State v. Buchanan, ID 0801031784 (Del. Super. 4/16/2010)

• Decision Date: 16 April 2010
• Docket Number: ID 0803017116.,ID 0801031784.
• Parties: State of Delaware, v. David J. Buchanan.
• Court: Delaware Superior Court

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State of Delaware,
v.
David J. Buchanan. ID 0801031784. ID 0803017116. Superior Court of Delaware, Sussex County. Decided: April 16, 2010.

David Hume, IV, Esquire, Deputy Attorney General, 114 East Market Street, Georgetown, DE 19947.

N440 STATE MAIL, David Buchanan, SBI: 002, Sussex Correctional Institution, P.O. Box 500, Georgetown, DE 19947.

RICHARD F. STOKES, Judge.

Dear Mr. Hume and Mr. Buchanan:

Mr. Buchanan, the defendant, was convicted by a jury on September 24, 2008 for Resisting Arrest, Criminal Contempt, three counts of Possession of a Deadly Weapon and Ammunition by a Person Prohibited, and two counts of Carrying a Concealed Deadly Weapon. Following direct appeal to the Supreme Court, the foregoing convictions were affirmed. A Burglary in the Third Degree conviction, however, was reversed.

Mr. Buchanan has filed a motion for return of property under Superior Court Criminal Rule 41(e).¹ Mr. Buchanan seeks the return or value of all real and personal property which he claims were taken by his former wife and her present husband, Barbara and David

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Richards, in conjunction with the State Police. He claims this property includes "firearm collection, computers, phones, documents, livestock, real estate deeds, land use leases, electronic stored material, house contents, food, vehicles, seed grain, grain contracts, business plans, checks, tools, machinery farm chemicals, fuel and personal property." He claims the items were obtained illegally and as a result of trespass or violations of alleged Bankruptcy Court orders. The motion attacks the jurisdiction of the Family Court which ejected him from marital property and ordered its sale. A background of defendant's pattern of bad faith litigation in the Supreme Court, the Chancery Court, the Superior Court and the Bankruptcy Court is discussed in Buchanan v. Wallace, and this decision is incorporated herein.²

Rule 41(e) provides that "A person aggrieved by the deprivation of property seized by the police may move the court for the return of the property on the ground that such person is entitled to lawful possession of the property." The Superior Court may decide such a motion even after pending charges are dismissed.³ However, a motion must be filed within a year from the sentencing date.⁴

Upon review of the record, Mr. Buchanan's motion was filed on Tuesday, December 15, 2009. He was sentenced on Friday, December 12, 2008 and, therefore, his motion is

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time-barred. Although the Burglary in the Third Degree conviction was reversed, the other convictions in the December 12, 2008 sentencing order were affirmed. The December 12, 2008 sentencing order was simply modified by deleting one charge on October 2, 2009. The sentencing date is the benchmark for the one-year period for applications to return property. Other possible time frames were considered but not adopted by the Supreme Court.⁵

Not only is Mr. Buchanan's petition late but it would not have merit upon review of the trial record. The convictions arise from events on January 26, 2008 and March 13, 2008. In January, Mr. Buchanan was arrested at his former marital home where he was not supposed to be. Later, the Richards were attempting to get the property ready for sale. They found a shotgun and ammunition hidden in the basement. Before then, David Richards found 13 firearms, ammunition, and a cross bow. These items were given to the police thereafter.

On March 13, 2008, Mr. Buchanan was prohibited from possessing firearms by a Family Court Protection from Abuse Order. While driving, he was stopped because his license was suspended or revoked. The police recovered a .45 caliber handgun, a .22 caliber handgun, and .45 caliber ammunition. A suppression hearing was held prior to trial, and defendant's claim that the police lacked a proper basis to stop and seize the weapons was denied.

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