IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) I.D. No. 1710007866 ) ANDRE MURRAY, ) ) Defendant. )
Date Submitted: October 28, 2020 Date Decided: December 22, 2020
ORDER
Upon consideration of Defendant’s Motion for Postconviction Relief and
Motion for Appointment of Counsel,1 Superior Court Criminal Rule 61, statutory
and decisional law, and the record in this case, IT APPEARS THAT:
1. On October 13, 2017, Wilmington Police Officer Matthew Rosaio was
on patrol with other officers when he observed Defendant walking suspiciously on
a Wilmington sidewalk.2 Officer Rosaio approached Defendant and ultimately
seized the firearm that Defendant was carrying in his waistband.3
2. On November 11, 2017, a grand jury indicted Defendant on charges of
Carrying a Concealed Deadly Weapon (“CCDW”), Possession of a Firearm by a
Person Prohibited (“PFBPP”), and Possession of Ammunition by a Person
1 D.I. 48–49. 2 State v. Murray, 213 A.3d 571, 573 (Del. 2019). 3 Id. Prohibited (“PABPP”).4 On January 16, 2018, Defendant, represented by Ross
Flockerzie, Esq., pled not guilty to these charges.5
3. On February 2, 2018, Defendant moved to suppress the seized firearm.6
Through Attorney Flockerzie, Defendant argued that “his detention and subsequent
search violated his rights under the Fourth Amendment to the United States
Constitution” and other provisions of law.7 More specifically, Defendant asserted
that he was subjected to “an illegal investigatory detention . . . without reasonable
articulable suspicion that he had committed or was about to engage in criminal
activity.”8 On March 29, 2018, after a suppression hearing,9 the Superior Court
granted Defendant’s motion.10 On April 9, 2018, the State moved for reargument,
but on July 26, 2018, the Superior Court denied the motion.11
4. On August 16, 2018, the State appealed the Superior Court’s decision
to the Delaware Supreme Court.12 On July 10, 2019, the Supreme Court reversed,
finding that Officer Rosaio “performed a legitimate Terry stop,” which was
4 D.I. 2. 5 D.I. 6. 6 D.I. 9. 7 Id. 8 Id. 9 Officer Rosaio was the only witness who testified at the suppression hearing. State v. Murray, 213 A.3d 571, 574 (Del. 2019). 10 D.I. 14; see generally State v. Murray, 2018 WL 1611268 (Del. Super. Ct. Mar. 29, 2018). 11 D.I. 19, 24. 12 D.I. 27; see generally State v. Murray, 213 A.3d 571 (Del. 2019). An attorney other than Attorney Flockerzie represented Defendant on appeal. 2 supported by “specific and articulable facts giving rise to his suspicion that Murray
was carrying a concealed deadly weapon.”13 On February 14, 2020, Defendant pled
guilty to the CCDW charge, the State having nolle prossed the PFBPP and PABPP
charges in accordance with the plea agreement.14 The Court immediately sentenced
Defendant to 8 years at Level V, with credit for 180 days previously served, followed
by 6 months at Level III.15 Defendant was also declared a Habitual Offender
pursuant to 11 Del. C. § 4214 (a) and (c).16 Defendant did not appeal his conviction
or sentence to the Delaware Supreme Court.
