State v. Tingle

• Court: Superior Court of Delaware
• Decided: August 26, 2022
• Docket: 1702000035 1702000526
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ) Plaintiff, ) ) ) v. ) Cr. ID. No. 1702000035 ) 1702000526 ) JERMAINE TINGLE, ) ) Defendant. )

Submitted: June 17, 2022 Decided: August 26, 2022

COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED

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

Benjamin S. Gifford, IV, Esquire and Natalie S. Woloshin, Esquire, Wilmington, Delaware, Attorneys for Defendant Jermaine Tingle

PARKER, Commissioner This 26th day of August 2022, upon consideration of Defendant’s Motion

for Postconviction Relief, it appears to the Court as follows:

BACKGROUND AND PROCEDURAL HISTORY

In 2017, Defendant Jermaine Tingle, along with codefendants Stephen

Dunfee and Kristen Butler, was indicted on multiple drug and firearm offenses.1

Tingle’s trial counsel filed two motions to suppress. The first, filed on

October 4, 2017, sought to suppress the evidence seized pursuant to the search

warrants on the ground that there was a misstatement in the affidavit of probable

cause.2 On December 1, 2017, the Superior Court denied the motion finding it

clear on the face of the warrants that the questioned reference was a typographical

error.3

The second motion to suppress, filed on December 5, 2017, was based on

alleged late discovery from the State.4 Tingle sought to suppress one of the drug

lab reports and the police officer expert testimony regarding drug dealing based on

the late submission from the State.5 The Superior Court denied the motion.6

1 As to Criminal ID No. 1702000035, Superior Court Docket Nos. 80 & 81; As to Criminal ID No. 1702000526, Superior Court Docket Nos. 78 & 79: Appendix to the Defendant’s Amended Motion for Postconviction Relief (“Def. App.”) at pgs. A49-56, 112-120. 2 Def. App. 70-75. 3 As to Criminal ID No. 1702000035, Superior Court Docket No. 21; As to Criminal ID No. 1702000526, Superior Court Docket No. 17 -Order dated December 1, 2017 denying motion to suppress. 4 Def. App. 124-128. 5 Id. 6 Def. App. 198.

1 If convicted of all the charges at trial, Tingle was facing a minimum-

mandatory jail sentence of at least 65 years as a habitual offender. Tingle rejected

the State’s offer to a guilty plea to two of the fourteen charges (Conspiracy Second

Degree and Possession of a Firearm During the Commission of a Felony

(“PFDCF”) with a sentence recommendation of a total of 27 years of prison time,

with a 25-year minimum-mandatory cap.7 As discussed more fully below,

following his jury trial, Tingle was ultimately sentenced to 20 years of

unsuspended prison time, with a 17-year minimum-mandatory cap. A sentence

more favorable than the plea offered by the State.

Tingle’s trial was scheduled to proceed in a joint trial along with his two

codefendants. The other two defendants, Dunfee and Butler, failed to appear for

trial.8 Tingle was the only defendant who proceeded to trial on January 3, 2018.

Following a four-day trial, on January 9, 2018, a Superior Court jury

convicted Tingle of two counts of drug dealing, two counts of aggravated

possession, two counts of conspiracy second degree, one count of possession of a

firearm by a person prohibited (“PFBPP”), one count of possession of drug

paraphernalia, one count of drug dealing with an aggravated factor, and one count

7 Def. App. 199-201; As to Criminal ID No. 1702000035, Superior Court Docket No. 34; As to Criminal ID No. 1702000526, Superior Court Docket No. 27 - rejected plea offer. 8 Def. App. 185-187.

2 of use of a cellular device while driving.9 The Superior Court jury found Tingle

not guilty of PFDCF.10

On September 21, 2018, Tingle was sentenced. Prior to sentencing, the

Superior Court granted the State’s motion to declare Tingle an habitual offender on

the PFBPP conviction.11 The Superior Court granted the defense motion to

consolidate the felony drug convictions for the purpose of sentencing.12 Tingle was

sentenced to a total of fifty-two (52) years of Level V incarceration, suspended

after twenty (20) years, followed by eighteen (18) months at Level III probation.13

Seventeen (17) of the twenty (20) years of unsuspended Level V time constituted a

mandatory sentence.14

Tingle filed a direct appeal to the Delaware Supreme Court. On May 10,

2019, the Delaware Supreme Court determined that the appeal was without merit

and affirmed the judgment of the Superior Court.15

On June 20, 2019, Tingle filed a pro se motion for postconviction relief and

a request for the appointment of counsel.16 The Court granted Tingle’s request for

9 Def. App. 656-659. 10 Def. App. 657-658. 11 Def. App. 721-722. 12 Def. App. 765-766. 13 Def. App. 792-800. 14 Id. 15 Tingle v. State, 2019 WL 2079060 (Del.). 16 Def. App. 943-947; 948-951.

3 the appointment of counsel.17 On October 29, 2020, appointed counsel filed an

Amended Motion for Postconviction Relief. Thereafter, trial counsel submitted an

Affidavit responding to Tingle’s claims. The State submitted a response and

Tingle submitted a reply thereto.

Following briefing on the motion, on April 13, 2022, a hearing was held

during which the parties were instructed to submit supplemental briefing on certain

issues. On April 20, 2022, trial counsel submitted a supplemental submission, and,

on June 17, 2022, both the State and defense counsel filed their respective

supplemental submissions. Tingle’s Rule 61 motion is now fully briefed and ripe

for consideration.

