State v. Tingle ( 2022 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. No. 1702000035
) 1702000526
)
JERMAINE TINGLE, )
)
Defendant. )
Submitted: June 17, 2022
Decided: August 26, 2022
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
Erika Flaschner, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.
Benjamin S. Gifford, IV, Esquire and Natalie S. Woloshin, Esquire, Wilmington,
Delaware, Attorneys for Defendant Jermaine Tingle
PARKER, Commissioner
This 26th day of August 2022, upon consideration of Defendant’s Motion
for Postconviction Relief, it appears to the Court as follows:
BACKGROUND AND PROCEDURAL HISTORY
In 2017, Defendant Jermaine Tingle, along with codefendants Stephen
Dunfee and Kristen Butler, was indicted on multiple drug and firearm offenses.1
Tingle’s trial counsel filed two motions to suppress. The first, filed on
October 4, 2017, sought to suppress the evidence seized pursuant to the search
warrants on the ground that there was a misstatement in the affidavit of probable
cause.2 On December 1, 2017, the Superior Court denied the motion finding it
clear on the face of the warrants that the questioned reference was a typographical
error.3
The second motion to suppress, filed on December 5, 2017, was based on
alleged late discovery from the State.4 Tingle sought to suppress one of the drug
lab reports and the police officer expert testimony regarding drug dealing based on
the late submission from the State.5 The Superior Court denied the motion.6
1
As to Criminal ID No. 1702000035, Superior Court Docket Nos. 80 & 81;
As to Criminal ID No. 1702000526, Superior Court Docket Nos. 78 & 79: Appendix to the
Defendant’s Amended Motion for Postconviction Relief (“Def. App.”) at pgs. A49-56, 112-120.
2
Def. App. 70-75.
3
As to Criminal ID No. 1702000035, Superior Court Docket No. 21;
As to Criminal ID No. 1702000526, Superior Court Docket No. 17 -Order dated December 1,
2017 denying motion to suppress.
4
Def. App. 124-128.
5
Id.
6
Def. App. 198.
1
If convicted of all the charges at trial, Tingle was facing a minimum-
mandatory jail sentence of at least 65 years as a habitual offender. Tingle rejected
the State’s offer to a guilty plea to two of the fourteen charges (Conspiracy Second
Degree and Possession of a Firearm During the Commission of a Felony
(“PFDCF”) with a sentence recommendation of a total of 27 years of prison time,
with a 25-year minimum-mandatory cap.7 As discussed more fully below,
following his jury trial, Tingle was ultimately sentenced to 20 years of
unsuspended prison time, with a 17-year minimum-mandatory cap. A sentence
more favorable than the plea offered by the State.
Tingle’s trial was scheduled to proceed in a joint trial along with his two
codefendants. The other two defendants, Dunfee and Butler, failed to appear for
trial.8 Tingle was the only defendant who proceeded to trial on January 3, 2018.
Following a four-day trial, on January 9, 2018, a Superior Court jury
convicted Tingle of two counts of drug dealing, two counts of aggravated
possession, two counts of conspiracy second degree, one count of possession of a
firearm by a person prohibited (“PFBPP”), one count of possession of drug
paraphernalia, one count of drug dealing with an aggravated factor, and one count
7
Def. App. 199-201; As to Criminal ID No. 1702000035, Superior Court Docket No. 34;
As to Criminal ID No. 1702000526, Superior Court Docket No. 27 - rejected plea offer.
8
Def. App. 185-187.
2
of use of a cellular device while driving.9 The Superior Court jury found Tingle
not guilty of PFDCF.10
On September 21, 2018, Tingle was sentenced. Prior to sentencing, the
Superior Court granted the State’s motion to declare Tingle an habitual offender on
the PFBPP conviction.11 The Superior Court granted the defense motion to
consolidate the felony drug convictions for the purpose of sentencing.12 Tingle was
sentenced to a total of fifty-two (52) years of Level V incarceration, suspended
after twenty (20) years, followed by eighteen (18) months at Level III probation.13
Seventeen (17) of the twenty (20) years of unsuspended Level V time constituted a
mandatory sentence.14
Tingle filed a direct appeal to the Delaware Supreme Court. On May 10,
2019, the Delaware Supreme Court determined that the appeal was without merit
and affirmed the judgment of the Superior Court.15
On June 20, 2019, Tingle filed a pro se motion for postconviction relief and
a request for the appointment of counsel.16 The Court granted Tingle’s request for
9
Def. App. 656-659.
10
Def. App. 657-658.
11
Def. App. 721-722.
12
Def. App. 765-766.
13
Def. App. 792-800.
14
Id.
15
Tingle v. State, 2019 WL 2079060 (Del.).
16
Def. App. 943-947; 948-951.
3
the appointment of counsel.17 On October 29, 2020, appointed counsel filed an
Amended Motion for Postconviction Relief. Thereafter, trial counsel submitted an
Affidavit responding to Tingle’s claims. The State submitted a response and
Tingle submitted a reply thereto.
