State v. Draper

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID No. 2210012695
:
v. :
:
ROBERT W. DRAPER, :
:
Defendant. :

Submitted: November 11, 2024
Decided: January 9, 2025

ORDER

On this 9th day of January 2025, upon consideration of Defendant Robert
Draper’s motion for postconviction relief, the Commissioner’s Report and
Recommendation (the “Report”), and the record in this case, it appears that:
1. On March 9, 2023, Mr. Draper pled guilty to one count of Possession
of a Firearm by a Person Prohibited, 11 Del. C. § 1448. In his plea agreement with
the State, the parties jointly recommended that he serve an unsuspended ten years of
incarceration, followed by decreasing levels of probation. Pursuant to the
agreement, the State further agreed to refrain from filing a habitual offender petition.
The parties agreed that Mr. Draper’s conviction of the lead charge would have
required a thirty-year minimum mandatory unsuspended sentence if the State opted
to file such a petition. After the Court conducted a full colloquy, it accepted the
plea and sentenced Mr. Draper consistently with the joint recommendation.
2. Mr. Draper filed no direct appeal after his guilty plea. Rather, he filed
a motion, pro se, seeking postconviction relief pursuant to Superior Court Criminal
Rule 61. The Court then referred the matter to a Superior Court commissioner for
findings of fact and recommendations as permitted by 10 Del. C. § 512(b) and
Superior Court Criminal Rule 62 (a)(5).
3. After considering the parties’ positions, the Commissioner issued her
findings and recommendations in her Report attached as Exhibit A. In her Report,
she explained (1) why Mr. Draper failed to demonstrate that his counsel performed
ineffectively before or during his guilty plea and sentencing, (2) why he failed to
demonstrate any concrete prejudice, and (3) why his remaining grounds for relief
had no merit. The Commissioner conducted a complete review of the record and
found that Mr. Draper’s counsel provided competent representation, that he suffered
no prejudice, and that he entered his plea knowingly, intelligently, and voluntarily.
Accordingly, she recommended that the Court deny Mr. Draper’s motion for
postconviction relief.
4. Mr. Draper did not appeal the Report within ten days as permitted by
Delaware Superior Court Criminal Rule 62(a)(5)(ii).1 As a result, the Court adopts
the Report in its entirety given Mr. Draper’s failure to file an appeal. Furthermore,
the recommendations in the Report are well-reasoned and adequately supported by
the record.
NOW, THEREFORE, for the reasons stated in the Commissioner’s Report
and Recommendation filed on October 28, 2024:
IT IS HEREBY ORDERED that the Court adopts the Commissioner’s
Report and Recommendation attached as Exhibit A in its entirety. Mr. Draper’s

1
The Commissioner filed her Report on October 28, 2024. The Court deems the matter
submitted for decision after expiration of the ten-day appeal deadline, which ran on November
11, 2024.

2
motion for postconviction relief filed pursuant to Superior Court Criminal Rule 61
is therefore DENIED.

/s/Jeffrey J Clark
Resident Judge

JJC/klc
oc: Prothonotary
cc: The Honorable Andrea M. Freud
Mr. Robert Draper, Pro Se
Trial Counsel

3
Exhibit A

4
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID No. 2210012695
:
v. :
:
: IK-22-11-0266-01 – PFBPP PABPP
ROBERT W. DRAPER, :
SBI # 00186606 :
:
Defendant.

COMMISSIONER’S REPORT AND RECOMMENDATION

Upon Defendant’s Motion for Postconviction Relief
Pursuant To Superior Court Criminal Rule 61

Stephen Welch, Esq., Department of Justice for State of Delaware

Robert W. Draper, pro se

FREUD, Commissioner
October 25, 2024

5
The defendant, Robert W. Draper., (“Draper”) pled guilty, pre-indictment, on
March 9, 2023, to one count of Possession of a Firearm by a Person Prohibited
(PFBPP) 11 Del. C. § 1448. He was also charged with a second count of PFBPP,
two counts of Receiving Stolen Firearms, and three counts of Receiving Stolen
Property. As part of the plea deal, the State agreed to enter a nolle prosequis on the
remaining charges, and not file a motion to declare Draper a habitual offender. The
State also agreed to recommend fifteen years incarceration, suspended after ten years
minimum mandatory, for varying levels of probation. Had Draper gone to trial and
been found guilty as charged, he faced over 30 years of minimum mandatory jail
time and the possibility of life in prison as a habitual offender. The Court agreed
with the sentence recommendation of the parties and sentenced Draper accordingly.
Draper did not appeal his conviction to the State Supreme Court. Draper filed
the pending Motion for Postconviction Relief pursuant to Superior Court Criminal
Rule 61, on January 23, 2024, in which he alleges, in part, ineffective assistant of
Counsel.
FACTS
According to the Affidavit of Probable Cause, on October 15, 2022, at
approximately 12:48 pm the Delaware State Police dispatched Corporal Myer to the
Royal Farms on North Dupont Highway in Dover, Delaware concerning a possible
stolen vehicle. The stolen vehicle was a 1997 Chevrolet Silverado, owned by John
Brown and stolen from his house in Caroline County, Maryland Additionally two
firearms and other items that had also been stolen from inside Mr. Brown’s residence
at the same time as the vehicle theft. At the time Corporal Myer was dispatched,
John Kinard, an employee of the victim John Brown, was watching the stolen
Silverado at the Royal Farms and called the State Police to inform them that the
stolen vehicle had been located.