FACTS

On January 31, 2017, members of the Delaware State Police Governor’s

Task Force were on patrol in the City of Wilmington.18 At approximately 9:00

p.m., the Officers were at a traffic light behind a black Kia Sportage and observed

the driver of the vehicle talking on his cell phone holding the phone at his ear.19 A

motor vehicle stop was conducted for the cell phone violation and Tingle was

17 Def. App. 952. 18 Def. App. 952. 19 Def. App. 223-225.

4 identified as the driver, and Stephen Dunfee was identified as the front passenger.20

The vehicle Tingle was driving was a rental car.21

During the traffic stop, both Tingle and Dunfee engaged in suspicious

behavior. Tingle’s hands were shaking and he was trying to control his breathing.22

Dunfee was eventually removed from the vehicle and found to be in possession of

650 bags of heroin.23 A search incident to the arrest of Tingle yielded

approximately $2,000 of suspected drug proceeds and a key to an Audi was found

in the center console of the Kia.24 The money found in Tingle’s pocket was rubber

banded with small, black rubber bands commonly used to package bundles of

heroin.25 Tingle and Dunfee were arrested and taken into custody.26

Of the 650 bags of heroin, 638 were stamped “100%” and 12 were not

stamped. Tests confirmed that the stamped bags weighed approximately 4.36

grams and the unstamped bags weighed approximately .05 grams.27 The amount of

heroin seized would retail for $1,750-$2,000.28

Detective Stewart from the New Castle County Police Department testified

at trial as an expert. He testified that drug dealers frequently use rental cars, so

20 Def. App. 225-227. 21 Def. App. 227. 22 Def. App. 229. 23 Def. App. 232-237; 662-663. 24 Def. App. 234. 25 Def. App. 110-111. 26 Def. App. 233. 27 Def. App. 662-663. 28 Def. App. 447.

5 they are not always driving the same vehicle, and they are not easily identified by

police or individuals that want to rob them.29 Detective Stewart also testified that

in many instances drug dealers work in pairs, one has the money, the other has the

drugs.30 The person higher up in the dealing scheme would be the person with the

money. That person would usually want to distance himself from the drugs.31

At the time of the arrest, Tingle was on Level III probation with a reported

address of 824 N. West Street, Apartment 14.32 Probation Officer Vettori

responded to the car stop providing back-up to the officers already at the scene.33

Following the car stop, Officer Vettori contacted his supervisor and conducted a

case conference regarding the facts of the car stop.34 Approval was granted to

conduct an administrative search at Tingle’s reported address.35

At the time of the search, Tingle’s uncle was present.36 He told police that

Tingle lived there, slept on the sofa, and kept his belongings in the closet in the

bedroom and a white dresser in the living room.37 In the bedroom closet, police

located bins of male clothing, letters addressed to Tingle, and a black plastic bag

29 Def. App. 448, 453. 30 Def. App. 449. 31 Def. App. 475-476. 32 Def. App. 110-111. 33 Def. App. 110-111, 299-300, 307-308. 34 Def. App. 110-111. 35 Def. App. 110-111. 36 Def. App. 303. 37 Def. App. 303; 306.

6 filled with cash.38 Inside the plastic bag, there were ten stacks of cash wrapped in

black rubber bands of $2,000 each, totaling $20,000.39 In the white dresser, police

found an additional $1,065 cash in a pair of jeans.40

The next morning, on February 1, 2017, Detective Wilkers of the

Wilmington Police Department learned that Tingle and Dunfee had been arrested.41

Completely separate from the car stop with the Delaware State Police on the

evening of January 31, 2017, the Wilmington Police Department had been

conducting a drug investigation involving Tingle and Dunfee involving the illegal

sale of narcotics from a home at 70 Hillside Road, Wilmington, Delaware.42

Tingle was frequently observed coming and going to that residence, a single-

family house with an attached garage, in a blue Audi A4 sedan.43

Independent of the traffic stop the evening before, a search warrant had

already been prepared for that Hillside Road residence. When Detective Wilkers

learned of the traffic stop, he wanted to immediately execute the search warrant at

the residence before any evidence could be removed.44

38 Def. App. 303-304. 39 Def. App. 304. 40 Def. App. 306. 41 Def. App. 312. 42 Def. App. 312-313. 43 Def. App. 312-314. 44 Def. App. 312-314.

7 On February 1, 2017, a search warrant was executed at the Hillside Road

residence.45 Upon arrival at the residence, Kristen Butler advised the police

officers that she was Dunfee’s girlfriend and identified the bedroom she and

Dunfee shared.46 In that bedroom, police found a digital scale, several bags of

heroin stamped “Sony” in a dresser, and a similar bag of heroin on the floor. In an

unlocked safe in that bedroom, police found a partial bundle of heroin, $870 cash,

and an unloaded .50 caliber Desert Eagle firearm.47 Detective Wilkers testified that

it was the only .50 caliber firearm that he had ever recovered in his eight years with

the Wilmington Police Department.48

Although the firearm was swabbed for DNA, due to a mixed DNA profile

indicating that the firearm was handled by multiple people, no conclusions could

be drawn as to whether any particular individual handled the firearm.49 No latent

fingerprints of any value were found on the firearm.50

In the garage of the Hillside residence, police found the blue 2002 Audi A4,

which Detective Wilkers had seen Tingle, and only Tingle, drive.51 The Audi was

45 Def. App. 313. 46 Def. App. 314-315. 47 Def. App. 318-324. 48 Def. App. 326-327. The firearm was an Israeli Military Industries Desert Eagle .50 caliber semi-automatic pistol. It retailed for about $1,700, weighed four and a half pounds, and was one of the more powerful handguns on the market. Id. at 378-380. 49 Def. App. 375, 395-399. 50 Def. App. 107-108. 51 Def. App. 328, 354-355.

8 locked.52 In the garage, police also found approximately 200 grams of marijuana

in a heat-sealed plastic bag placed in a dog food bag.53 On the garage floor next to

the Audi, police found a red plastic bag that contained Ziplock bags and a black

plastic bag.54 Inside the black bag were additional items used to package heroin.

Specifically, inside the black bag were clear plastic “Apple bags” (used to package

individual bags of heroin), unused blue glassine bags, a package of 300 black

rubber bands, a straw cut diagonally (which is commonly used to fill heroin bags),

a bottle of Mannitol (which is commonly used to cut heroin to increase weight),

and five glassine bags containing heroin, stamped “Pinky”.55

The doors to the blue Audi A4 were locked.56 No key to the Audi was found

at the Hillside residence.57 Police towed the Audi to the police station, obtained a

separate search warrant, and searched it.58 The Audi was registered to Tingle’s

mother, Anna Watson.59 Inside the vehicle, police found multiple documents and

personal items belonging to Tingle.60 A wallet belonging to Tingle was also found

52 Def. App. 328. 53 Def. App. 328. The amount of marijuana found would be the equivalent of one thousand marijuana cigarettes. Id. at 452. 54 Def. App. 328-329. 55 Def. App. 329-334. 56 Def. App. 328, 336. 57 Def. App. 364-365. 58 Def. App. 336-337. 59 Def. App. 336. 60 Def. App. 337-341.