5. On October 28, 2020, Defendant filed the instant Motions.17 In his
Motion for Postconviction Relief, Defendant makes three arguments.18 First,
Defendant asserts that his Fourth Amendment rights were violated because Officer
Rosaio’s basis for detaining him “did not rise to the level of reasonable articulable
suspicion that [Defendant] was subject to seizure for violating the law.”19 Second,
Defendant alleges ineffective assistance of counsel (“IAC”) because Attorney
Flockerzie coerced him into pleading guilty to the CCDW charge by telling him that
he could face 26 years in prison.20 Third, Defendant alleges IAC because Attorney
13 Murray, 213 A.3d at 574, 579. 14 D.I. 42. 15 D.I. 45. 16 Id. 17 D.I. 48–49. 18 D.I. 48. 19 Id. (internal quotation marks omitted). 20 Id. 3 Flockerzie failed to argue at the suppression hearing that the officers did not know
Defendant’s identity, did not see a crime being committed, and did not know whether
Defendant was licensed to carry a concealed deadly weapon.21
6. Before addressing the merits of Defendant’s arguments, the Court must
consult Rule 61’s procedural bars.22 Doing so, the Court finds that Defendant’s first
argument—the reasonable articulable suspicion argument—was formerly
adjudicated and is therefore procedurally barred pursuant to Rule 61(i)(4).23 As
noted above, the State appealed the Superior Court’s decision granting Defendant’s
motion to suppress the seized firearm.24 On appeal, the Supreme Court expressly
found that Officer Rosaio “performed a legitimate Terry stop,” which was supported
by “specific and articulable facts giving rise to his suspicion that Murray was
carrying a concealed deadly weapon.”25 Defendant cannot relitigate that issue here.
Accordingly, Defendant’s first argument is procedurally barred. Defendant’s second
and third arguments are not, however, so the Court will address the merits of those
arguments.
21 Id. 22 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 23 Super Ct. Crim. R. 61(i)(4) (“Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred.”). 24 D.I. 27. 25 State v. Murray, 213 A.3d 571, 574, 579 (Del. 2019). 4 7. Defendant’s second argument—that Attorney Flockerzie coerced
Defendant into pleading guilty—is belied by the transcript of Defendant’s plea
colloquy. For instance, the Court asked Defendant, “Are you freely and voluntarily
admitting to the crime of carrying a concealed deadly weapon and admitting that
you’re eligible as a habitual offender as a result of the prior convictions I read to
you?”26 Defendant answered, “Yes, Your Honor.”27 In addition, the Court asked
Defendant, “Has anyone threatened or forced you to enter into this plea?”28 And
Defendant answered, “No.”29 Absent “clear and convincing evidence to the
contrary,” a Defendant “is bound . . . by his sworn testimony prior to the acceptance
of the guilty plea.”30 Accordingly, the Court finds that Defendant’s second argument
is without merit.
8. Defendant’s third argument is that Attorney Flockerzie failed to argue
at the suppression hearing that the officers did not know who Defendant was, did
not see a crime being committed, and did not know whether Defendant was licensed
to carry a concealed firearm.31 As an initial matter, the Superior Court granted
Defendant’s motion to suppress, so Defendant was not prejudiced by Attorney
26 Guilty Plea by Appointment Transcript, at 13:16–20 (emphasis added). 27 Id. at 13:21. 28 Id. at 14:4–5 (emphasis added). 29 Id. at 14:6. 30 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 31 D.I. 48. 5 Flockerzie’s performance at the suppression hearing.32 Further, in his brief in
support of Defendant’s motion to suppress, Attorney Flockerzie wrote the following:
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, ) ) v. ) I.D. No. 1710007866 ) ANDRE MURRAY, ) ) Defendant. )
Date Submitted: October 28, 2020 Date Decided: December 22, 2020
ORDER
Upon consideration of Defendant’s Motion for Postconviction Relief and
Motion for Appointment of Counsel,1 Superior Court Criminal Rule 61, statutory
and decisional law, and the record in this case, IT APPEARS THAT:
1. On October 13, 2017, Wilmington Police Officer Matthew Rosaio was
on patrol with other officers when he observed Defendant walking suspiciously on
a Wilmington sidewalk.2 Officer Rosaio approached Defendant and ultimately
