State v. Loper

• Court: Superior Court of Delaware
• Decided: September 21, 2022
• Docket: 1809005786
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) ) v. ) ) TYRELL LOPER, ) ID NO. 1809005786 ) Defendant. ) ) ) ) )

Date Decided: September 21, 2022

Upon the Defendant’s Amended Motion for Postconviction Relief Pursuant to Rule 61. DENIED.

ORDER

Erika Flaschner, Esquire, Deputy Attorney General, Delaware Department of Justice, Wilmington, Delaware, 19801, Attorney for the State of Delaware.

Benjamin S. Gifford IV, Esquire, Law Office of Benjamin S. Gifford IV, Wilmington, DE 19804

Tyrell Loper, Pro Se.

SCOTT, J.

1 INTRODUCTION

Before the Court is Defendant Tyrell Loper’s (“Defendant”) Amended Motion

for Postconviction Relief (“Motion”). Defendant filed the instant Motion for

Postconviction Relief as well as a motion for appointment of counsel on November

19, 2020. The Court granted the request and Defendant was appointed counsel. On

February 14, 2022, appointed counsel filed an Amended Motion for Post-Conviction

Relief. This Court will consider Defendant's Amended Motion for Postconviction

Relief, the State of Delaware’s (“State”) response, Trial Counsel’s filed affidavit,

and Defendant’s reply. For the reasons stated below, Defendant's Motion for

Postconviction Relief is DENIED.

PROCEDURAL BACKGROUND

On September 10, 2018, Defendant was arrested on drug related charges. On

October 8, 2018, a Delaware grand jury returned a five-count indictment, charging

Defendant with Drug Dealing Heroin (Class B Felony), Aggravated Possession of

heroin (Class B Felony), Drug Dealing Cocaine (Class D Felony), Aggravated

Possession of Cocaine (Class D Felony), and Possession of Drug Paraphernalia.

Prior to trial, the State entered a nolle prosequi on the Aggravated Possession

of Cocaine charge. On March 12, 2019, Defendant waived his right to a jury trial,

and his case proceeded that same day as a bench trial. On March 13, 2019, a judge

in this Court found the Defendant guilty of both drug dealing counts and the

2 misdemeanor paraphernalia charge and Defendant was acquitted of Aggravated

Possession of Heroin.

On September 27, 2019, Defendant was sentenced to the following:

• Drug Dealing Heroin (Class B): 20 years Level V, suspended after 3

years, for 2 years Level IV supervision, suspended after six months for

18 months of Level III.

• Drug Dealing Cocaine (Class D): 5 years of Level V, suspended after 1

year for 18 months of Level III.

• Possession of Drug Paraphernalia (misdemeanor): $50 fine

On October 7, 2019, Trial Counsel filed a Notice of Appeal with the Supreme

Court of Delaware. On October 20, 2019, Santino Ceccotti, Esquire, (“Appellate

Counsel”) filed an entry of appearance and substitution of counsel, thereby taking

Trial Counsel’s place for the appeal.

On February 24, 2020, Appellate Counsel moved to withdraw under Supreme

Court Rule 26(c) as the appeal lacked merit upon reviewing the record and the law.

Subsequently, Defendant filed points that he wished for the Supreme Court to

consider on his appeal. The State filed its response to Appellate Counsel’s brief and

the defendant’s points for consideration on March 11, 2020. On June 1, 2020, the

Supreme Court issued a decision affirming Defendant’s conviction and issued its

mandate on July 6, 2020.

3 Defendant filed a pro se Motion for Postconviction Relief as well as a motion

for appointment of counsel on November 19, 2020. The Court granted the request

and Defendant was appointed counsel. On February 14, 2022, appointed counsel

filed this Amended Motion for Post-Conviction Relief that is now before this Court.

Defendant contends his Trial Counsel was ineffective for failing to move to suppress

the search of Apartment 1 located at 812 North Adams Street in Wilmington, DE, as

well as the search of his person. Due to the allegation of ineffective assistance of

counsel, this Court ordered Trial Counsel to respond to the allegations by affidavit.

Trial Counsel’s affidavit will be considered in this Motion.

FACTS

Investigation leading to issuance of search warrant.