9 in the vehicle.61 In the trunk of the Audi, police found a green cellophane wrapped

package that contained approximately 650 bags of heroin.62 The heroin was

grouped in bundles of 13 bags, held together by black rubber bands, and the vast

majority of the bags were stamped “100%”.63 The heroin located in the trunk of

Tingle’s vehicle would retail for around $2,000.64

The heroin found in the trunk of Tingle’s car (stamped “100%”) was the

same brand as the heroin found on Dunfee (also stamped “100%”) during the car

stop the evening before.65

Tingle’s documents found in the Audi referenced three different mailing

addresses for Tingle.66 Detective Stewart testified that drug dealers are often

associated with several different addresses to avoid being detected. The more the

dealer moves around the safer he is going to be.67

Detective Stewart also testified that drug dealers, in order to avoid being

detected, tend to drive rental cars and change them on a regular basis.68 Tingle was

61 Def. App. 337, 341. 62 Def. App. 337, 342. 63 Def. App. 337, 342-344. 64 Def. App. 453. 65 Def. App. 344, 453. 66 Def. App. 337-342. (a pay stub for Tingle showed his address at 914 E. 7th Street; a rental application showed Tingle’s address as 211 N. New Street, Dover; and a receipt from Meineke Car Care Center showed Tingle’s address as 824 N. West Street). 67 Def. App. 453. 68 Def. App. 448, 453.

10 driving a rental car the night of the car stop but he also drove the Audi which was

in the garage at the Hillside residence. He also drove a black truck.69

Tingle was the only person in possession of the key to the locked Audi in the

garage at the Hillside residence. The Audi key found in the center console of the

Kia that Tingle was driving at the time of the traffic stop was the key to Audi.70

At trial, Tingle and his girlfriend, Amanda Long, testified on his behalf.71

Tingle’s defense, essentially, was that he knew nothing about the drugs, Dunfee

was the drug dealer, and that Tingle was in the wrong place at the wrong time

when they were pulled over by the Delaware State Police.72

Amanda testified that she also lived at the Hillside residence along with

Dunfee and his girlfriend and that Tingle left his Audi in the garage to get his car

serviced. They both testified that something was wrong with the brakes and that

Dunfee was going to take the car in for servicing.73 Amanda testified that in

addition to the blue Audi, Tingle also had a black truck.74 She testified that she

thought Dunfee had an extra key to the Audi to take it to the mechanic.75

On the night of the traffic stop, Tingle was driving a rental car not his black

truck or his Audi. Although they both testified that the Audi was at the Hillside

69 Def. App. 496-498. 70 Def. App. 234, 348-350, 552. 71 Def. App. 490, 514. 72 Def. App. 515-540. 73 Def. App. 493-500; 525-526. 74 Def. App. 498. 75 Def. App. 499-500.

11 residence so that Dunfee could take the car in for servicing, there was no key found

at the Hillside residence. The only key found was in Tingle’s possession.76

As for the $20,000 found in his bedroom closet, Tingle testified that in his

work for his mother’s charitable organization, Anna’s House, he collected

donations.77 He testified that he would keep the donations, which were mostly

cash, until the accountant came up from Virginia to collect them.78

The State argued that Tingle claimed to be working for his mother’s

nonprofit organization doing clerical work but that it made no sense that a

nonprofit organization would store $20,000 in donations in the back of an

employee’s closet in a plastic bag, rubber banded in ten stacks of $2,000 each.79

The State argued that the money found in Tingle’s closet was money he received

for selling drugs. Nonprofits put their cash in a bank. Drug dealers cannot.

Nonprofits can collect donations in the form of checks and credit card donations.

Drug dealers cannot.80

The Superior Court jury found Tingle not guilty of PFDCF, and guilty of the

remaining counts of the indictment.

76 Def. App. 234, 348-350.503-504. 77 Def. App. 539-540. 78 Def. App. 539-540. 79 Def. App. 583-586. 80 Def. App. 583-586.

12 TINGLE’S RULE 61 MOTION

In the subject Rule 61 motion, Tingle raises seven ineffective assistance of

counsel claims.

In order to prevail on an ineffective assistance of counsel claim, Tingle must

meet the two-pronged Strickland test by showing that: (1) counsel performed at a

level “below an objective standard of reasonableness” and that, (2) the deficient

performance prejudiced the defense.81

The first prong requires the defendant to show by a preponderance of the

evidence that defense counsel was not reasonably competent, while the second

prong requires him to show that there is a reasonable probability that, but for

defense counsel’s unprofessional errors, the outcome of the proceedings would

have been different.82 In order to prevail on a claim of ineffective assistance of

counsel, the defendant must demonstrate that, but for counsel’s alleged error, he

would have been acquitted.83

Mere allegations of ineffectiveness or conclusory statements will not suffice;

instead, a defendant must make and substantiate concrete allegations of actual

prejudice.84 The test is not whether the defendant can demonstrate that the error

81 Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). 82 Id. at 687-88, 694. 83 Couch v. State, 945 A.2d 593 (Del. 2008). 84 Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Gonzalez, 2019 WL 1762976, *1 (Del.).

13 had some “conceivable effect” on the outcome but rather whether the error was so

serious as to deprive the defendant of a fair trial.85

Although not insurmountable, the Strickland standard is highly demanding

and leads to a strong presumption that counsel’s conduct fell within a wide range

of reasonable professional assistance.86 Moreover, there is a strong presumption

that defense counsel’s conduct constituted sound trial strategy.87

In considering post-trial attacks on counsel, Strickland cautions that trial

counsel’s performance should be reviewed from the defense counsel’s perspective

at the time decisions were being made.88 It is all too easy for a court, examining

counsel’s defense after it has proved unsuccessful, to conclude that a particular act

or omission of counsel was unreasonable.89 A fair assessment of attorney

performance requires that every effort be made to eliminate the distorting efforts of

hindsight. Second guessing or “Monday morning quarterbacking” should be

avoided. 90

A defendant is not guaranteed perfect representation, only a reasonably

competent attorney. There is no expectation that competent counsel will be a

85 State v. Gonzalez, 2019 WL 1762976, *1 (Del.); Harrington v. Richter, 131 S.Ct. 770, 791 (2011). 86 Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008). 87 Strickland v. Washington, 466 U.S. 668, 689 (1984). 88 Id. 89 Id. 90 Id.