seized the firearm that Defendant was carrying in his waistband.3
2. On November 11, 2017, a grand jury indicted Defendant on charges of
Carrying a Concealed Deadly Weapon (“CCDW”), Possession of a Firearm by a
Person Prohibited (“PFBPP”), and Possession of Ammunition by a Person
1 D.I. 48–49. 2 State v. Murray, 213 A.3d 571, 573 (Del. 2019). 3 Id. Prohibited (“PABPP”).4 On January 16, 2018, Defendant, represented by Ross
Flockerzie, Esq., pled not guilty to these charges.5
3. On February 2, 2018, Defendant moved to suppress the seized firearm.6
Through Attorney Flockerzie, Defendant argued that “his detention and subsequent
search violated his rights under the Fourth Amendment to the United States
Constitution” and other provisions of law.7 More specifically, Defendant asserted
that he was subjected to “an illegal investigatory detention . . . without reasonable
articulable suspicion that he had committed or was about to engage in criminal
activity.”8 On March 29, 2018, after a suppression hearing,9 the Superior Court
granted Defendant’s motion.10 On April 9, 2018, the State moved for reargument,
but on July 26, 2018, the Superior Court denied the motion.11
4. On August 16, 2018, the State appealed the Superior Court’s decision
to the Delaware Supreme Court.12 On July 10, 2019, the Supreme Court reversed,
finding that Officer Rosaio “performed a legitimate Terry stop,” which was
4 D.I. 2. 5 D.I. 6. 6 D.I. 9. 7 Id. 8 Id. 9 Officer Rosaio was the only witness who testified at the suppression hearing. State v. Murray, 213 A.3d 571, 574 (Del. 2019). 10 D.I. 14; see generally State v. Murray, 2018 WL 1611268 (Del. Super. Ct. Mar. 29, 2018). 11 D.I. 19, 24. 12 D.I. 27; see generally State v. Murray, 213 A.3d 571 (Del. 2019). An attorney other than Attorney Flockerzie represented Defendant on appeal. 2 supported by “specific and articulable facts giving rise to his suspicion that Murray
was carrying a concealed deadly weapon.”13 On February 14, 2020, Defendant pled
guilty to the CCDW charge, the State having nolle prossed the PFBPP and PABPP
charges in accordance with the plea agreement.14 The Court immediately sentenced
Defendant to 8 years at Level V, with credit for 180 days previously served, followed
by 6 months at Level III.15 Defendant was also declared a Habitual Offender
pursuant to 11 Del. C. § 4214 (a) and (c).16 Defendant did not appeal his conviction
or sentence to the Delaware Supreme Court.
5. On October 28, 2020, Defendant filed the instant Motions.17 In his
Motion for Postconviction Relief, Defendant makes three arguments.18 First,
Defendant asserts that his Fourth Amendment rights were violated because Officer
Rosaio’s basis for detaining him “did not rise to the level of reasonable articulable
suspicion that [Defendant] was subject to seizure for violating the law.”19 Second,
Defendant alleges ineffective assistance of counsel (“IAC”) because Attorney
Flockerzie coerced him into pleading guilty to the CCDW charge by telling him that
he could face 26 years in prison.20 Third, Defendant alleges IAC because Attorney
13 Murray, 213 A.3d at 574, 579. 14 D.I. 42. 15 D.I. 45. 16 Id. 17 D.I. 48–49. 18 D.I. 48. 19 Id. (internal quotation marks omitted). 20 Id. 3 Flockerzie failed to argue at the suppression hearing that the officers did not know
Defendant’s identity, did not see a crime being committed, and did not know whether
Defendant was licensed to carry a concealed deadly weapon.21
6. Before addressing the merits of Defendant’s arguments, the Court must
consult Rule 61’s procedural bars.22 Doing so, the Court finds that Defendant’s first
argument—the reasonable articulable suspicion argument—was formerly
adjudicated and is therefore procedurally barred pursuant to Rule 61(i)(4).23 As
noted above, the State appealed the Superior Court’s decision granting Defendant’s
motion to suppress the seized firearm.24 On appeal, the Supreme Court expressly
found that Officer Rosaio “performed a legitimate Terry stop,” which was supported
by “specific and articulable facts giving rise to his suspicion that Murray was
carrying a concealed deadly weapon.”25 Defendant cannot relitigate that issue here.
Accordingly, Defendant’s first argument is procedurally barred. Defendant’s second
and third arguments are not, however, so the Court will address the merits of those
arguments.
