State v. Tisinger

Superior Court of Delaware·Decided December 27, 2023·No. 1510007181·Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )

)

Plaintiff, )

)

)

v. ) Cr. ID. No. 1510007181 )

)

DOMINIQUE M. TISINGER, )

)

Defendant. )

Submitted: September 7, 2023 Decided: December 27, 2023

COMMISSIONER’S REPORT AND RECOMMENDATION THAT DEFENDANT’S MOTION FOR LEAVE TO AMEND MOTION FOR POSTCONVICTION RELIEF SHOULD BE GRANTED AND

AMENDED MOTION FOR POSTCONVICTION RELIEF SHOULD BE GRANTED

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

Natalie S. Woloshin, Esquire, Woloshin, Lynch & Associates, P.A, Attorney for Defendant Dominique M. Tisinger.

SALOMONE, Commissioner

This 27th day of December, 2023, upon consideration of Dominique M.

Tisinger’s (“Tisinger” or the “Defendant”) Amended Motion for Postconviction Relief, it appears to the Court as follows:

BACKGROUND AND PROCEDURAL HISTORY On October 12, 2015, Wilmington Police responded to a 911 call from a citizen who alleged that an armed man was following her and threatening her life. 1 The caller provided her location and the police responded to the scene.2 Upon interviewing the caller and another witness, the police learned that the subject was a black male wearing a black hooded jacket and white jeans and was walking with a white male on Lancaster Avenue.3 Police checked the surrounding area and observed the Defendant wearing clothing as described by the witness and walking with a white male on Lancaster Avenue.4 When the police pulled alongside the Defendant in a marked car, the Defendant immediately put his right hand into the right pocket of his jacket.5 The police ordered the Defendant to stop and show his

1 Commissioner’s Report and Recommendation, State v. Tisinger, ID No. 1510007181, Superior Court Criminal Docket Index No. 62 (hereinafter “D.I. __”)(Del. Super. Feb. 1, 2019). 2 Id. at 2.

3 Id.

4 Id.

5 Id. at 3.

hands, whereupon he immediately fled.6 As he ran away, one of the officers on the scene, Officer Pruitt, observed the Defendant remove a gun from his person and throw it to the ground.7 Officer Pruitt was within 10 feet of the Defendant when he threw away the gun.8 Other nearby officers apprehended the Defendant shortly thereafter.9 After his arrest, the Defendant attempted to escape from the custody of another officer, Officer Reddick, while at the hospital for treatment.10 On June 7, 2016, after a bench trial, the Court found Tisinger guilty of Possession of a Firearm by a Person Prohibited (“PFBPP”), Possession of Ammunition by a Person Prohibited (“PABPP”), Carrying a Concealed Deadly Weapon (“CCDW”), Resisting Arrest, and Attempted Escape Third Degree.11 On October 7, 2016, Tisinger was sentenced to ten years and six months of unsuspended Level V incarceration, followed by decreasing levels of probation.12

6 Id.

7 Id.

8 Id.

9 Id.

10 Id.

11 D.I. 28. Although Tisinger was convicted of Attempted Escape Third Degree, the State entered a nolle prosequi on this conviction prior to sentencing for the reasons discussed herein. 12 Defendant was sentenced to ten years at supervision Level V on the PFBPP offense. For CCDW, he was sentenced to eight years at supervision Level V, suspended for eight years at Level IV DOC discretion, suspended after six months at supervision Level IV, followed by probation. For PABPP, Defendant was sentenced to five years at supervision Level V, suspended to for two years at supervision Level III. For Resisting Arrest, Defendant was sentenced to one year and five days