14 flawless strategist or tactician.91 There are countless ways to provide effective

assistance in any given case. Even the best criminal defense attorneys would not

defend a particular client in the same way. Consequently, defense counsel must be

given wide latitude in making tactical decisions.92 Counsel is permitted to make

reasonable decisions that particular investigations are unnecessary. A defense

counsel can avoid activities that appear distractive for more important duties.

There is a strong presumption that defense counsel’s focus on certain issues to the

exclusion of others reflects trial tactics rather than sheer neglect.93

With this backdrop in mind, we turn to Tingle’s specific claims.

Claim I: Failing to Challenge the Administrative Search

Tingle claims that trial counsel was ineffective for failing to file a motion to

suppress the administrative search of his residence at 824 N. West Street, arguing

that there was no nexus between any suspected wrongdoing and the residence. At

the residence, over $20,000 in suspected drug proceeds was found during the

search.

Trial counsel advised that he did not file a suppression motion of the search

of Tingle’s residence at 824 N. West Street because he did not believe any such

91 Harrington v. Richter, 131 S.Ct. 770, 787-792 (2011). 92 Id. at 788-789. 93 Id. at 787-790.

15 motion was meritorious.94 Tingle was a Level III probationer and was arrested

following a traffic stop. At the time of the traffic stop, Tingle was in possession of

over $2,000 banded together with small, black rubber bands, and his passenger was

in possession of a substantial quantity of heroin packaged for sale.95

Tingle’s probation officer responded to the car stop, and following the car

stop, contacted his supervisor and conducted a case conference regarding the facts

of the car stop.96 The facts entailed that Tingle was the driver of a rental vehicle

that was stopped, that he was in possession of over $2,000 cash banded together

with small, black rubber bands commonly used to package bundles of heroin and

the passenger, Dunfee, had a large amount of heroin on him.97 Law enforcement is

aware that drug dealers frequently use rental cars and work in pairs.98 One person

has the money, the other the drugs.99

Given these facts, approval was granted to conduct an administrative search

at Tingle’s reported address.100 Given these facts, there was reasonable suspicion

to believe that Tingle was engaged in drug dealing. Given these facts, trial counsel

did not believe that there was any basis to move to suppress the search of Tingle’s

94 See, Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 95 Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 96 Def. App. 110-111, 299-300, 307-308. 97 Def. App. 110-111. 98 Def. App. 448-449, 453, 475-476. 99 Id. 100 Def. App. 110-111.

16 residence.101 An ineffective assistance of counsel claim based on the failure to

object to evidence is without merit if trial counsel lacked a legal or factual basis to

object to the evidence.102

An administrative search of a probationer’s residence requires only

reasonable suspicion that the probationer is in violation of his probation.103 This

standard is met when the totality of the circumstances indicate that the probation

officer had a particularized and objective basis for the suspected legal

wrongdoing.104

Tingle’s reliance on Culver v. State105 and State v. Johnson106 to support his

position that the administrative search was improper is misplaced. Each case must

be viewed based on the totality of the circumstances presented therein. The

administrative searches in Culver and Johnson stemmed from unverified

anonymous tips that the probationer was involved in criminal activity.107 On the

other hand, this case stemmed from Tingle’s probation officers and other law

enforcements’ own personal observations.

101 Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 102 State v. Exum, 2002 WL 100576, at *2 (Del.Super.), aff’d, 2002 WL 2017230, at *1 (Del.). 103 Jacklin v. State, 2011 WL 809684, *2 (Del.); Donald, 903 A.2d at 318-319 (Del. 2006). 104 Jacklin, 2011 WL 809684 at *2. 105 Culver v. State, 956 A.2d 5 (Del. 2008). 106 State v. Johnson, 2014 WL 6661154 (Del.Super.). 107 See, Culver, 956 A.2d at 8 (police received an anonymous tip from an unknown caller with no past proven reliability); Johnson, 2014 WL 6661154, at *1, 3.

17 Tingle’s probation officer followed the proper procedures prior to

conducting the search of Tingle’s residence. A case conference was conducted

between the probation officer and his supervisor and approval was granted to

conduct the administrative search. Here, the determination was not based on an

informant’s tip, so the reliability of the informant was not at issue. The approval

for the administrative search was granted based on the probation officer’s and

other law enforcements’ personal observations that they reasonably suspected that

Tingle was engaged in drug dealing.

Trial counsel was not deficient in failing to file a motion to suppress the

administrative search of Tingle’s residence that counsel believed had no merit.

Counsel’s belief that any such motion was meritless is objectively reasonable in

light of the facts and circumstances of this case. This claim is without merit.

Claim II- Failure to Correct the Record

Tingle contends that trial counsel was ineffective for failing to correct the

record after Detective Radcliffe mistakenly testified on cross-examination that he

located additional heroin in the center console of the vehicle during the car stop.

Tingle contends that he was prejudiced because this error in testimony was the sole

piece of evidence placing Tingle in actual, physical control of the heroin during the

car stop.

18 Detective Radcliffe testified on direct examination that the only drugs

recovered during the car stop were the 650 bags of heroin located in Dunfee’s

pants.108 However, at the end of trial counsel’s cross-examination, Detective

Radcliffe mistakenly testified that additional heroin was located in the center

console of the vehicle during the car stop.109

This mistaken testimony was never mentioned, argued, or referred to again

by either the State or by defense counsel. Neither party mentioned this testimony

during closing argument or at any other time.

Any error in failing to correct improperly admitted testimony may be

deemed to be harmless when the evidence exclusive of the improperly admitted

evidence is sufficient to sustain a conviction.110 In this case, the error was

harmless.

The State, and the Court, made it clear to the jury that possession does not

have to be actual but can be constructive.111 The Court instructed the jury:

Possession includes actual possession and constructive possession. . . Constructive possession means the substance was within defendant’s reasonable control. That is, in or about the defendant’s person, premises, belongings or vehicle. In other words, defendant had constructive possession over a substance if defendant had both the power and the intention at a given time to exercise control over the 108 Def. App. 232-233, 246-247. 109 Def. App. 253-254. 110 See, Wilson v. State, 2022 WL 212692, *4 (Del.); Cooke v. State, 97 A.3d 513, 547 (Del. 2014); Saavedra v. State, 225 A.3d 364, 384-385 (Del. 2020). 111 Def. App. 212, 578-580, 632-633.