The following facts were contained within in the four corners of the warrant:

During the first half of August of 2018, Detective Justin Wilkers of the

Wilmington Police Department (“Lead Detective”) made contact with “a past

proven reliable confidential information” (“CI-1”) regarding an apartment located

at 812 North Adams Street in Wilmington, Delaware (“North Adams Street”). CI-1

told Lead Detective that a black male known as “Diddy” occupied Apartment 1

(described as the downstairs apartment to the immediate left) and was using it to

store and distribute heroin and cocaine. CI-1 also informed the police that “Diddy”

4 was known to keep and carry firearms. “Diddy” was described as a short, medium

build black male in his thirties with facial hair.

During the time Lead Detective was getting information from CI-1, Lead

Detective met with CI-1 to set up a controlled drug buy from “Diddy” at North

Adams Street, Apartment 1. Prior to CI-1’s arrival, a short black male fitting the

description of CI-1 entered the residence.

Before the controlled purchase, CI-1 was checked for contraband and

currency, and was supplied with a sum of departmentally issued buy money. Police

observed CI-1 enter the front main door of North Adams Street, where CI-1

remained for a brief period before exiting the building. CI-1 was searched for

contraband and currency before providing Lead Detective with a powdery

substance consistent with packaged heroin. CI-1 stated that “Diddy” was the

individual who provided him with the heroin.

During the second half of August 2018, Lead Detective made contact with a

second “past proven reliable confidential information” (“CI-2”) regarding North

Adams Street, Apartment 1. CI-2 reiterated CI-1’s information, stating that

“Diddy” distributed heroin and cocaine from Apartment 1 and described “Diddy”

as a short, brown-skinned, black male with a beard in his mid-thirties.

5 Through investigative techniques, Lead Detective identified “Diddy” as the

Defendant and then showed CI-1 and CI-2 DELJIS photographs of Defendant.

Both CIs positively identified the photographs as “Diddy.”

During the last week of August 2018, Lead Detective made contact with CI-

1 again and CI-1 confirmed Defendant was still actively distributing heroin and

cocaine from their stored location at North Adams Street.

During the first week of September 2018, Lead Detective made contact with

a confidential source (“CS”) regarding the Defendant and North Adams Street. CS

corroborated all information previously obtained from CI-1 and CI-2. CS stated

that “Diddy” was using North Adams Street, Apartment 1 to keep and distribute

large amounts of cocaine and heroin and he also utilized a white Crown Victoria or

Grand Marquis style vehicle to store illegal contraband. CS further stated which

parking lot the vehicle was parked, and that Defendant would often enter and exit

the vehicle before making the drug transactions, but the vehicle typically did not

move from the identified parking lot. The police showed a photograph of

Defendant to CS and CS identified Defendant as “Diddy”

After obtaining the information about the vehicle, Lead Detective observed

the vehicle in the parking lot and surveillance was initiated on the vehicle for

several days. The vehicle remained stationary.

6 Subsequently, Lead Detective met with CI-1 again during the first week of

September 2018 and CI-1 confirmed the drug operation was still active and

Defendant was using North Adams Street, Apartment 1 as well as the 800 blocks

of West 7th and West 8th Streets to conduct transactions.

On September 10, 2018, Lead Detective, serving as affiant and swearing to

the above investigation, applied for, and was granted a search warrant from the

Justice of the Peace Court for the State of Delaware.

DEFENDANT’S ASSERTIONS

On the face of Defendant’s Amended Motion, one ground for postconviction

relief is asserted: ineffective assistance of counsel. He alleges his trial counsel failed

to file a case-dispositive motion to suppress for want of probable cause as the warrant

relied solely on uncorroborated information provided by confidential informants,

thereby causing him prejudice. He explains that Trial Counsel provided deficient

performance by not moving to suppress the search of North Adams Street,

Apartment 1 and Defendant’s person because the search warrant granted by the court

for North Adams Street did not establish reliability of the confidential informants

whose statements were contained in the affidavit.

7 DISCUSSION I. No Procedural Bar Exist to Preclude Court from Analyzing Defendant’s Claim The Court must address Defendant's motion in regard to Rule 61(i) procedural

requirements before assessing the merits of his motion.1 If a procedural bar exists,

then the Court will not consider the merits of the postconviction claim.2

Rule 61(i)(1) bars motions for postconviction relief if the motion is filed more

than one year from final judgment.3 Defendant's Motion is not time barred by Rule

61(i)(1) because Defendant appealed his conviction to the Delaware Supreme Court,

so the judgment of conviction did not become final until July 6, 2020. Defendant

then timely filed for Postconviction Relief on November 19, 2020, within one year

of his conviction becoming final. Rule 61(i)(2)4 bars successive postconviction

motions, which is not applicable as this is Defendant's first postconviction motion.

