Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:05-cv—OO654-JJF Document 3-3 Filed 10/O4/2005 Page1 0f4
L4. The first crsand raised by Defendant in his motion for
pos;—convic;ion relief ;s that I failed to object to his
sentencing as an habicnal offender cn che ground that his 1938
conviction was for Simple Possession rather than Possession with
Intent co DeLiver.
L5. Defendant is correct that his 1988 conviction appears co
have been for the lesser—included offense of Simple Possession
rather than Possession wich Intent to Deliver.6 I became
aware of the discrepancy between che indictment and actual
conviction——apparently for the first time-- upon review of the
Prothonotary's file on August 20, 2004 after che issue had been
raised in Defendant's Motion for Post—conviction Relief.7 g
' eeemeuww
16. During my routine case investigation during che case review
process in che instant case, I had previously determined that
Defendant would be eligible for sentencing·as an habitual
offender if convicted of a felony. Excluding the 1988 drug
conviction, Defendant had prior Delaware felony convictions for
6 Compare the Indictment and Sentencing Order in JIC
88004242DI. (copies attached hereto as Exhibits K and L).
7 The prosecutor apparently was likewise unaware of the
misdemeanor nature of the 1988 conviction as there were other
sufficient felony convictions which could cited in the August,
2003 Motion To Declare Kyle Roane An Habitual Offender. See
Paragraph 16 below.
5
Elm B (27 )

Case 1:05-cv—OO654-JJF D0cument_3-3 Filed 10/O4/2005 Page 2 of 4
Eorgery Second Degree (1992)a; Robbery First Degree/Snrglary
(1993)°; Robbery Second Degree (1997)" and Escape Second Degree
(2000).L Docket Entry 17 of Exhibit C of the State's Motion To
Declare Kyle Roane An Habitual Offender (Exhibit A hereto)
confirms that determination:
7/7/2000; ORDER This Court finds that Kyle
Roane Falls Within The provisions of L1 Del.
C. §4214 and it is therefore ordered that
Kyle Roane is declared to be an habitual
offender under the law of the State of
Delaware.
17. Due to my misapprehension as to the nature of the 1988
conviction, I never considered whether to challenge Defendant's
sentencing as an habitual offender at either the trial or
appellate level on the ground that one of the predicate
convictions cited by the State in its August, 2003 Motion To
Declare Kyle Roane An Habitual Offender was in fact a misdemeanor
conviction. To the contrary, at sentencing I erroneously conceded
that the 1988 drug conviction constituted one of the three (3)
predicate felonies necessary for sentencing pursuant to 11 Del.
S JIC No. 92009964DI
° JIC Nos. 30209828DI and 93001239DI
m Jic NO. 96ii0iisa9
Il JIC No. 990500964l. In this case, Defendant was declared
and sentenced as an habitual offender. See D.I. Nos. 15-17.
6
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1} August 22, 2003 l
Courtroom No. 42
2 1:15 p.m.
3 QRESEDJT: I
I .
4 As noted. `
6 HR. WALTHER: We're ready to proceed with Kyle
7 Roane. Before we begin, did Your Honor get a copy of my
6 motion?
9 THE COURT: Mo. 1s tnat an naoitual offender
10 motion?
ll MR. WALTHER: Yes.
12 THE COURT: No, I hadn't seen that.
13 Don't forget to always send courtesy copies to
14 chambers, especially with the prothonotary staff
15 shortage that we do now have.
16 All right. Before we proceed with the
17 sentencing of Kyle Roane, let's act on the State's
13 motion filed August 18 to declare the defendant an
19 habitual offender.
2O Mr. Walther.
21 MR. WALTHER: Yes, Your Honor. I believe the
22 motion speaks for itself. He has convictions on Charge
23 1, possession with intent to deliver cocaine back in
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1% 19;;; is nes e berglesy third conviction in this coup;
2% beck in 1993. And he hes en escepe second degree
391 conviction in 2OOC. And, of course, Yee: Honor presided
A E over the triel in which ne wes convicted of robbery in .
Ev; the first degree. 9
6 THE COURT: Mr. Bertley.
7 MR. BARTLEY: Your Honor, we do not dispute the
8 predicete felonies. However, Your Honor will recell
9 thet there wes e defense. And the defense wes e lesser ' i
10 included defense of esseult third end shoplifting. It E
11 went to the jury in the efternoon, end they ceme beck Q
12 the next dey end convicted him of robbery second. §
13 We went to preserve our position: nemely, thet j
14 he cennot be convicted of robbery first degree or
15 sentenced es en hebituel offender beceuse he fectuelly
16 committed shoplifting, end legelly shoplifting cennot
17 become robbery if ——
18 THE COURT: Of course, your position cen be
‘ 19 preserved beceuse you reised those issues et triel. But
20 the jury did come beck with the robbery second
21 conviction. Thet meens, of course, under the lew ——
22 MR. WALTHER: The jury ceme beck robbery first
23 degree.
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