19 substance either directly or through another person. Possession may be sole or joint. . . Possession is proven if you find beyond a reasonable doubt defendant had actual or constructive possession, either alone or jointly with others.112

In this case, the evidence presented at trial was that Dunfee had 650 bags of

heroin in his possession during the car stop, and Tingle had $2,000 in his

possession of suspected drug proceeds. That drug dealers often work in pairs, with

one holding the money and the other the drugs. In the trunk of Tingle’s car, parked

at the Hillside residence garage, another 650 bags of heroin were found. The vast

majority of the heroin in Tingle’s locked car was the same type of heroin found on

Dunfee during the car stop. Tingle’s car parked in Dunfee’s garage was locked

and Tingle was the only person that had a key to his car. Tingle, therefore, was the

only person that had access to the trunk of the locked car.

There was a plethora of evidence presented at trial that Tingle was engaged

in drug dealing and that he had constructive possession of the drugs from the car

stop and the drugs in his car.

Any error in failing to correct the record was harmless. Tingle has not

suffered actual prejudice as a result thereof. This claim is without merit.

112 Def. App. 632-633.

20 Claim III: Failure to Request Litigation Packets for the Lab Reports

Tingle contends that trial counsel was ineffective for failing to obtain the

underlying notes and supporting documentation (“litigation packets”) that

supported the reports by the forensic chemists Kyle Brown and Mollie Mares, both

employees of NMS Labs, that determined the substances seized were in fact

heroin. Tingle claims that he suffered prejudice because if a continuance was

granted to allow him the opportunity to obtain the litigation packets, Tingle would

have had time to obtain new counsel and if the continuance was not granted, he

would have had an appellate issue that somehow would have led to a reversal of

his conviction.

The heroin seized by Detective Radcliffe during the car stop was tested by

forensic chemist Kyle Brown.113 The heroin seized by the Wilmington Police

Department during the search of Tingle’s Audi was tested by forensic chemist

Mollie Mares.114 Mollie Mares’ report was turned over to trial counsel on

September 18, 2017.115 Kyle Brown’s report was turned over to trial counsel on

December 1, 2017.116 Trial counsel did not request the litigation packet for either

report.

113 Def. App. 662-663. 114 Def. App. 664-666. 115 Def. App. 192. 116 Def. App. 193.

21 Trial counsel did file a motion to suppress Kyle Brown’s report due to its

late submission to the defense.117 During the hearing on the suppression motion,

trial counsel represented that had the lab report been produced in a timely manner,

Tingle may have sought an independent review of the determination that the

substance examined was indeed heroin.118 Trial counsel then conceded that in his

experience, with the exception of the problems in the Medical Examiner’s Officer

which have now been rectified, he was not aware of the existence of any matter in

which a lab report was found to be in error in determining that the substance was

heroin.119 The following exchange then occurred:

COURT: . . . To your knowledge, is it standard procedure to have independent review of those lab tests?

TRIAL COUNSEL: In my experience, it is not, Your Honor.

COURT: All right. And, also, in your experience and to your knowledge, with the exception of the problems in the Medical Examiner’s Officer, which now have been rectified, has there ever been a finding that those lab reports were inaccurate?

TRIAL COUNSEL: In my direct experience and knowledge, no, Your Honor.120

In denying the suppression motion, the Court stated that there was no actual

prejudice to Tingle for the late submission of the lab report as it was unlikely that

117 Def. App. 124-126. 118 Def. App. 189-190. 119 Def. App. 190-191. 120 Def. App. 191.

22 any opposing expert would have been retained to determine whether the substance

was indeed heroin. There was no suggestion that there was any possibility of error

on the part of the state medical examiner. And, of course, once the evidence is

admitted, the medical examiner witness would be subject to cross-examination.121

Tingle relies on Oliver v. State,122 in support of his position that not

requesting the litigation packet was deficient because the trial would have been

continued, or if the trial was not continued, the convictions would be reversed on

appeal. In Oliver, however, the defendant specifically identified how the State’s

discovery violation of the late production of the forensic chemist’s notes caused

actual prejudice.123 In Oliver, an additional chemist was also involved in the

testing and was not presented by the State as a witness and was not subject to

cross-examination. The defendant was not provided with the opportunity to

investigate that second chemist’s actions and reputation. The defendant also

identified the type of expert he might have hired and the data on which the expert

might have opined.124

That is not the situation presented here. In this case, the forensic chemists

involved in the testing of the drugs at issue and the preparation of their respective

findings testified as witnesses at trial and were subject to cross-examination. There

121 Def. App. 195. 122 Oliver v. State, 60 A.3d 1093 (Del. 2013). 123 See, Oliver v. State, 60 A.3d 1093, 1098-99 (Del. 2013). 124 Id.

23 was nothing in their reports that raised any possible issues of any irregularities. It

is not standard procedure to hire an expert to independently review the lab results

and there was no showing of any actual prejudice that resulted in not having done

so here.125

Trial counsel was not deficient in failing to request the litigation package for

the lab reports determining that the substances were heroin, when, in counsel’s

experience, the lab reports were never found to be inaccurate. Trial counsel is not

required to engage in an exercise in futility merely to buy more time or to create an

appellate issue. Also, there is no actual prejudice as a result thereof because even

if the litigation packet had been obtained, it was extremely unlikely that an expert

would have been retained to review the report, and even more unlikely that the lab

results would be deemed inaccurate in any respect.

Moreover, in this case, the defense strategy was to deny that Tingle had

anything to do with the drugs seized by law enforcement. Tingle had elected an

“all or nothing” defense strategy.126 The defense strategy was that Tingle was in no

way responsible for any of the contraband that had been located and connected to

him through police investigations.127 Here, the defense strategy was not to claim

that the substances seized were not, in fact, heroin but instead to distance Tingle

125 See, Def. App. 191, 195. 126 Trial Counsel Affidavit in response to Rule 61 motion, at ¶¶ 13-15. 127 Id.

24 from the drugs.128 The defense strategy was to claim that Dunfee was the drug

dealer and Tingle had nothing to do with the drugs.

Trial counsel was not deficient in failing to request the litigation packet for

the lab reports determining the substance seized was heroin. Moreover, Tingle did

not sustain his burden of establishing any actual prejudice as a result thereof. This

claim is without merit.

