State v. Lindsey
| Decision Date | 16 March 2023 |
| Docket Number | 1708006225,1708003578 |
| Parties | STATE OF DELAWARE v. MICHAEL J. LINDSEY, Defendant |
| Court | Delaware Superior Court |
Submitted: December 6 2022
Erika R. Flaschner, Deputy Attorney General
John S. Malik, Esquire
Mr Michael J. Lindsey, pro se
ORDER DENYING POSTCONVICTION RELIEF AND GRANTING COUNSEL'S MOTION TO WITHDRAW
Upon consideration of Defendant Michael J. Lindsey's Motion for Postconviction Relief (D.I. 44)[1], his several amendments and supplements thereto (D.I. 45, 47-48, 66, 68-69, 71, 78, 81)[2], the State's responses (D.I. 67, 80, 82), his postconviction counsel's Motions to Withdraw (D.I. 59-60, 77), the affidavit of his trial/direct appeal counsel (D.I. 65), and the record in this case, it appears to the Court that:
I. FACTUAL AND PROCEDURAL BACKGROUND
(1) On August 9, 2017, Wilmington police officers saw Michael Lindsey leaving the Star Pizza Shop at 30th and Market Streets. The police were in the area to take Mr. Lindsey into custody on a pending arrest warrant for an aggravated menacing incident that occurred four days earlier. And when he saw the police, he took off on foot. One officer chased Mr. Lindsey commanding him to stop.
(2) As he was running, Mr. Lindsey held his waistband. The officer chasing on foot could not tell whether Mr. Lindsey was pulling up his pants or trying to conceal a weapon. That officer closed to within six feet of Mr. Lindsey when Mr. Lindsey threw a gun with his left hand.
(3) Another WPD officer saw Mr. Lindsey running from the first. So, he drove his patrol car through a nearby alley in an effort to cut off Mr. Lindsey. When informed of Mr. Lindsey's actions, that second officer found the pistol Mr. Lindsey had tossed to the ground and secured it at the scene. That firearm was a loaded black Hi-Point nine-millimeter handgun. And once gathered, it was processed for DNA collection by a WPD Forensic Services Unit officer.
(4) Those DNA swabs were sent to the Delaware Department of Safety and Homeland Security's Division of Forensic Sciences where a DNA analyst compared the swabs taken from the gun to Mr. Lindsey's known DNA. The DNA swab collected from the trigger of the gun matched Mr. Lindsey's DNA profile exclusively. The analyst also determined that Mr. Lindsey was a major contributor to a mixed sample found on the gun's grip.
(5) A WPD detective was also assigned to investigate Mr. Lindsey's case- both the menacing crimes of August 5th that led to his wanted status and the August 9th flight that led to his arrest and the handgun's recovery. That detective wasn't present when Mr. Lindsey was arrested by patrol officers, but he did revisit the street scene five days after Mr. Lindsey's arrest. As part of his investigation, the detective checked the businesses close to the 30th and Market intersection to determine whether there were surveillance cameras that might have captured Mr. Lindsey's interaction with police.
(6) That detective discovered that the gas station connected to the Star Pizza had multiple security cameras that might have recorded Mr. Lindsey running from police. It was his experience that such systems usually stored video for 30 days. But when he visited, he learned the owners of the gas station had recently upgraded to a new system that stored video recordings for only 3 or 4 days and anything that might have been caught by their cameras on August 9th had already been overwritten.