6
Corporal Myers made a Felony related stop of the Silverado as it was exiting
the Royal Farms. The vehicle was a positivity identified by a computer check as
being the same vehicle reported as stolen from Caroline County, Maryland. Inside
the vehicle two firearms, a Remington 870 shotgun and a Remington 597.22,
reported as stolen were found, along with several other items that had also been
reported stolen from victim Brown.
At the time of the stop Judy Goddard was the sole occupant of the Silverado.
Ms. Goddard was transported to Delaware State Police Troop 9 and Lieutenant
Baker from Caroline County police came to Troop 9 to interview her. During the
interview Goddard explained that she was living at the Dover Inn, in Dover,
Delaware, and was in a relationship with Draper.
On October 27, 2022, Detective Scott of the Delaware State Police was
provided with surveillance video from Dover Inn which showed the stolen Silverado
pulling up in front of the Dover Inn and Draper exiting the driver side of the truck
then entering the Motel. Goddard exited the passenger side and also entered the
Motel. The video was recorded on October 13, 2022, at approximately 6:25 pm. The
video also showed Draper paying for a room and being given a room key. 2 Further
investigation led to a DNA report confirming Draper’s DNA on the Remington 870
shotgun. Latent, fingerprints taken from the stolen truck were either of no value or
did not match Draper or Goddard. Draper was a Person Prohibited from Possessing
Firearms due to his extensive felony history including two prior violent felony
convictions and 14 prior nonviolent felony convictions. Due to his criminal history,
he faced 10 years minimum mandatory sentence on each of the PFBPP charge. He
was also eligible to be sentenced as a habitual offender due to his criminal history.

2
Affidavit of Probable cause DK Item # 1

7
Had the State pursued a motion to declare Draper a habitual offender he faced the
possibility of a sentence of life in prison.
Prior to the matter being indicted the prosecutor made a plea offer to Draper
and stated that the plea would only be available pre-indictment. Draper accepted the
plea, after discussing it and the discovery provided by the State with his attorney.

DRAPER’S CONTENTIONS
In his Motion for Postconviction Relief Draper raises the following grounds
for relief:
Ground One: Ineffective assistance of counsel
I asked for a copy of my discovery 3# different times’, and
I still don’t have one

Ground Two: No Forensics report.
I asked 3 time (sic) for a Forensics report that my counsel
said the State had never got that report. And still don’t
have one.

Ground Three: I was showed no kinda (sic) Evidence

I wrote the courts about all of this and asked for any kinda
(sic) help and never got anything back.

Ground Four: I was showed (sic) no kinda (sic) evidence
I wrote to the courts about all of this and asked for any
kinda (sic) help and never got anything back
Stephanie Blaisdell told me to take the plea, or I would end
up with a life sentence if I went to trial. I even told the
Judge I feel I was being force (sic) to take this plea. or I
would end up with life if I didn’t take it that’s what I was
told by Stephanie.

DISCUSSION
Under Delaware law, the Court must first determine whether Draper has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it can

8
consider the merits of the postconviction relief claim.3 Under Rule 61,
postconviction claims for relief must be brought within one year of the conviction
becoming final. 4 Draper’s motion was filed in a timely fashion; thus the bar of Rule
61(i)(1) does not apply to the Motion. As this is Draper’s initial motion for
postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any
claim not previously asserted in a postconviction motion, does not apply either.
None of Draper’s claims were raised previously at his plea, sentencing, or on
direct appeal. Consequently, they are barred under Superior Court Criminal Rule
61(i)(3) unless he demonstrates: (1) cause for relief from the procedural default; and
(2) prejudice from a violation of the movant’s rights. 5 The bars to relief are
inapplicable to a jurisdictional challenge or “to a claim that satisfies the pleading
requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of this rule.6 To meet
the requirements of Rule 61 (d)(2) a defendant must plead with particularity that new
evidence exists that creates a strong inference that the movant is actually innocent
in fact of the acts underlying the charges of which he was convicted 7 or that he
pleads with particularity a claim that a new rule of constitutional law, made
retroactive to cases on collateral review by the United States or Delaware Supreme
Courts, applies to the defendant’s case rendering the conviction invalid.8 Draper’s
motion pleads neither requirement of Rule 61(d)(2).
Each of Draper’s grounds for relief are to some extent premised on allegations
of ineffective assistance of counsel. Therefore, Draper has alleged sufficient cause
for not having asserted these grounds for relief at trial and on direct appeal. Draper’s