Claim IV: Failure to Meaningfully Challenge the State’s Drug Dealing Expert

Tingle contends that trial counsel was ineffective for failing to challenge the

State’s drug dealing expert as to his conclusions pertaining to Tingle’s and

Dunfee’s respective roles.

Trial counsel filed a motion to suppress Detective Stewart’s testimony, the

State’s drug dealing expert, due to the late identification of this witness.129 The

Court denied trial counsel’s motion to exclude Detective Stewart’s testimony but

ruled it could not be cumulative or duplicative of the testimony of the investigating

officers.130

During Detective Stewart’s direct examination, he was asked to distinguish

between drug dealers and drug users.131 Trial counsel objected to this line of

128 Id. 129 Def. App. 132-134. 130 Def. App. 197-198. 131 Def. App. 433.

25 questioning as outside the scope of his disclosed testimony.132 The Court agreed

with the State that it was standard testimony of a drug expert to distinguish

between dealers and users.133

Detective Stewart testified that it was his opinion, based on the totality of the

circumstances, that Tingle was engaged in drug dealing.134 He was not asked

specifically if Dunfee was also a drug dealer. The State asked Detective Stewart if

he was to focus just on the small amount of heroin found in Dunfee’s bedroom,

would he be able to form an opinion as to whether Dunfee was a drug user.

Detective Stewart responded that while it was possible that Dunfee was a drug

user, Detective Stewart was unable to form an opinion as to whether he was based

on the small amounts of heroin found in his bedroom.135

The Superior Court held that Detective Stewart was not exceeding the scope

of his disclosure by distinguishing between drug dealers and drug users. He

testified that Tingle was a drug dealer. He did not formulate any opinion as to

whether Dunfee was a drug user, a drug dealer, or both.

Trial counsel was not deficient in his handling of the examination of

Detective Stewart. He first sought to have Detective Stewart’s testimony excluded

in its entirety due to the late identification of him as a witness, and when he did not

132 Def. App. 434. 133 Def. App. 434. 134 Def. App. 454-456. 135 Def. App. 457.

26 prevail on that motion, he conducted an extensive cross-examination and did what

he could to elicit favorable testimony.136

Trial counsel was not deficient in this regard. Moreover, Tingle cannot

sustain his burden to establish actual prejudice as a result of the admission of this

testimony. This claim is without merit.

Claims V and VI: Failing to Substantively Meet with Tingle

In Claim V and VI, Tingle contends that trial counsel was ineffective by

failing to have any meaningful discussion with him about his testimony prior to

taking the stand.

Tingle’s trial counsel advised that Tingle’s trial testimony was not reviewed

at length prior to his taking the stand because it was clear that Tingle would be

taking the same position that he had taken at all stages of pretrial proceedings: that

he was in no way responsible for any of the contraband that had been located and

connected to him through police investigations.137 A review of Tingle’s trial

testimony reveals that trial counsel conducted a full and thorough direct

examination that clearly and cogently laid out Tingle’s version of the case.138 At

all stages of trial, trial counsel represented Tingle as vigorously as possible while

136 Def. App. 458-477. 137 Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶¶ 15, 19. 138 Def. App. 515-542.

27 trying to implement Tingle’s chosen “all or nothing” defense.139 In fact, through

the advocacy of Tingle’s trial counsel, Tingle was found not guilty of PFDCF, a

serious charge.

The State’s theory at trial was that Tingle was a drug dealer. Dunfee was his

employee, the rental car and drug paraphernalia were tools of his trade, the drugs

were the product he was selling, the cash was his profit, and the firearm was his

security.140

As to Claim V, Tingle claims that his trial counsel’s failure to anticipate and

respond to the hearsay objection as to the ownership of the gun at issue removed a

viable defense from the jury’s consideration and that his subsequent conviction for

PFBPP was directly linked to this testimony.

Tingle is incorrect in this regard. The hearsay objection did not impact

Tingle’s testimony in any respect, and it did not remove “a viable defense from the

jury’s consideration.” On direct examination, Tingle started to inject some hearsay

testimony about what Dunfee told him about the gun at issue.141 The hearsay

objection was addressed.142 Tingle’s trial counsel then elicited the same testimony

regarding the ownership of the gun from Tingle without any hearsay issues. Tingle

testified on direct examination that he had never previously seen the firearm in

139 Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶ 19. 140 Def. App. 575-576. 141 Def. App. 531-532. 142 Def. App. 534-535.

28 Dunfee’s bedroom until Dunfee showed it to him. That was the first time he ever

saw it. And that Tingle had no knowledge of the firearm.143

The record reflects that Tingle’s position on this issue was not impacted in

any way by the hearsay objection and thereafter rephrasing of the question to elicit

the same testimony.

In Claim VI, Tingle contends that his counsel was ineffective and that he

suffered prejudice by trial counsel failing to prevent the admission of his prior

convictions under Delaware Uniform Rules of Evidence (“D.R.E.”) 609.

Following the close of the State’s case, and before Tingle made the decision

as to whether or not he wanted to testify, there was a hearing on the admissibility

of Tingle’s multiple felony convictions.144 The State outlined Tingle’s prior

convictions that it was seeking to introduce at trial under D.R.E. 609 should Tingle

decide to testify. The State advised that it was seeking to introduce his convictions

within the last ten years of: Burglary Second Degree- a crime of dishonesty,

PFDCF, Conspiracy in the Second Degree and Maintaining a Vehicle. It was also

seeking to introduce older crimes of dishonesty: convictions of burglary second

degree from 1996, attempted theft and felony theft from 1996, receiving stolen

property felony conviction from 1996, and attempted theft misdemeanor from

1996.

143 Def. App. 535. 144 Def. App. 483-487.

29 Tingle’s trial counsel objected to the admissibility of the crimes of

dishonesty that did not fall into the ten-year window as being unduly prejudicial.145

The Court agreed with Tingle’s trial counsel and held that the crimes of dishonesty

more than ten years old would not be admissible at trial.146

Tingle’s trial counsel represented that he had met with Tingle on numerous

occasions and has discussed with him the consequences that his criminal record

may have on his trial testimony, should he elect to testify at trial.147 That whatever

decision Tingle made as to whether or not to testify, it was being made on a

knowing, voluntary and intelligent basis, and that he was fully advised of his

rights.148

Prior to Tingle making his decision, the Court also advised Tingle that if he

chose to testify the jury was going to hear about his crimes of dishonesty.149 The

Court then engaged in a colloquy with Tingle during which Tingle advised that he

knew the jury was going to hear about his prior crimes of honesty. That he had

decided to testify in his own defense. That he had discussed this with decision

with his attorney and that he, alone, was making this decision for himself.150

145 Def. App. 486. 146 Def. App. 486-487. 147 Def. App. 485-486. 148 Def. App. 485-486. 149 Def. App. 487. 150 Def. App.487-489.