Following briefing on the motion, on April 13, 2022, a hearing was held
during which the parties were instructed to submit supplemental briefing on certain
issues. On April 20, 2022, trial counsel submitted a supplemental submission, and,
on June 17, 2022, both the State and defense counsel filed their respective
supplemental submissions. Tingle’s Rule 61 motion is now fully briefed and ripe
for consideration.
FACTS
On January 31, 2017, members of the Delaware State Police Governor’s
Task Force were on patrol in the City of Wilmington.18 At approximately 9:00
p.m., the Officers were at a traffic light behind a black Kia Sportage and observed
the driver of the vehicle talking on his cell phone holding the phone at his ear.19 A
motor vehicle stop was conducted for the cell phone violation and Tingle was
17
Def. App. 952.
18
Def. App. 952.
19
Def. App. 223-225.
4
identified as the driver, and Stephen Dunfee was identified as the front passenger.20
The vehicle Tingle was driving was a rental car.21
During the traffic stop, both Tingle and Dunfee engaged in suspicious
behavior. Tingle’s hands were shaking and he was trying to control his breathing.22
Dunfee was eventually removed from the vehicle and found to be in possession of
650 bags of heroin.23 A search incident to the arrest of Tingle yielded
approximately $2,000 of suspected drug proceeds and a key to an Audi was found
in the center console of the Kia.24 The money found in Tingle’s pocket was rubber
banded with small, black rubber bands commonly used to package bundles of
heroin.25 Tingle and Dunfee were arrested and taken into custody.26
Of the 650 bags of heroin, 638 were stamped “100%” and 12 were not
stamped. Tests confirmed that the stamped bags weighed approximately 4.36
grams and the unstamped bags weighed approximately .05 grams.27 The amount of
heroin seized would retail for $1,750-$2,000.28
Detective Stewart from the New Castle County Police Department testified
at trial as an expert. He testified that drug dealers frequently use rental cars, so
20
Def. App. 225-227.
21
Def. App. 227.
22
Def. App. 229.
23
Def. App. 232-237; 662-663.
24
Def. App. 234.
25
Def. App. 110-111.
26
Def. App. 233.
27
Def. App. 662-663.
28
Def. App. 447.
5
they are not always driving the same vehicle, and they are not easily identified by
police or individuals that want to rob them.29 Detective Stewart also testified that
in many instances drug dealers work in pairs, one has the money, the other has the
drugs.30 The person higher up in the dealing scheme would be the person with the
money. That person would usually want to distance himself from the drugs.31
At the time of the arrest, Tingle was on Level III probation with a reported
address of 824 N. West Street, Apartment 14.32 Probation Officer Vettori
responded to the car stop providing back-up to the officers already at the scene.33
Following the car stop, Officer Vettori contacted his supervisor and conducted a
case conference regarding the facts of the car stop.34 Approval was granted to
conduct an administrative search at Tingle’s reported address.35
At the time of the search, Tingle’s uncle was present.36 He told police that
Tingle lived there, slept on the sofa, and kept his belongings in the closet in the
bedroom and a white dresser in the living room.37 In the bedroom closet, police
located bins of male clothing, letters addressed to Tingle, and a black plastic bag
29
Def. App. 448, 453.
30
Def. App. 449.
31
Def. App. 475-476.
32
Def. App. 110-111.
33
Def. App. 110-111, 299-300, 307-308.
34
Def. App. 110-111.
35
Def. App. 110-111.
36
Def. App. 303.
37
Def. App. 303; 306.
6
filled with cash.38 Inside the plastic bag, there were ten stacks of cash wrapped in
black rubber bands of $2,000 each, totaling $20,000.39 In the white dresser, police
found an additional $1,065 cash in a pair of jeans.40
The next morning, on February 1, 2017, Detective Wilkers of the
Wilmington Police Department learned that Tingle and Dunfee had been arrested.41
Completely separate from the car stop with the Delaware State Police on the
evening of January 31, 2017, the Wilmington Police Department had been
conducting a drug investigation involving Tingle and Dunfee involving the illegal
sale of narcotics from a home at 70 Hillside Road, Wilmington, Delaware.42
Tingle was frequently observed coming and going to that residence, a single-
family house with an attached garage, in a blue Audi A4 sedan.43
Independent of the traffic stop the evening before, a search warrant had
already been prepared for that Hillside Road residence. When Detective Wilkers
learned of the traffic stop, he wanted to immediately execute the search warrant at
the residence before any evidence could be removed.44
38
Def. App. 303-304.
39
Def. App. 304.
40
Def. App. 306.
41
Def. App. 312.
42
Def. App. 312-313.
43
Def. App. 312-314.
44
Def. App. 312-314.
7
On February 1, 2017, a search warrant was executed at the Hillside Road
residence.45 Upon arrival at the residence, Kristen Butler advised the police
officers that she was Dunfee’s girlfriend and identified the bedroom she and
Dunfee shared.46 In that bedroom, police found a digital scale, several bags of
heroin stamped “Sony” in a dresser, and a similar bag of heroin on the floor. In an
unlocked safe in that bedroom, police found a partial bundle of heroin, $870 cash,
and an unloaded .50 caliber Desert Eagle firearm.47 Detective Wilkers testified that
it was the only .50 caliber firearm that he had ever recovered in his eight years with
the Wilmington Police Department.48
Although the firearm was swabbed for DNA, due to a mixed DNA profile
indicating that the firearm was handled by multiple people, no conclusions could
be drawn as to whether any particular individual handled the firearm.49 No latent
fingerprints of any value were found on the firearm.50
In the garage of the Hillside residence, police found the blue 2002 Audi A4,
which Detective Wilkers had seen Tingle, and only Tingle, drive.51 The Audi was
45
Def. App. 313.