3
Bailey v. State, 588 A,2d 1121, 1127 (Del. 1991)
4
Super. Ct. Crim. R. 61(i)(1)
5
Super. Ct. Crim. R. 61(i)(3).
6
Super. Ct. Crim R. 61(i)(5)
7
Super. Ct. Crim. R. 61(d)(2)(i)
8
Super. Ct. Crim. R. 61(d)(2)(ii)

9
ineffective assistance of counsel claims are not subject to the procedural default rule,
in part, because the Delaware Supreme Court will not generally hear such claims for
the first time on direct appeal. For this reason, many defendants, including Draper,
allege ineffective assistance of counsel in order to overcome the procedural default.
“However, this path creates confusion if the defendant does not understand that the
test for ineffective assistance of counsel and the test for cause and prejudice are
distinct, albeit similar, standards.”9 The United States Supreme Court has held that:
[i]f the procedural default is the result of ineffective assistance of
counsel, the Sixth Amendment itself requires that the responsibility
for the default be imputed to the State, which may not ‘conduc[t]
trials at which persons who face incarceration must defend
themselves without adequate legal assistance;’ [i]neffective
assistance of counsel then is cause for a procedural default.10
A movant who interprets the final sentence of the quoted passage to mean that he
can simply assert ineffectiveness and thereby meet the cause requirement will miss
the mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant
must engage in the two-part analysis enunciated in Strickland v. Washington11 and
adopted by the Delaware Supreme Court in Albury v. State.12
In the context of a guilty plea challenge, Strickland requires a defendant show:
(1) that counsel’s representation fell below an objective standard of reasonableness;
and (2) that counsel’s actions were so prejudicial to him tin that there is a reasonable
probability that, but for counsel’s error, he would not have pled guilty and would
have insisted on going to trial and that the result of a trial would have been his

9
State v. Gattis, 1995 WL 790961 (Del. Super.).
10
Murray v. Carrier, 477 U.S. 478, 488 (1986).
11
466 U.S. 668 (1984).
12
551 A.2d 53, 58 (Del. 1988).

10
acquittal.13 The failure to establish that a defendant would not have pled guilty and
would have proceeded to trial is sufficient cause for denial of relief. 14 In addition,
Delaware Courts have consistently held that in setting forth a claim of ineffective
assistance of counsel, a defendant must make concrete allegations of actual prejudice
and substantiate them or risk summary dismissal.15 When examining the
representation of counsel pursuant to the first prong of the Strickland test, there is a
strong presumption that counsel’s conduct was professionally reasonable. 16 This
standard is highly demanding.17 Strickland mandates that, when viewing counsel’s
representation, this Court must endeavor to “eliminate the distorting effects of
hindsight.”18
Following a complete review of the record in this matter, it is abundantly clear
that Draper has failed to allege any facts sufficient to substantiate his claims that his
attorney was ineffective. I find Trial Counsel’s affidavit, in conjunction with the
record, more credible that Draper’s self-serving claims that his Counsel’s
representation was ineffective. Draper’s Counsel clearly denied the allegations.
Draper was facing the possibility of 30 years minimum mandatory and a
possible life sentence, had he been convicted on all counts. The sentence and plea
were very reasonable under all the circumstances. Especially with the strong DNA
and video evidence. Prior to the entry of the plea, Draper and his attorney discussed
the case and the plea. The plea bargain was clearly advantageous to Draper. Counsel
was successful in negotiating a beneficial plea bargain with the State. Counsel’s

13
Strickland, 466 U.S. at 687
14
Somerville v. State, 703 A.2d 629, 631 (Del. 1997) (Citing Albury v. State, 551 A.2d 53, 60(Del.1988)) (citations
omitted)
15
See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465 at *1 (Del.
Supr.))
16
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689)
17
Flamer v. State, 585 A.2d 736, 754 (Del 1990) (quoting Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)).
18
Strickland, 466 U.S. at 689