30 In this case, after a discussion about his prior convictions and a colloquy

with the Court, Tingle made the decision to waive his right to remain silent and

chose to testify. The Court found Tingle’s decision to be knowing, intelligent and

voluntary.151 Prior to Tingle testifying, the State reiterated that all four of Tingle’s

felony convictions within the last ten years were admissible for impeachment.152

Tingle was aware that all four of his felony convictions within the last ten

years were admissible for impeachment at trial. The State reiterated that fact

immediately before Tingle took the stand to testify.

In order to prevail on a claim of ineffective assistance of counsel, the

defendant must demonstrate that, but for counsel’s alleged error, he would have

been acquitted.153 If substantial evidence exists that supports the defendant’s

conviction, the defendant’s claim is undermined.154

In this case, to the extent there was any error in the admission of his prior

felony convictions, any such error was harmless. The fact that he was previously

convicted of PFDCF did not prejudice the jury in this case because the jury

acquitted him of the PFDCF charge in this case. In this case, substantial evidence

existed that supported the verdict in this case on all the charges.

151 Def. App. 488. 152 Def. App. 488-489. 153 Couch v. State, 945 A.2d 593 (Del. 2008). 154 Id.

31 Trial counsel was not deficient and based on the abundance of evidence

presented at trial, Tingle cannot meet his burden to show actual prejudice as a

result thereof. This claim is without merit.

Claim VII: Trial Counsel’s Relationship was Broken/Social Media Postings

Tingle claims that he suffered prejudice by having trial counsel represent

him after their relationship was irretrievably broken.

Although Tingle contends that there was a complete breakdown of the

attorney-client relationship, the record does not reflect a breakdown. Trial counsel

represents that at all stages of the trial, counsel represented Tingle as vigorously as

possible while trying to implement Tingle’s chosen “all or nothing” defense.155

Trial counsel represents that during conversations and in correspondence to

Tingle, counsel repeatedly explained the nature of the evidence against Tingle, and

the possible penalties that were entailed should he be convicted at trial.156 Trial

counsel represents that Tingle actively participated in all stages of trial and was

given every opportunity to request that counsel further probe witnesses on cross-

examination. Tingle took advantage of this at times and at other times declined to

do so.157

155 Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶ 19. 156 Id. at ¶ 10. 157 Id. at ¶ 20.

32 The record reflects that defense counsel consistently, vigorously and

diligently defended the charges against Tingle. Defense counsel made tactical

decisions regarding evidentiary issues, vigorously cross-examined the State’s

witnesses, and vigorously defended Tingle.

Prior to trial, Tingle was offered a plea with a sentence recommendation of

27 years of prison time, 25 years of which was mandatory. Tingle rejected the plea

offer and proceeded to trial. Through trial counsel’s advocacy, Tingle was found

not guilty of PFDCF, and ultimately sentenced to 20 years of unsuspended prison

time, 17 years of which was mandatory. Tingle achieved a better result at trial than

the best plea offered by the State. Whatever tactical and strategic decisions resulted

in the verdict, when reviewing the entire proceeding, the record reflects counsel’s

overall performance as being active, diligent, thorough and capable advocacy.

Tingle’s disgruntlement with his trial counsel appears to be driven by his

disappointment with the trial result. The jury did not accept his “all or nothing”

defense that he was just at the wrong place at the wrong time.

It is difficult to establish an ineffective assistance of counsel claim when

counsel’s overall performance indicates active and capable advocacy.158

158 Harrington v. Richter, 131 S.Ct. 770, 791 (2011).

33 Specifically, Tingle claims that his expression of dissatisfaction on the

morning the trial was set to begin, along with trial counsel’s handling of Dunfee’s

affidavit, and trial counsel’s private social media posts establish that their

relationship was irretrievably broken.

As to Tingle’s comments on the morning the trial was scheduled to begin,

Tingle expressed dissatisfaction with his trial counsel’s inability to give “definite

answers to yes or no questions” about what might occur during the trial.159 Trial

counsel explained that “with certain questions about how things will be done at

trial, there is not a way to answer it 100 percent in the affirmative or negative.

Largely, it is dependent on what the evidence and testimony on record reveals that

will inform certain decisions that are made.160

On direct appeal, Tingle claimed that the Superior Court erred when it

denied his 11th-hour request for a continuance so that he could fire his privately

retained counsel to hire another lawyer.161 The Delaware Supreme Court found no

merit to Tingle’s claims and affirmed the Superior Court’s judgment.

The Delaware Supreme Court determined that the denial of a continuance

for change of counsel on the eve of trial is not an abuse of discretion when 1) there

had been no previous complaint about counsel; 2) the defendant had a prior

159 Def. App. 201-204. 160 Def. App. 202-203. 161 Tingle v. State, 2019 WL 2079060 (Del.).

34 opportunity to obtain substitute counsel; and 3) obtaining substitute counsel was

uncertain and appeared to be a dilatory tactic.162

The Delaware Supreme Court held that, in this case, Tingle had not

expressed any prior dissatisfaction with trial counsel until the day of trial. Tingle

had the opportunity to replace his privately retained counsel seven months before

trial, and a continuance on the day of trial would have unnecessarily delayed the

trial.163 Tingle did not indicate a breakdown in communication or irreconcilable

conflicts with trial counsel. He never stated that he wanted to fire his counsel and

proceed pro se.

Tingle hired trial counsel in May 2017, seven months before trial.164 He had

the means to hire his attorney, he also had the means to fire his attorney and hire a

new one. Tingle provides no explanation as to why, if the relationship with trial

counsel was genuinely irretrievably broken, he had not replaced him prior to trial.

Turning to the issue of Dunfee’s affidavit, Tingle argued that Dunfee’s

affidavit and trial counsel’s failure to attempt to introduce it at trial, was fatal to

their relationship.