On June 15, 2016, Tisinger filed a pro se Motion for Judgment of Acquittal or Alternatively a New Trial (“Acquittal Motion”) arguing there was insufficient evidence to support the guilty verdicts.13 Shortly thereafter, on July 25, 2016, Defendant filed a pro se Motion for Evidentiary Hearing and Appointment of Counsel in connection with his Acquittal Motion.14 In his July 25th Motion, Defendant requested (i) an evidentiary hearing because the DNA evidence found on the gun did not match his DNA and (ii) appointment of counsel due to alleged conflicts of interest and claims of ineffective assistance of counsel.15 On August 15, 2016, in support of his Acquittal Motion, Defendant sent a letter directly to the Court presenting newly discovered evidence in his case relating to charges brought against one of the police officers who had testified at trial.16 On August 22, 2016, the Court sent a letter to trial counsel and the State advising that it would not consider the Defendant’s pro se submissions in accordance with Superior Court Criminal Rule

at supervision Level V, suspended for one year at supervision Level I. These sentences of confinement run consecutively. Sentence Order, State v. Tisinger, ID No. 1510007181, D.I. 39 (Del. Super. Oct. 7, 2016). In addition to the foregoing, Defendant was sentenced to six months at supervision Level V for violating his probation on an original charge of drug dealing plus an aggravated felony. See Violation of Probation Sentence Order, State v. Tisinger, ID No. 1309007882, D.I. 16 (Del. Super. Oct. 7, 2016). 13 D.I. 30.

14 D.I. 32.

15 Id.

16 D.I. 33.

47 unless the motions were endorsed by his trial counsel.17 Counsel declined to endorse those submissions as she believed them to be without merit.18 Both motions were denied by the Court on September 15, 2016.19 After sentencing, Defendant filed a pro se Motion for Modification of Sentence on January 6, 2017, which the Court denied on March 7, 2017.20 On November 29, 2016, Tisinger filed a pro se Notice of Appeal to the Delaware Supreme Court, but that appeal was dismissed for failure to file within 30 days after imposition of his sentence as required by Delaware Supreme Court Rule 6(a)(iii).21 Defendant filed a pro se Motion for Postconviction Relief on September 25, 2017,22 which was referred to a Commissioner for proposed findings of fact and conclusions of law in accordance with 10 Del. C. § 512(b) and Superior Court

17 D.I. 34. Under Superior Court Criminal Rule 47, “[t]he court will not consider pro se applications by defendants who are represented by counsel unless the defendant has been granted permission to participate with counsel in the defense.” At the time the Defendant submitted his motions, he was still represented by trial counsel and the Court had not granted him permission to participate with trial counsel in his defense. 18 D.I. 37.

19 D.I. 38.

20 D.I. 41, 43-44. Although the Court denied Defendant’s Motion for Modification of Sentence, the Court filed a Corrected Sentence Order on March 7, 2017. Id. 21 D.I. 45. See Tisinger v. State, 160 A.3d 1134, 2017 WL 1422624, at *1 (Del. Apr. 20, 2017)(TABLE).

22 D.I. 46.

Criminal Rule 62.23 After protracted briefing, Defendant filed a pro se Motion for Default Judgment on October 10, 2018.24 The Commissioner issued his Report and Recommendation on February 1, 2019, advising the Court to deny Defendant’s Motion for Postconviction Relief, including Defendant’s ineffective assistance of counsel claims, and to deny his Motion for Default Judgment (the “Commissioner’s Report”).25 Defendant did not file any objections to the Commissioner’s Report within the ten days required under Rule 62(a)(5)(iii). On April 2, 2019, the Court adopted in toto the findings of fact and recommendations set forth in the Commissioner’s Report.26 On May 9, 2019, Defendant filed a Petition for a Writ of Habeas Corpus, asserting certain of the claims previously raised in his Motion for Postconviction Relief.27 The Petition was denied by the Court on May 20, 2019 because the claims were duplicative.28

23 D.I. 48. During the time the Motion for Postconviction Relief was pending, the assigned Commissioner was appointed as a Judge in the Court of Common Pleas but sat by designation as a Commissioner of the Superior Court for purposes of the Motion for Postconviction Relief. 24 D.I. 58. Defendant also filed a Reply to the State and Defense Counsel’s supplemental submissions on November 5, 2018. D.I. 61.

25 D.I. 62.

26 D.I. 64.

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