State of Delaware v. Sullins.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE v. JEROME SULLINS, Defendant, ) ) ) ) ) ) ) ) I.D. No. 0405017780 Supreme Court No. 216, 2008 OPINION ON REMAND1 Appearances: Jerome Sullins, Pro Se, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaware, 19977 James T. Wakley, Esquire, Department of Justice, 820 N. French Street, Wilmington, Delaware, for the State. Judge John E. Babiarz, Jr. Date: April 20, 2009 1 The Delaware Supreme Court has not published its order remanding the case to this Court. The Order is attached to this opinion as an appendix. Sullins v. State Del. Supr., No. 216, 2008, (February 2, 2009). In April 2006, Jerome Sullins was convicted of a variety of drug offenses including trafficking in cocaine. He had previously been tried on the same charges, but that trial ended in a mistrial.2 Sullins conviction was affirmed by the Supreme Court3 and he thereafter filed a motion for post-conviction relief under Criminal Rule 61. He alleged ineffective assistance of counsel in several respects and legal error. The Court found his claim of legal error meritorious and vacated a conviction for possession of cocaine because it had merged into the trafficking conviction. In all other respects the motion was summarily denied.4 On appeal the Supreme Court affirmed this Court and refused to consider claims not made by Sullins in the Superior Court, but remanded the case for further consideration on one issue. The Supreme Court found that after considering Sullins two-and-a-half pages of argument in his opening brief and giving those arguments their: broadest reading he seems to contend that the search of his home by Wilmington police accompanied by probation officers, was illegal because officers did not independently determine the reliability of information 2 The remand order erroneously states that this Court granted the mistrial sua sponte, op.cit. at p.2. However, in its opinion affirming Sullins conviction, the Supreme Court specifically found that the mistrial was declared at Sullins urging which was a necessary predicate to the affirmance of this Court s granting a mistrial. Sullins v. State, infra at p.916. 3 Sullins v. State 930 A2d 911 (Del. 2007). 4 State v. Sullins, Del. Super, ID0405017780, Babiarz, J. (April 25, 2008). provided by the State Police Detectives confidential informant... 5 In support of that construction of Sullins motion and brief, the Supreme Court cited its decision in Culver v. State, decided August 5, 2008.6 It remanded the case to this Court to expand the record by obtaining affidavits of Sullins defense counsel in response to the specific allegation that counsel was ineffective for failing to file a motion to suppress based on an illegal warrantless search. 7 Sullins had different counsel for his first aborted trial and his second trial. Both have filed affidavits. Without reference to the expanded record, this Court notes that Culver, on which the Supreme Court relies in its remand, was not decided until over two years after Sullins s conviction and three years after his first trial. This Court cannot find that counsel was ineffective in not filing a motion to suppress evidence based on a Supreme Court decision not then in existence. Furthermore, nothing in Delaware jurisprudence foreshadowed Culver, and the decision itself had two dissenters. Thus there is no basis for concluding that counsel should have anticipated the Culver ruling. Logically, the Court s inquiry ends there. 5 Sullins v. State, De. Supr. No. 216, 2008 at p4. 6 956 A2d 5 (Del. 2008). 7 Sullins v. State, Del. Supr. No. 216, 2008 p6. However, for the sake of completeness, the Court must also note that the Culver ruling was not applicable in this case. In Culver the Supreme Court held that probation officers must independently assess the reliability of information provided by police officers before conduction a warrantless search of a probationer s home. 8 Here a police officer listened in on a conversation between a confidential informant and the defendant concerning a drug transaction.9 That information was turned over to Wilmington Police and officers of the Department of Probation and Parole as Sullins was on Level 3 probation at the time. The search conducted by Probation Officers was thus based on first hand information supplied by a police officer. The Culver ruling, even if it existed, was not violated. The conclusion reached in its opinion of April 25, 2008 remains unchanged. _________________________________ Judge John E. Babiarz, Jr. JEB,Jr./bjw Original to Prothonotary 8 Ap. Crt. P4 fn6. 9 Transcript, State v. Sullins, February 15, 2005, pp52-54.
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