46
Def. App. 314-315.
47
Def. App. 318-324.
48
Def. App. 326-327. The firearm was an Israeli Military Industries Desert Eagle .50 caliber
semi-automatic pistol. It retailed for about $1,700, weighed four and a half pounds, and was one
of the more powerful handguns on the market. Id. at 378-380.
49
Def. App. 375, 395-399.
50
Def. App. 107-108.
51
Def. App. 328, 354-355.
8
locked.52 In the garage, police also found approximately 200 grams of marijuana
in a heat-sealed plastic bag placed in a dog food bag.53 On the garage floor next to
the Audi, police found a red plastic bag that contained Ziplock bags and a black
plastic bag.54 Inside the black bag were additional items used to package heroin.
Specifically, inside the black bag were clear plastic “Apple bags” (used to package
individual bags of heroin), unused blue glassine bags, a package of 300 black
rubber bands, a straw cut diagonally (which is commonly used to fill heroin bags),
a bottle of Mannitol (which is commonly used to cut heroin to increase weight),
and five glassine bags containing heroin, stamped “Pinky”.55
The doors to the blue Audi A4 were locked.56 No key to the Audi was found
at the Hillside residence.57 Police towed the Audi to the police station, obtained a
separate search warrant, and searched it.58 The Audi was registered to Tingle’s
mother, Anna Watson.59 Inside the vehicle, police found multiple documents and
personal items belonging to Tingle.60 A wallet belonging to Tingle was also found
52
Def. App. 328.
53
Def. App. 328. The amount of marijuana found would be the equivalent of one thousand
marijuana cigarettes. Id. at 452.
54
Def. App. 328-329.
55
Def. App. 329-334.
56
Def. App. 328, 336.
57
Def. App. 364-365.
58
Def. App. 336-337.
59
Def. App. 336.
60
Def. App. 337-341.
9
in the vehicle.61 In the trunk of the Audi, police found a green cellophane wrapped
package that contained approximately 650 bags of heroin.62 The heroin was
grouped in bundles of 13 bags, held together by black rubber bands, and the vast
majority of the bags were stamped “100%”.63 The heroin located in the trunk of
Tingle’s vehicle would retail for around $2,000.64
The heroin found in the trunk of Tingle’s car (stamped “100%”) was the
same brand as the heroin found on Dunfee (also stamped “100%”) during the car
stop the evening before.65
Tingle’s documents found in the Audi referenced three different mailing
addresses for Tingle.66 Detective Stewart testified that drug dealers are often
associated with several different addresses to avoid being detected. The more the
dealer moves around the safer he is going to be.67
Detective Stewart also testified that drug dealers, in order to avoid being
detected, tend to drive rental cars and change them on a regular basis.68 Tingle was
61
Def. App. 337, 341.
62
Def. App. 337, 342.
63
Def. App. 337, 342-344.
64
Def. App. 453.
65
Def. App. 344, 453.
66
Def. App. 337-342. (a pay stub for Tingle showed his address at 914 E. 7th Street; a rental
application showed Tingle’s address as 211 N. New Street, Dover; and a receipt from Meineke
Car Care Center showed Tingle’s address as 824 N. West Street).
67
Def. App. 453.
68
Def. App. 448, 453.
10
driving a rental car the night of the car stop but he also drove the Audi which was
in the garage at the Hillside residence. He also drove a black truck.69
Tingle was the only person in possession of the key to the locked Audi in the
garage at the Hillside residence. The Audi key found in the center console of the
Kia that Tingle was driving at the time of the traffic stop was the key to Audi.70
At trial, Tingle and his girlfriend, Amanda Long, testified on his behalf.71
Tingle’s defense, essentially, was that he knew nothing about the drugs, Dunfee
was the drug dealer, and that Tingle was in the wrong place at the wrong time
when they were pulled over by the Delaware State Police.72
Amanda testified that she also lived at the Hillside residence along with
Dunfee and his girlfriend and that Tingle left his Audi in the garage to get his car
serviced. They both testified that something was wrong with the brakes and that
Dunfee was going to take the car in for servicing.73 Amanda testified that in
addition to the blue Audi, Tingle also had a black truck.74 She testified that she
thought Dunfee had an extra key to the Audi to take it to the mechanic.75
On the night of the traffic stop, Tingle was driving a rental car not his black
truck or his Audi. Although they both testified that the Audi was at the Hillside
69
Def. App. 496-498.
70
Def. App. 234, 348-350, 552.
71
Def. App. 490, 514.
72
Def. App. 515-540.
73
Def. App. 493-500; 525-526.
74
Def. App. 498.