Rule 61(i)(3) bars relief if the motion includes claims not asserted in the proceedings

leading to the final judgment.5 This bar is applicable to Defendant's claims.

Ordinarily, ineffective assistance of counsel cannot have been raised in any direct

appeal, therefore the procedural bar would not apply. Finally, Rule 61(i)(4) bars

1 Super. Ct. Crim. R. 61 (i)( 1). 2 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 3 See Super. Ct. Crim. R. 61 (i)(1) (motion must be filed within one year of when conviction becomes final.) 4 Super. Ct. Crim. R. 61(i)(2). 5 Super. Ct. Crim. R. 61(i)(3). 8 relief if the motion is based on a formally adjudicated ground.6 This bar does not

apply. Therefore, no procedural bar exists in the present case. The Court must

analyze the merits of Defendant’s Motion.

II. Ineffective Assistance of Counsel Claim Fails

A. Standard of Review

Delaware has adopted the two-prong test proffered in Strickland v.

Washington to evaluate ineffective assistance of counsel claims.7 To succeed on an

ineffective assistance of counsel claim, a petitioner must demonstrate that “counsel's

representation fell below an objective standard of reasonableness”8 and that “there

is a reasonable probability that but for counsel's unprofessional errors, the result of

the proceeding would have been different.”9

To avoid the “distorting effects of hindsight,” counsel's actions are afforded a

strong presumption of reasonableness.10 The “benchmark for judging any claim of

ineffectiveness [is to] be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

6 Super. Ct. Crim. R. 61(i)(4). 7 Albury v. State, 551 A.2d 53, 58 (Del. 1988). 8 Strickland v. Washington, 466 U.S. 668, 694 (1984). 9 Flamer v. State, 585 A.2d 736, 753 (Del. 1990). 10 Neal v. State, 80 A.3d 935, 942 (Del. 2013) (citing Strickland, 466 U.S. at 689). 9 produced a just result.”11 The Court's objective in evaluating counsel's conduct is to

“reconstruct the circumstances of counsel's challenged conduct, and to evaluate the

conduct from counsel's perspective at the time.”12

B. Trial Counsel’s representation did not fall below the objective standard of reasonableness. Trial Counsel avers his actions were effective. First, Trial Counsel states he

did not seek to suppress the evidence obtained from North Adams Street because, in

his professional opinion, the accompanying affidavit contained facts that were

corroborated by all three informants as to the identity of Defendant, description of

Defendant, the location of Defendant and the controlled buy corroborated the

illegality of activity Defendant was alleged to have engaged in. Other than vague

arguments that the warrants were not valid, Defendant does not point to anything

within the warrants’ four corners that supports his position. There were two

confidential informants, as well as a confidential source in this matter. All three

sources identified the suspect they knew as “Diddy” as an individual distributing

heroin and cocaine out of North Adams Street, as well as corroborated which

apartment “Diddy” used. The three sources positively identified Defendant is the

person they referred to as “Diddy” based on a photograph. The two confidential

11 State v. Wright, 2015 WL 648818, at *3 (Del. Super. Feb. 12, 2015) (internal quotation marks omitted). 12 Neal, 80 A.3d at 942 (citing Strickland, 466 U.S. at 689). 10 informants described Defendant in the same way, as a short black male with facial

hair in his thirties. Additionally, the information CS gave about Defendant’s car was

verified by the police surveillance and observance of the vehicle not moving. CI-1’s

information was verified by the controlled buy as the police saw an individual

matching Defendant’s description enter North Adams Street before CI-1’s arrival

and CI-1 identified “Diddy” as the person who gave him the powdery substance. The

Court agrees with Trial Counsel that the facts contained within the warrant were

sufficiently corroborated. Within the four corners of the warrant, there is probable

cause to search North Adams Street. Therefore, Trial Counsel’s decision not to move

to suppress did not fall below the objective standard of reasonableness.

CONCLUSION

Therefore, for the reasons stated above, the Defendant’s Motion for

IT IS SO ORDERED.

Judge Calvin L. Scott, Jr.