11
representation was certainly well within the range required by Strickland.
Additionally, when Draper entered his plea, he stated he was satisfied with the
Defense Counsel’s performance. He is bound by his statement unless he presents
clear and convincing evidence to the contrary.19 Consequently, Draper has failed to
establish that his Counsel’s representation was ineffective under the Strickland test.
Even assuming, arguendo, that Counsel’s representation of Draper was
somehow deficient, Draper must satisfy the second prong of the Strickland test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk
dismissal.20 In an attempt to show prejudice, Draper simply asserts that his Counsel
was ineffective. Draper’s Trial Counsel clearly denied all Draper’s allegation and
the records substantiate her. My review of the facts of the case leads me to conclude
that Counsel’s representation of Draper was well within the requirements of the
Sixth Amendment and no prejudice has been demonstrated. His statements are
insufficient to establish prejudice, particularly in light of the evidence against him.
Therefore, I find Draper’s grounds for relief meritless.
To the extent that Draper alleges his plea, in this case, was involuntary, the
record contradicts such allegations. When addressing the question of whether a plea
was constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.21 At the
guilty-plea hearing, the Court asked Draper whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
entering the plea. The Court asked Draper if he was in fact guilty of Possession of a

19
Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.) (citing Sullivan v. State, 636 A.2d 931, 937-938 (Del. 1994)).
20
Larson v. State, 1995 WL 389718, at *2(Del.Supr.) (citing Younger v. State, 580 A.2d 552, 556 (Del. 1990)).
21
Godinez v. Moran, 509 U.S. 389, 400 (1993).

12
Firearm by a Person Prohibited. The Court asked Draper if he understood he would
waive his Constitutional rights if he entered the plea including the right to suppress
evidence; if he understood each of the Constitutional rights listed on the Truth-in-
Sentencing Guilty Plea Form (“Guilty Plea Form”); and whether he gave truthful
answers to all the questions on the form. The Court asked Draper if he had discussed
his plea and its consequences fully with his attorney. The Court also asked Draper if
he was satisfied with this counsel’s representation. Draper answered each of these
questions affirmatively.22 After Draper pled Guilty, he asked the Court why he was
getting 10 years in jail since he was “never caught with the firearm” the following
Colloquy then took place.
THE COURT: Sir, do you want to -- I mean,
you were offered a guilty plea and you -- I haven't
sentenced you yet.
Do you want to enter this plea or not? I'm
not -- my job is not to make you, pressure you into
doing one or the other. My job is to make sure
you're doing the right thing for yourself and you're
doing it knowingly and voluntarily.
Are you pleading guilty?
THE DEFENDANT: I was told if I don't take
this plea, then I'm going to get 30 years.
THE COURT: All right.
Ms. Blaisdell, if you want to address what
your conversations were with him and we'll take it
from there. We'll be back once --
MS. BLAISDELL: Your Honor, this is an early
plea that was actually extended before the indictment
was made on Monday. Mr. Welch is graciously kept it
open so that he could consider doing the 10 years.
However, once it is scheduled for case review and the
fact that -- in light of the fact that it could be
habitual, he would be going after as a habitual
22
State v Draper, Del. Super., I.D. No. 2210012695 (March 9, 2023) Tr. 1-13

13
offender and that would make it 15 years on each of
the charges for two separate firearms.
THE COURT: So then if he went to trial and
lost, he would be facing 30 years minimum mandatory
up to two life terms?
MS. BLAISDELL: Yes, Your Honor.
MR. WELCH: Yes, Your Honor.
His DNA was found on one of the firearms it
turns out.
THE COURT: Okay.
So, sir, again, do you want to talk -- do
you need more time to talk --
THE DEFENDANT: No. I'll take this. I'll
take this.
THE COURT: Okay.
So you are guilty of this charge, sir?
THE DEFENDANT: Yeah.23

I find counsel’s representation for more credible than Draper’s self-serving
allegations.
Furthermore, prior to entering his plea, Draper signed a Guilty Plea Form and
Plea Agreement in his own handwriting. Draper’s signature on the forms indicate
that he understood the Constitutional rights he was relinquishing by pleading guilty
and that he freely and voluntarily decided to plead guilty to the charges listed in the
Plea Agreement. Draper is bound by the statements he made on the signed Guilty
Plea Form unless he proves otherwise by clear and convincing evidence. 24 I
confidently find that Draper entered his plea knowingly and voluntarily and that
Draper’s grounds for relief are completely meritless.

23
ID at 10 - 12
24
Somerville v. State, 703 A.2d 629, 632 (Del.1997)

14
CONCLUSION
I find that Draper’s counsel represented him in a competent and effective
manner as required by the standards set in Strickland and that Draper has failed to
demonstrate any prejudice stemming from the representation. I also find that
Draper’s guilty plea was entered knowingly and voluntarily. I recommend that the
Court deny Draper’s Motion for Postconviction Relief as meritless.

Andrea M. Freud
Commissioner

AMF/pdb
oc: Prothonotary
cc: Resident Judge Jeffrey J Clark
Stephen Welch, DAG
Stephanie Blaisdell, Esq.
Robert Draper, JTVCC

15