75
Def. App. 499-500.
11
residence so that Dunfee could take the car in for servicing, there was no key found
at the Hillside residence. The only key found was in Tingle’s possession.76
As for the $20,000 found in his bedroom closet, Tingle testified that in his
work for his mother’s charitable organization, Anna’s House, he collected
donations.77 He testified that he would keep the donations, which were mostly
cash, until the accountant came up from Virginia to collect them.78
The State argued that Tingle claimed to be working for his mother’s
nonprofit organization doing clerical work but that it made no sense that a
nonprofit organization would store $20,000 in donations in the back of an
employee’s closet in a plastic bag, rubber banded in ten stacks of $2,000 each.79
The State argued that the money found in Tingle’s closet was money he received
for selling drugs. Nonprofits put their cash in a bank. Drug dealers cannot.
Nonprofits can collect donations in the form of checks and credit card donations.
Drug dealers cannot.80
The Superior Court jury found Tingle not guilty of PFDCF, and guilty of the
remaining counts of the indictment.
76
Def. App. 234, 348-350.503-504.
77
Def. App. 539-540.
78
Def. App. 539-540.
79
Def. App. 583-586.
80
Def. App. 583-586.
12
TINGLE’S RULE 61 MOTION
In the subject Rule 61 motion, Tingle raises seven ineffective assistance of
counsel claims.
In order to prevail on an ineffective assistance of counsel claim, Tingle must
meet the two-pronged Strickland test by showing that: (1) counsel performed at a
level “below an objective standard of reasonableness” and that, (2) the deficient
performance prejudiced the defense.81
The first prong requires the defendant to show by a preponderance of the
evidence that defense counsel was not reasonably competent, while the second
prong requires him to show that there is a reasonable probability that, but for
defense counsel’s unprofessional errors, the outcome of the proceedings would
have been different.82 In order to prevail on a claim of ineffective assistance of
counsel, the defendant must demonstrate that, but for counsel’s alleged error, he
would have been acquitted.83
Mere allegations of ineffectiveness or conclusory statements will not suffice;
instead, a defendant must make and substantiate concrete allegations of actual
prejudice.84 The test is not whether the defendant can demonstrate that the error
81
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
82
Id. at 687-88, 694.
83
Couch v. State, 945 A.2d 593 (Del. 2008).
84
Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Gonzalez, 2019 WL 1762976, *1
(Del.).
13
had some “conceivable effect” on the outcome but rather whether the error was so
serious as to deprive the defendant of a fair trial.85
Although not insurmountable, the Strickland standard is highly demanding
and leads to a strong presumption that counsel’s conduct fell within a wide range
of reasonable professional assistance.86 Moreover, there is a strong presumption
that defense counsel’s conduct constituted sound trial strategy.87
In considering post-trial attacks on counsel, Strickland cautions that trial
counsel’s performance should be reviewed from the defense counsel’s perspective
at the time decisions were being made.88 It is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.89 A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting efforts of
hindsight. Second guessing or “Monday morning quarterbacking” should be
avoided. 90
A defendant is not guaranteed perfect representation, only a reasonably
competent attorney. There is no expectation that competent counsel will be a
85
State v. Gonzalez, 2019 WL 1762976, *1 (Del.); Harrington v. Richter, 131 S.Ct. 770, 791
(2011).
86
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del.
2008).
87
Strickland v. Washington, 466 U.S. 668, 689 (1984).
88
Id.89
Id.90
Id.14
flawless strategist or tactician.91 There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way. Consequently, defense counsel must be
given wide latitude in making tactical decisions.92 Counsel is permitted to make
reasonable decisions that particular investigations are unnecessary. A defense
counsel can avoid activities that appear distractive for more important duties.
There is a strong presumption that defense counsel’s focus on certain issues to the
exclusion of others reflects trial tactics rather than sheer neglect.93
With this backdrop in mind, we turn to Tingle’s specific claims.
Claim I: Failing to Challenge the Administrative Search
Tingle claims that trial counsel was ineffective for failing to file a motion to
suppress the administrative search of his residence at 824 N. West Street, arguing
that there was no nexus between any suspected wrongdoing and the residence. At
the residence, over $20,000 in suspected drug proceeds was found during the
search.
Trial counsel advised that he did not file a suppression motion of the search
of Tingle’s residence at 824 N. West Street because he did not believe any such
91
Harrington v. Richter, 131 S.Ct. 770, 787-792 (2011).
92
Id. at 788-789.
93
Id. at 787-790.
15
motion was meritorious.94 Tingle was a Level III probationer and was arrested
following a traffic stop. At the time of the traffic stop, Tingle was in possession of
over $2,000 banded together with small, black rubber bands, and his passenger was
in possession of a substantial quantity of heroin packaged for sale.95
Tingle’s probation officer responded to the car stop, and following the car
stop, contacted his supervisor and conducted a case conference regarding the facts
of the car stop.96 The facts entailed that Tingle was the driver of a rental vehicle
that was stopped, that he was in possession of over $2,000 cash banded together
with small, black rubber bands commonly used to package bundles of heroin and
the passenger, Dunfee, had a large amount of heroin on him.97 Law enforcement is
aware that drug dealers frequently use rental cars and work in pairs.98 One person
has the money, the other the drugs.99
Given these facts, approval was granted to conduct an administrative search
at Tingle’s reported address.100 Given these facts, there was reasonable suspicion
to believe that Tingle was engaged in drug dealing. Given these facts, trial counsel
did not believe that there was any basis to move to suppress the search of Tingle’s
94
See, Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
95
Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
96
Def. App. 110-111, 299-300, 307-308.