In September 2017, after this case was indicted, the State met with Dunfee.

Dunfee admitted to being a heroin user, and said he met Tingle because Tingle sold

162 Tingle v. State, 2019 WL 2079060, *3 (Del.). 163 Id. 164 Def. App. 39.

35 drugs to him. The relationship escalated to Dunfee becoming Tingle’s employee

and Tingle giving Dunfee drugs to move for him. Dunfee would go with Tingle to

Philadelphia, where Tingle would get $17,000 worth of heroin every other week to

distribute to people in Delaware.165 Dunfee also talked about the Desert Eagle

firearm. He said the gun was Tingle’s and that Tingle gave it to him to keep safe.

Dunfee stated that he thought he was supposed to be the coverup for the gun. The

one to take the rap and take the gun charge.166

In October 2017, the State received an email from trial counsel that attached

an affidavit from Dunfee. The affidavit was not dated and directly contradicted the

recorded statement given to law enforcement.167 In the affidavit from Dunfee, he

admitted that the drugs at issue belonged to him, not Tingle.168 This affidavit, and

whether trial counsel would attempt to admit it, Tingle claims were “fatal” to the

relationship between Tingle and his attorney.169

Trial counsel represented that he did not attempt to admit the affidavit

because it directly contradicted Dunfee’s previously recorded statement and would

have further served to undermine Tingle’s goal of seeking a not guilty verdict as to

165 See, Def. App. 770-771. 166 See, Def. App. 770-771. 167 State’s supplemental response to Rule 61 motion dated June 17, 2022, * 1-2. 168 Tingle’s Amended Motion for Postconviction Relief, at *113. 169 Id.

36 all counts.170 Trial counsel had discussions with Tingle about Dunfee’s affidavit

prior to trial.171

In addition to tactical considerations that it would be better not to use the

affidavit, trial counsel also had serious concerns that offering the affidavit would

be a violation of Delaware Lawyers’ Rule of Professional Conduct 3.3.(a)(3),

which mandates that counsel not offer testimony that the lawyer knows to be

false.172

Trial counsel made the strategic choice not to seek to admit the affidavit.173

Great weight and deference are given to tactical decisions by the trial attorney.

There is a strong presumption that counsel’s conduct was reasonable and

constituted sound trial strategy.174 Trial counsel must be given wide latitude in

making tactical decisions.175 Defense counsel was not ineffective in his tactical

decision in this regard.

In addition, it appears that the affidavit was inadmissible hearsay that could

not be introduced at trial. Dunfee, an indicted co-defendant, was scheduled for

170 Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶¶ 17-18. 171 Id. at ¶ 18. 172 Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 173 Id. 174 Harrington v. Richter, 131 S.Ct. 770 (2011); Outten v. State, 720 A.2d 547, 557 (Del. 1998); Strickland v. Washington, 466 U.S. 668, 689 (1984). 175 Id.

37 trial on the same day as Tingle. However, he failed to appear on the trial date and

a capias was issued.176

Despite Tingle’s disappointment that Dunfee’s affidavit would not be used

at trial, the record does not reflect that there was a complete breakdown in the

attorney-client relationship as a result thereof.

Finally, Tingle complains about trial counsel’s social media posts.177 Tingle

does not argue that trial counsel’s social media posts led to Strickland prejudice,178

but argues that it is proof of a breakdown in the attorney-client relationship.

There is no denying, and trial counsel does not deny, that the social media

posts were a “lapse in judgment.” However, trial counsel explains that these three

posts were made on his private, not public, social media page and only accessible

to a limited audience.179 While there is no question that these social media posts

are inappropriate, they do not appear to be violative of the Delaware Lawyers’

Rules of Professional Conduct or ABA standards because there is no evidence that

they had a substantial likelihood of prejudicing the trial.180

176 Def. App. 185-186. 177 See, Def. App. 955-957. 178 See, Rule 61 Counsel’s June 17, 2022, Supplemental Submission, at *9. 179 Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 180 See, DLRPC R. 3.6(a) and ABA Standards for Criminal Justice Defense Function R. 4-1.4 (3d ed. 1993).

38 Given the limited audience, there is no evidence that the posts had a

substantial likelihood of prejudicing the trial. Further, there were no specific

details mentioned. The posts did not contain the defendant’s name, the charges,

the court nor the county where the case was being tried. 181

Tingle does not contend he was prejudiced at trial by these posts. He just

references these posts as a reflection of the breakdown in communication.

The Court does not agree that the social media posts reflect a breakdown in

communication. The record reflects to the contrary. The record reflects that trial

counsel did provide active, diligent, thorough, and capable advocacy. The social

media posts reflect that trial counsel recognized that the evidence against his client

was overwhelming and that his client was unlikely to be successful at trial.182 Of

course, social media posts are not the forum to privately express frustrations.

Whether trial counsel’s remarks should result in an extra-judicial disciplinary

181 Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2. 182 There are a total of three posts.

The first, dated January 5, 2018 states: “Day two of rearranging the deck chairs of the Titanic, i.e. the case I’m trying.” Def. App. 955.

The second, dated January 9, 2018 states: “Well, we closed and charged the jury in the case I’ve been in trial with since last Wednesday. The jury left the court to deliberate around twenty after twelve this afternoon. They’re still out. I’m a little surprised that they’re taking this long. Who knows, maybe that means I’ve won on a charge or two.” Def. App. 956.

The third, dated January 9, 2018 states: “Update, jury was out 3 hours deliberating. Returned verdicts of guilty on all but two counts.” Def. App. 957.

39 finding is not the issue presently to be decided in this Rule 61 motion. This Rule

61 motion is not the appropriate venue to redress such grievances.

Trial counsel was not deficient in his representation of Tingle and Tingle has

failed to establish actual prejudice as a result of any alleged deficiency.

CONCLUSION

Tingle has failed to meet his burden to establish that trial counsel’s conduct

was deficient, and he has failed to establish actual prejudice as a result of any

alleged deficiency. Tingle’s ineffective assistance of counsel claims are without

merit.

For all of the foregoing reasons, Tingle’s Motion for Postconviction Relief

should be DENIED.

IT IS SO RECOMMENDED.

/s/ Lynne M. Parker Commissioner Lynne M. Parker

cc: Prothonotary Marc Wienkowitz, Esquire