21 Id. 22 Younger v. State, 580 A.2d 552, 554 (Del. 1990). 23 Super Ct. Crim. R. 61(i)(4) (“Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred.”). 24 D.I. 27. 25 State v. Murray, 213 A.3d 571, 574, 579 (Del. 2019). 4 7. Defendant’s second argument—that Attorney Flockerzie coerced
Defendant into pleading guilty—is belied by the transcript of Defendant’s plea
colloquy. For instance, the Court asked Defendant, “Are you freely and voluntarily
admitting to the crime of carrying a concealed deadly weapon and admitting that
you’re eligible as a habitual offender as a result of the prior convictions I read to
you?”26 Defendant answered, “Yes, Your Honor.”27 In addition, the Court asked
Defendant, “Has anyone threatened or forced you to enter into this plea?”28 And
Defendant answered, “No.”29 Absent “clear and convincing evidence to the
contrary,” a Defendant “is bound . . . by his sworn testimony prior to the acceptance
of the guilty plea.”30 Accordingly, the Court finds that Defendant’s second argument
is without merit.
8. Defendant’s third argument is that Attorney Flockerzie failed to argue
at the suppression hearing that the officers did not know who Defendant was, did
not see a crime being committed, and did not know whether Defendant was licensed
to carry a concealed firearm.31 As an initial matter, the Superior Court granted
Defendant’s motion to suppress, so Defendant was not prejudiced by Attorney
26 Guilty Plea by Appointment Transcript, at 13:16–20 (emphasis added). 27 Id. at 13:21. 28 Id. at 14:4–5 (emphasis added). 29 Id. at 14:6. 30 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 31 D.I. 48. 5 Flockerzie’s performance at the suppression hearing.32 Further, in his brief in
support of Defendant’s motion to suppress, Attorney Flockerzie wrote the following:
There is no evidence police received a tip that Murray was engaging in criminal activity. There is no evidence police were investigating Murray. There is no evidence police were conducting surveillance of Murray before seeing him on this date. There is no evidence police observed Murray engage in any illegal activity.33
Although these assertions appeared in the brief rather than in the courtroom,
it cannot be said that Attorney Flockerzie failed to raise the arguments that
Defendant urged. Lastly, in its decision on appeal, the Supreme Court noted
that “the presence or absence of a license [to carry a concealed deadly
weapon] need not, and should not, be considered in determining whether there
was reasonable, articulable suspicion to stop [a] suspect.”34 So even if
Attorney Flockerzie had expressly argued at the hearing that the officers did
not know whether Defendant had a license, that would not have been a
winning argument on appeal. Accordingly, the Court finds that Defendant’s
third argument is without merit.
9. The Court will now address Defendant’s Motion for Appointment of
Counsel.35 Rule 61(e)(2) sets out the applicable standard because Defendant pled
32 See generally State v. Murray, 2018 WL 1611268 (Del. Super. Ct. Mar. 29, 2018). 33 D.I. 9. 34 State v. Murray, 213 A.3d 571, 580 n.55 (Del. 2019). 35 D.I. 49. 6 guilty and has not previously filed a motion for postconviction relief.36 Pursuant to
Rule 61(e)(2), the Court may appoint counsel only if it determines that
(i) the conviction has been affirmed by final order upon direct appellate review or direct appellate review is unavailable; (ii) the motion sets forth a substantial claim that the movant received ineffective assistance of counsel in relation to the plea of guilty or nolo contendere; (iii) granting the motion would result in vacatur of the judgment of conviction for which the movant is in custody; and (iv) specific exceptional circumstances warrant the appointment of counsel.37
As discussed above, Defendant’s Motion for Postconviction Relief fails to
assert a substantial IAC claim. Accordingly, the Court must deny Defendant’s
Motion for Appointment of Counsel.
NOW, THEREFORE, IT IS ORDERED that Defendant’s Motion for
Postconviction Relief and Motion for Appointment of Counsel are DENIED.
Jan R. Jurden Jan R. Jurden, President Judge
Original to Prothonotary
cc: Andre Murray (SBI# 00275506) Erika R. Flaschner, Esq. (DAG) 36 Super Ct. Crim. R. 61(e)(2) (governing “[f]irst postconviction motions in guilty plea cases”). 37 Id. 7