97
Def. App. 110-111.
98
Def. App. 448-449, 453, 475-476.
99
Id.100
Def. App. 110-111.
16
residence.101 An ineffective assistance of counsel claim based on the failure to
object to evidence is without merit if trial counsel lacked a legal or factual basis to
object to the evidence.102
An administrative search of a probationer’s residence requires only
reasonable suspicion that the probationer is in violation of his probation.103 This
standard is met when the totality of the circumstances indicate that the probation
officer had a particularized and objective basis for the suspected legal
wrongdoing.104
Tingle’s reliance on Culver v. State105 and State v. Johnson106 to support his
position that the administrative search was improper is misplaced. Each case must
be viewed based on the totality of the circumstances presented therein. The
administrative searches in Culver and Johnson stemmed from unverified
anonymous tips that the probationer was involved in criminal activity.107 On the
other hand, this case stemmed from Tingle’s probation officers and other law
enforcements’ own personal observations.
101
Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
102
State v. Exum, 2002 WL 100576, at *2 (Del.Super.), aff’d, 2002 WL 2017230, at *1 (Del.).
103
Jacklin v. State, 2011 WL 809684, *2 (Del.); Donald, 903 A.2d at 318-319 (Del. 2006).
104
Jacklin, 2011 WL 809684 at *2.
105
Culver v. State, 956 A.2d 5 (Del. 2008).
106
State v. Johnson, 2014 WL 6661154 (Del.Super.).
107
See, Culver, 956 A.2d at 8 (police received an anonymous tip from an unknown caller with no
past proven reliability); Johnson, 2014 WL 6661154, at *1, 3.
17
Tingle’s probation officer followed the proper procedures prior to
conducting the search of Tingle’s residence. A case conference was conducted
between the probation officer and his supervisor and approval was granted to
conduct the administrative search. Here, the determination was not based on an
informant’s tip, so the reliability of the informant was not at issue. The approval
for the administrative search was granted based on the probation officer’s and
other law enforcements’ personal observations that they reasonably suspected that
Tingle was engaged in drug dealing.
Trial counsel was not deficient in failing to file a motion to suppress the
administrative search of Tingle’s residence that counsel believed had no merit.
Counsel’s belief that any such motion was meritless is objectively reasonable in
light of the facts and circumstances of this case. This claim is without merit.
Claim II- Failure to Correct the Record
Tingle contends that trial counsel was ineffective for failing to correct the
record after Detective Radcliffe mistakenly testified on cross-examination that he
located additional heroin in the center console of the vehicle during the car stop.
Tingle contends that he was prejudiced because this error in testimony was the sole
piece of evidence placing Tingle in actual, physical control of the heroin during the
car stop.
18
Detective Radcliffe testified on direct examination that the only drugs
recovered during the car stop were the 650 bags of heroin located in Dunfee’s
pants.108 However, at the end of trial counsel’s cross-examination, Detective
Radcliffe mistakenly testified that additional heroin was located in the center
console of the vehicle during the car stop.109
This mistaken testimony was never mentioned, argued, or referred to again
by either the State or by defense counsel. Neither party mentioned this testimony
during closing argument or at any other time.
Any error in failing to correct improperly admitted testimony may be
deemed to be harmless when the evidence exclusive of the improperly admitted
evidence is sufficient to sustain a conviction.110 In this case, the error was
harmless.
The State, and the Court, made it clear to the jury that possession does not
have to be actual but can be constructive.111 The Court instructed the jury:
Possession includes actual possession and constructive
possession. . . Constructive possession means the substance
was within defendant’s reasonable control. That is, in or
about the defendant’s person, premises, belongings or
vehicle. In other words, defendant had constructive
possession over a substance if defendant had both the power
and the intention at a given time to exercise control over the
108
Def. App. 232-233, 246-247.
109
Def. App. 253-254.
110
See, Wilson v. State, 2022 WL 212692, *4 (Del.); Cooke v. State, 97 A.3d 513, 547 (Del.
2014); Saavedra v. State, 225 A.3d 364, 384-385 (Del. 2020).
111
Def. App. 212, 578-580, 632-633.
19
substance either directly or through another person.
Possession may be sole or joint. . . Possession is proven if
you find beyond a reasonable doubt defendant had actual or
constructive possession, either alone or jointly with
others.112
In this case, the evidence presented at trial was that Dunfee had 650 bags of
heroin in his possession during the car stop, and Tingle had $2,000 in his
possession of suspected drug proceeds. That drug dealers often work in pairs, with
one holding the money and the other the drugs. In the trunk of Tingle’s car, parked
at the Hillside residence garage, another 650 bags of heroin were found. The vast
majority of the heroin in Tingle’s locked car was the same type of heroin found on
Dunfee during the car stop. Tingle’s car parked in Dunfee’s garage was locked
and Tingle was the only person that had a key to his car. Tingle, therefore, was the
only person that had access to the trunk of the locked car.