(7) A few weeks after Mr. Lindsey's arrest, a Superior Court grand jury indicted him on twelve counts alleging Aggravated Menacing, two counts of Unlawful Imprisonment First Degree, three counts of Possession of a Firearm During the Commission of a Felony, two counts Possession of a Firearm by a Person Prohibited ("PFBPP"), two counts of Possession of Ammunition by a Person Prohibited ("PABPP"), Carrying a Concealed Deadly Weapon ("CCDW"), and Resisting Arrest.[3]
(8) With the agreement of the parties, the Court severed the Resisting Arrest, CCDW and one count each of the PFBPP and PABPP charges-that is, those crimes that occurred on August 9th. And all agreed trial of those August 9th offenses would commence first.[4]
(9) Following a two-day jury trial, Mr. Lindsey was convicted of PFBPP, PABPP, CCDW, and misdemeanor resisting arrest (as a lesser offense of the felony charged).[5] (10) Thereafter, the State moved to declare and sentence Mr. Lindsey as a habitual criminal offender under 11 Del. C. § 4214(d) and asked that that provision be applied to both his PFBPP and CCDW convictions.[6]
(11) Prior to sentencing, the parties reached a plea agreement that addressed Mr. Lindsey's severed and still-pending August 5th charges. That plea was entered the day Mr. Lindsey was set to be sentenced for the earlier trial convictions and thereunder: (i) Mr. Lindsey pleaded guilty to aggravated menacing; (ii) the State entered a nolle prosequi to the remaining open charges; (iii) Mr. Lindsey agreed that he was subject to habitual criminal sentencing under 11 Del. C. §§ 4214(a), (c), and (d), but the State agreed not to seek habitual sentencing for the aggravated menacing; and, (iv) the State agreed to cap its sentencing recommendation for all charges combined at 15 years of unsuspended prison time.[7] Through that plea agreement, the State also agreed to file an amended habitual criminal sentencing motion that sought application of § 4214(d) to only Mr. Lindsey's PFBPP sentence-dropping the CCDW count from its previously filed petition.[8] (12) The Court then held a hearing on the State's amended habitual criminal petition where Mr. Lindsey admitted he had incurred the requisite convictions to support his sentencing under 11 Del. C. § 4214(d).[9] After review of the State's petition and making the necessary findings, the Court granted the State's motion to sentence Mr. Lindsey's present PFBPP conviction under 11 Del. C. § 4214(d).[10]Mr. Lindsey was then sentenced to serve, inter alia, a 15-year term of unsuspended imprisonment-comprised, in part of a statutory minimum term of incarceration[11]and, in part, of a habitual criminal sentence[12]-followed by lower levels of supervision.[13]
(13) Mr. Lindsey filed a direct appeal to the Delaware Supreme Court. His convictions and sentence were affirmed.[14]
(14) Throughout all the trial, plea, sentencing, and appellate proceedings just outlined, Mr. Lindsey was represented by John S. Malik, Esquire.
II. MR. LINDSEY'S MOTION FOR POSTCONVICTION RELIEF
(15) Mr. Lindsey filed, pro se, the present Motion for Postconviction Relief[15] and a Motion for Appointment of Counsel.[16] The Court granted application for counsel[17] and Natalie S. Woloshin, Esquire, was appointed to represent Mr. Lindsey in his postconviction proceeding.
(16) Ms. Woloshin has now filed a Motion to Withdraw as Counsel.[18] In her motion, Ms. Woloshin reports that, after careful review of Mr. Lindsey's case, Mr. Lindsey's claims are so lacking in merit that she cannot ethically advocate for them; and further, that she is not aware of any other substantial grounds for relief.[19]
(17) Under this Court's Criminal Rule 61(e)(7):
If counsel considers the movant's claim to be so lacking in merit that counsel cannot ethically advocate it, and counsel is not aware of any other substantial ground for relief available to the movant, counsel may move to withdraw. The motion shall explain the factual and legal basis for counsel's opinion and shall give notice that the movant may file a response to the motion within 30 days of service of the motion upon the movant.[20]
(18) Ms. Woloshin provided Mr. Lindsey with a copy of her withdrawal motion (and amendment) and advised Mr. Lindsey of his ability under Rule 61(e)(7) to file a response thereto.[21] Mr. Lindsey has filed numerous supplements contesting Ms. Woloshin's motion and in the main championing his proposition that his PFBPP sentence was incorrectly enhanced by the Court's consideration of his predicate felony convictions as "violent felonies."[22] Mr. Lindsey's trial and appellate counsel, Mr. Malik, has filed an affidavit addressing Mr. Lindsey's postconviction claims.[23]And the State has filed its responses opposing Mr. Lindsey's postconviction motion.[24]
III. RULE 61'S PROCEDURAL REQUIREMENTS
(19) To evaluate Mr. Lindsey's postconviction claims, and to determine whether his latest counsel's motion to withdraw should be granted, the Court should be satisfied that Ms. Woloshin conducted a truly conscientious examination of the record and the law for claims that could arguably support Mr. Lindsey's Rule 61 motion. The Court should also conduct its own review of the record to determine whether Mr. Lindsey's Rule 61 motion is devoid of any, at least, arguable postconviction claims.[25]
(20) Delaware courts must consider Criminal Rule 61's procedural requirements before addressing any substantive issues.[26] The procedural bars of Rule 61 are "timeliness, repetitiveness, procedural default, and former adjudication."[27] Here, Mr. Lindsey's motion is timely; it was filed less than a year after his judgment of conviction became final.[28] This is Mr. Lindsey's first Rule 61 application. So, it's not repetitive.
(21) Rule 61(i)(3) states, too, that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows [c]ause for relief from the procedural default and . . . [p]rejudice from violation of the movant's rights."[29] Though this bar is inapplicable to allegations of ineffective assistance of counsel that, in all but the rarest of circumstances, couldn't have been raised on...
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