has failed to establish how he was prejudiced by the plea
deal or otherwise demonstrated a reasonable probability that the outcome would
have been more beneficial to him had he rejected the plea offer. Defendant was
sentenced to the ten-year minimum mandatory Level V sentence for PFBPP and a
case at hand, Lively did not have any Title 11 violent felony convictions and was not eligible to be declared an habitual offender under 11 Del. C. § 4214(c). He was, however, eligible to be declared a habitual offender under 11 Del. C. § 4214(b), which provides that when a person has three prior felony convictions and is subsequently convicted of a Title 11 violent felony, his sentence shall be half of the statutory maximum penalty up to life imprisonment. 11 Del. C. § 4214(b). If declared an habitual offender under 11 Del. C. § 4214(b), Lively faced 10 years minimum mandatory up to life imprisonment for PFBPP and four years up to life imprisonment for CCDW. After consultation with Defendant, postconviction counsel determined not to pursue this potential postconviction claim on Lively’s behalf. Postconviction counsel also notes that Defendant’s minimum mandatory sentence is 10 years pursuant to 11 Del. C. § 1448(e)(1)(c), which states that a person’s minimum mandatory sentence is 10 years if previously convicted of any two violent felonies. 89 Skyes v. State, 2012 1413958, at *5. 90 Sentencing Transcript at A60. 91 Id. 92 Id. at A63.
18 fine for speeding. The remainder of the charges were nolle prossed. Had Lively
rejected the plea offer, the alternative of going to trial would have likely produced a
much less favorable result for him as the probability of him being convicted for both
PFBPP and CCDW was exceedingly high. As defense counsel noted in his
September 23, 2023 Letter, the evidence of Defendant’s guilt with respect to both
felonies was substantial.93 It included post-Miranda statements made by Lively
where he admitted the firearm belonged to him, leaving Lively little by way of a
defense if he were to elect to go to trial.94
Based on the weight of evidence against Lively and the potential sentences he
was facing if convicted of both felonies, it was objectively reasonable for defense
counsel to conclude that taking a plea was the most prudent defense strategy in this
case. “If an attorney makes a strategic choice ‘after thorough investigation of law
and facts relevant to plausible options’ that decision is ‘virtually unchallengeable’ .
. .”95 In view of the totality of the circumstances, defense counsel’s representation of
Lively was effective in securing a plea deal which inured to his benefit. Defendant
has failed to show how going to trial would have resulted in him receiving a lesser
sentence. Nor has he shown that there was a reasonable probability that he would
93 See September 23, 2023 Letter. 94 Id. 95 Ploof v. State, 75 A.3d 840, 852 (Del. Super. 2013) (citing Strickland v. Washington, 466 U.S. 668, 690-91 (1984).
19 not have taken the plea but would have insisted on going to trial when considering
all the facts and circumstances. In light of the foregoing, the Court finds Defendant’s
third claim of ineffective assistance of counsel regarding coercion to be without
CONCLUSION
For all the foregoing reasons, this Court concludes that the claims set forth in
Lively’s pro se Motion for Postconviction Relief are without merit. Defendant’s
claim that the firearm should have been suppressed because the search and seizure
of his vehicle and book bag were illegal is without merit because the firearm would
have been discovered during a routine inventory search of his vehicle, making such
evidence subject to the inevitable discovery rule. Defendant’s claim that the traffic
stop was illegal is likewise without merit because the officer observed Lively
commit multiple traffic violations prior to the stop, giving him reasonable suspicion
and probable cause to stop the car. Neither ground provided a basis for defense
counsel to file a motion to suppress the firearm. Therefore, his performance could
not be deficient under Strickland for failing to do so. And finally, Lively’s claim of
being coerced by defense counsel into accepting the plea offer has no basis in fact.
The statements made by defense counsel regarding his habitual offender status
reflected Defendant’s circumstances and no more. Moreover, Defendant’s
acceptance of the plea was a rationale choice given the alternatives.
20 Accordingly, Defendant’s Postconviction Motion should be DENIED and
postconviction counsels’ Motion to Withdraw should be GRANTED.
IT IS SO RECOMMENDED.
/s/ Janine M. Salomone The Honorable Janine M. Salomone
oc: Prothonotary cc: Beth A. Savitz, Esquire, Deputy Attorney General Kimberly A. Price, Esquire, Postconviction counsel Timothy Weiler, Esquire, Office of Defense Services Marques Lively, Howard R. Young Correctional Institute (SBI #00645409)