There was a plethora of evidence presented at trial that Tingle was engaged
in drug dealing and that he had constructive possession of the drugs from the car
stop and the drugs in his car.
Any error in failing to correct the record was harmless. Tingle has not
suffered actual prejudice as a result thereof. This claim is without merit.
112
Def. App. 632-633.
20
Claim III: Failure to Request Litigation Packets for the Lab Reports
Tingle contends that trial counsel was ineffective for failing to obtain the
underlying notes and supporting documentation (“litigation packets”) that
supported the reports by the forensic chemists Kyle Brown and Mollie Mares, both
employees of NMS Labs, that determined the substances seized were in fact
heroin. Tingle claims that he suffered prejudice because if a continuance was
granted to allow him the opportunity to obtain the litigation packets, Tingle would
have had time to obtain new counsel and if the continuance was not granted, he
would have had an appellate issue that somehow would have led to a reversal of
his conviction.
The heroin seized by Detective Radcliffe during the car stop was tested by
forensic chemist Kyle Brown.113 The heroin seized by the Wilmington Police
Department during the search of Tingle’s Audi was tested by forensic chemist
Mollie Mares.114 Mollie Mares’ report was turned over to trial counsel on
September 18, 2017.115 Kyle Brown’s report was turned over to trial counsel on
December 1, 2017.116 Trial counsel did not request the litigation packet for either
report.
113
Def. App. 662-663.
114
Def. App. 664-666.
115
Def. App. 192.
116
Def. App. 193.
21
Trial counsel did file a motion to suppress Kyle Brown’s report due to its
late submission to the defense.117 During the hearing on the suppression motion,
trial counsel represented that had the lab report been produced in a timely manner,
Tingle may have sought an independent review of the determination that the
substance examined was indeed heroin.118 Trial counsel then conceded that in his
experience, with the exception of the problems in the Medical Examiner’s Officer
which have now been rectified, he was not aware of the existence of any matter in
which a lab report was found to be in error in determining that the substance was
heroin.119 The following exchange then occurred:
COURT: . . . To your knowledge, is it standard procedure to
have independent review of those lab tests?
TRIAL COUNSEL: In my experience, it is not, Your Honor.
COURT: All right. And, also, in your experience and to your
knowledge, with the exception of the problems in the Medical
Examiner’s Officer, which now have been rectified, has there
ever been a finding that those lab reports were inaccurate?
TRIAL COUNSEL: In my direct experience and knowledge,
no, Your Honor.120
In denying the suppression motion, the Court stated that there was no actual
prejudice to Tingle for the late submission of the lab report as it was unlikely that
117
Def. App. 124-126.
118
Def. App. 189-190.
119
Def. App. 190-191.
120
Def. App. 191.
22
any opposing expert would have been retained to determine whether the substance
was indeed heroin. There was no suggestion that there was any possibility of error
on the part of the state medical examiner. And, of course, once the evidence is
admitted, the medical examiner witness would be subject to cross-examination.121
Tingle relies on Oliver v. State,122 in support of his position that not
requesting the litigation packet was deficient because the trial would have been
continued, or if the trial was not continued, the convictions would be reversed on
appeal. In Oliver, however, the defendant specifically identified how the State’s
discovery violation of the late production of the forensic chemist’s notes caused
actual prejudice.123 In Oliver, an additional chemist was also involved in the
testing and was not presented by the State as a witness and was not subject to
cross-examination. The defendant was not provided with the opportunity to
investigate that second chemist’s actions and reputation. The defendant also
identified the type of expert he might have hired and the data on which the expert
might have opined.124
That is not the situation presented here. In this case, the forensic chemists
involved in the testing of the drugs at issue and the preparation of their respective
findings testified as witnesses at trial and were subject to cross-examination. There
121
Def. App. 195.
122
Oliver v. State, 60 A.3d 1093 (Del. 2013).
123
See, Oliver v. State, 60 A.3d 1093, 1098-99 (Del. 2013).
124
Id.23
was nothing in their reports that raised any possible issues of any irregularities. It
is not standard procedure to hire an expert to independently review the lab results
and there was no showing of any actual prejudice that resulted in not having done
so here.125
Trial counsel was not deficient in failing to request the litigation package for
the lab reports determining that the substances were heroin, when, in counsel’s
experience, the lab reports were never found to be inaccurate. Trial counsel is not
required to engage in an exercise in futility merely to buy more time or to create an
appellate issue. Also, there is no actual prejudice as a result thereof because even
if the litigation packet had been obtained, it was extremely unlikely that an expert
would have been retained to review the report, and even more unlikely that the lab
results would be deemed inaccurate in any respect.
