State of Delaware v. Hickman.
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SUPERIOR COURT OF THE STATE OF DELAW ARE E. SCOTT BRADLEY SUSSEX CO UNT Y COU RTHO USE JUDGE 1 The Circle, Suite 2 GEORGETOWN, DE 19947 April 14, 2009 Lester J. Hickman SBI No. James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, DE 19977 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901 Adam D. Gelof, Esquire Department of Justice 114 East Market Street Georgetown, DE 19947 RE: State of Delaware v. Lester J. Hickman Def. ID # 0104000979 Amended Memorandum Opinion - Motion for Postconviction Relief Dear Counsel and Mr. Hickman: I have revised the above-reference memorandum opinion to make it clear what the practice is in Sussex County regarding the waiver of a preliminary hearing. Very truly yours, E. Scott Bradley cc: Prothonotary s Office April 14, 2009 Lester J. Hickman SBI # James T. Vaughn Correctional Center 1181 Paddock Road Smyrna, DE 19977 RE: State of Delaware v. Lester J. Hickman Def. ID # 0104000979 Amended Memorandum Opinion - Motion for Postconviction Relief Date Submitted: February 23, 2009 Dear Mr. Hickman: This is my decision on your fourth motion for postconviction relief. The State of Delaware charged you by information with Trafficking in Cocaine, Possession with the Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, Conspiracy in the Second Degree, Possession of Cocaine, and Possession of Drug Paraphernalia on May 2, 2001. You were convicted of Trafficking in Cocaine, Possession with the Intent to Deliver Cocaine, Maintaining a Dwelling for Keeping Controlled Substances, and Possession of Drug Paraphernalia on August 30, 2001. The Supreme Court affirmed your convictions on June 7, 2002.1 You now argue, almost eight years after the information was filed against you, that the Superior Court lacked jurisdiction over you because you allegedly did not waive your right to (1) a preliminary hearing, and (2) be prosecuted by indictment. You were represented at trial by James E. Liguori, Esquire. The State was represented by Deputy Attorney General Adam D. 1 Hickman v. State, 801 A.2d 10, 2002 WL 1272154 (Del. June 7, 2002)(TABLE). 2 Gelof, Esquire. Liguori and Gelof submitted affidavits in response to your allegations. Given that your argument is not supported by the available records, I have concluded that there is no need to have an evidentiary hearing. Your argument that the Superior Court did not have jurisdiction over you is procedurally barred.2 You should have raised it before trial and on your direct appeal. You did not do either. Moreover, you also have not shown cause for relief from this procedural bar or prejudice from this alleged violation of your rights. Therefore, your argument is barred.3 Moreover, there is no merit to your argument. In general, offenses within the exclusive jurisdiction of the Superior Court must be prosecuted by indictment.4 However, offenses other than capital crimes may be prosecuted by information if the defendant waives his right to be prosecuted by indictment.5 The waiver may either be in writing or in open court.6 The purpose of a preliminary hearing is to determine if there is probable cause to arrest a defendant.7 Not having a preliminary hearing is not a jurisdictional issue.8 Since this is not a jurisdictional issue, your argument is without merit. Your argument is also not supported by the facts. Gelof and Liguori both stated in their 2 Superior Court Criminal Rule 61(i)(3). 3 Id. 4 Superior Court Criminal Rule 7(a). 5 Superior Court Criminal Rule 7(b). 6 Id. 7 State v. Bailey, 2004 WL 2914320 (Del. Super. Dec. 13, 2004). 8 State v. Lum, 2007 WL 1041415, at *6 (Del. Super. March 22, 2007), aff d , 941 A.2d 1018, 2007 WL 4442633 (Del. Dec. 20, 2007)(TABLE). 3 affidavits that you waived your right to a preliminary hearing and to be prosecuted by indictment. The record shows that you did waive your preliminary hearing in the Court of Common Pleas on April 12, 2001. The record contains the probable cause sheet from the Court of Common Pleas.9 The probable cause sheet states, Liguori, atty waived. The longstanding practice in Sussex County is for a defendant to waive both (1) his right to a preliminary hearing, and (2) his right to be prosecuted by indictment in exchange for a copy of the police report.10 Since the defendant has waived his right to be prosecuted by indictment as part of this exchange, the State may then proceed by information. That is exactly what happened here. CONCLUSION. Your fourth motion for postconviction relief is DENIED. IT IS SO ORDERED. Very truly yours, E. Scott Bradley cc: Prothonotary s Office Adam D. Gelof, Esquire James E. Liguori, Esquire 9 See Exhibit A. 10 In re Miller, 1995 WL 656783, at *2 (Del. Super. Oct. 11, 1995). 4 Exhibit A 5 6
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