Moreover, in this case, the defense strategy was to deny that Tingle had
anything to do with the drugs seized by law enforcement. Tingle had elected an
“all or nothing” defense strategy.126 The defense strategy was that Tingle was in no
way responsible for any of the contraband that had been located and connected to
him through police investigations.127 Here, the defense strategy was not to claim
that the substances seized were not, in fact, heroin but instead to distance Tingle
125
See, Def. App. 191, 195.
126
Trial Counsel Affidavit in response to Rule 61 motion, at ¶¶ 13-15.
127
Id.24
from the drugs.128 The defense strategy was to claim that Dunfee was the drug
dealer and Tingle had nothing to do with the drugs.
Trial counsel was not deficient in failing to request the litigation packet for
the lab reports determining the substance seized was heroin. Moreover, Tingle did
not sustain his burden of establishing any actual prejudice as a result thereof. This
claim is without merit.
Claim IV: Failure to Meaningfully Challenge the State’s Drug Dealing Expert
Tingle contends that trial counsel was ineffective for failing to challenge the
State’s drug dealing expert as to his conclusions pertaining to Tingle’s and
Dunfee’s respective roles.
Trial counsel filed a motion to suppress Detective Stewart’s testimony, the
State’s drug dealing expert, due to the late identification of this witness.129 The
Court denied trial counsel’s motion to exclude Detective Stewart’s testimony but
ruled it could not be cumulative or duplicative of the testimony of the investigating
officers.130
During Detective Stewart’s direct examination, he was asked to distinguish
between drug dealers and drug users.131 Trial counsel objected to this line of
128
Id.129
Def. App. 132-134.
130
Def. App. 197-198.
131
Def. App. 433.
25
questioning as outside the scope of his disclosed testimony.132 The Court agreed
with the State that it was standard testimony of a drug expert to distinguish
between dealers and users.133
Detective Stewart testified that it was his opinion, based on the totality of the
circumstances, that Tingle was engaged in drug dealing.134 He was not asked
specifically if Dunfee was also a drug dealer. The State asked Detective Stewart if
he was to focus just on the small amount of heroin found in Dunfee’s bedroom,
would he be able to form an opinion as to whether Dunfee was a drug user.
Detective Stewart responded that while it was possible that Dunfee was a drug
user, Detective Stewart was unable to form an opinion as to whether he was based
on the small amounts of heroin found in his bedroom.135
The Superior Court held that Detective Stewart was not exceeding the scope
of his disclosure by distinguishing between drug dealers and drug users. He
testified that Tingle was a drug dealer. He did not formulate any opinion as to
whether Dunfee was a drug user, a drug dealer, or both.
Trial counsel was not deficient in his handling of the examination of
Detective Stewart. He first sought to have Detective Stewart’s testimony excluded
in its entirety due to the late identification of him as a witness, and when he did not
132
Def. App. 434.
133
Def. App. 434.
134
Def. App. 454-456.
135
Def. App. 457.
26
prevail on that motion, he conducted an extensive cross-examination and did what
he could to elicit favorable testimony.136
Trial counsel was not deficient in this regard. Moreover, Tingle cannot
sustain his burden to establish actual prejudice as a result of the admission of this
testimony. This claim is without merit.
Claims V and VI: Failing to Substantively Meet with Tingle
In Claim V and VI, Tingle contends that trial counsel was ineffective by
failing to have any meaningful discussion with him about his testimony prior to
taking the stand.
Tingle’s trial counsel advised that Tingle’s trial testimony was not reviewed
at length prior to his taking the stand because it was clear that Tingle would be
taking the same position that he had taken at all stages of pretrial proceedings: that
he was in no way responsible for any of the contraband that had been located and
connected to him through police investigations.137 A review of Tingle’s trial
testimony reveals that trial counsel conducted a full and thorough direct
examination that clearly and cogently laid out Tingle’s version of the case.138 At
all stages of trial, trial counsel represented Tingle as vigorously as possible while
136
Def. App. 458-477.
137
Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶¶ 15, 19.
138
Def. App. 515-542.
27
trying to implement Tingle’s chosen “all or nothing” defense.139 In fact, through
the advocacy of Tingle’s trial counsel, Tingle was found not guilty of PFDCF, a
serious charge.
The State’s theory at trial was that Tingle was a drug dealer. Dunfee was his
employee, the rental car and drug paraphernalia were tools of his trade, the drugs
were the product he was selling, the cash was his profit, and the firearm was his
security.140
As to Claim V, Tingle claims that his trial counsel’s failure to anticipate and
respond to the hearsay objection as to the ownership of the gun at issue removed a
viable defense from the jury’s consideration and that his subsequent conviction for
PFBPP was directly linked to this testimony.
Tingle is incorrect in this regard. The hearsay objection did not impact
Tingle’s testimony in any respect, and it did not remove “a viable defense from the
jury’s consideration.” On direct examination, Tingle started to inject some hearsay
testimony about what Dunfee told him about the gun at issue.141 The hearsay
objection was addressed.142 Tingle’s trial counsel then elicited the same testimony
regarding the ownership of the gun from Tingle without any hearsay issues. Tingle
testified on direct examination that he had never previously seen the firearm in
139
Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶ 19.
140
Def. App. 575-576.
141
Def. App. 531-532.
142
Def. App. 534-535.
28
Dunfee’s bedroom until Dunfee showed it to him. That was the first time he ever
saw it. And that Tingle had no knowledge of the firearm.143
The record reflects that Tingle’s position on this issue was not impacted in
any way by the hearsay objection and thereafter rephrasing of the question to elicit
the same testimony.
In Claim VI, Tingle contends that his counsel was ineffective and that he
suffered prejudice by trial counsel failing to prevent the admission of his prior
convictions under Delaware Uniform Rules of Evidence (“D.R.E.”) 609.
Following the close of the State’s case, and before Tingle made the decision
as to whether or not he wanted to testify, there was a hearing on the admissibility
of Tingle’s multiple felony convictions.144 The State outlined Tingle’s prior
convictions that it was seeking to introduce at trial under D.R.E. 609 should Tingle
decide to testify. The State advised that it was seeking to introduce his convictions
within the last ten years of: Burglary Second Degree- a crime of dishonesty,
PFDCF, Conspiracy in the Second Degree and Maintaining a Vehicle. It was also
seeking to introduce older crimes of dishonesty: convictions of burglary second
degree from 1996, attempted theft and felony theft from 1996, receiving stolen
property felony conviction from 1996, and attempted theft misdemeanor from
1996.
143
Def. App. 535.
144
Def. App. 483-487.
29
Tingle’s trial counsel objected to the admissibility of the crimes of
dishonesty that did not fall into the ten-year window as being unduly prejudicial.145
The Court agreed with Tingle’s trial counsel and held that the crimes of dishonesty
more than ten years old would not be admissible at trial.146
Tingle’s trial counsel represented that he had met with Tingle on numerous
occasions and has discussed with him the consequences that his criminal record
may have on his trial testimony, should he elect to testify at trial.147 That whatever
decision Tingle made as to whether or not to testify, it was being made on a
knowing, voluntary and intelligent basis, and that he was fully advised of his
rights.148
Prior to Tingle making his decision, the Court also advised Tingle that if he
chose to testify the jury was going to hear about his crimes of dishonesty.149 The
Court then engaged in a colloquy with Tingle during which Tingle advised that he
knew the jury was going to hear about his prior crimes of honesty. That he had
decided to testify in his own defense. That he had discussed this with decision
with his attorney and that he, alone, was making this decision for himself.150
145
Def. App. 486.
146
Def. App. 486-487.
147
Def. App. 485-486.
148
Def. App. 485-486.
149
Def. App. 487.
150
Def. App.487-489.
30
In this case, after a discussion about his prior convictions and a colloquy
with the Court, Tingle made the decision to waive his right to remain silent and
chose to testify. The Court found Tingle’s decision to be knowing, intelligent and
voluntary.151 Prior to Tingle testifying, the State reiterated that all four of Tingle’s
felony convictions within the last ten years were admissible for impeachment.152
Tingle was aware that all four of his felony convictions within the last ten
years were admissible for impeachment at trial. The State reiterated that fact
immediately before Tingle took the stand to testify.
In order to prevail on a claim of ineffective assistance of counsel, the
defendant must demonstrate that, but for counsel’s alleged error, he would have
been acquitted.153 If substantial evidence exists that supports the defendant’s
conviction, the defendant’s claim is undermined.154
In this case, to the extent there was any error in the admission of his prior
felony convictions, any such error was harmless. The fact that he was previously
convicted of PFDCF did not prejudice the jury in this case because the jury
acquitted him of the PFDCF charge in this case. In this case, substantial evidence
existed that supported the verdict in this case on all the charges.
151
Def. App. 488.
152
Def. App. 488-489.
153
Couch v. State, 945 A.2d 593 (Del. 2008).
154
Id.31
Trial counsel was not deficient and based on the abundance of evidence
presented at trial, Tingle cannot meet his burden to show actual prejudice as a
result thereof. This claim is without merit.
Claim VII: Trial Counsel’s Relationship was Broken/Social Media Postings
Tingle claims that he suffered prejudice by having trial counsel represent
him after their relationship was irretrievably broken.
Although Tingle contends that there was a complete breakdown of the
attorney-client relationship, the record does not reflect a breakdown. Trial counsel
represents that at all stages of the trial, counsel represented Tingle as vigorously as
possible while trying to implement Tingle’s chosen “all or nothing” defense.155
Trial counsel represents that during conversations and in correspondence to
Tingle, counsel repeatedly explained the nature of the evidence against Tingle, and
the possible penalties that were entailed should he be convicted at trial.156 Trial
counsel represents that Tingle actively participated in all stages of trial and was
given every opportunity to request that counsel further probe witnesses on cross-
examination. Tingle took advantage of this at times and at other times declined to
do so.157
155
Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶ 19.
156
Id. at ¶ 10.
157
Id. at ¶ 20.
32
The record reflects that defense counsel consistently, vigorously and
diligently defended the charges against Tingle. Defense counsel made tactical
decisions regarding evidentiary issues, vigorously cross-examined the State’s
witnesses, and vigorously defended Tingle.
Prior to trial, Tingle was offered a plea with a sentence recommendation of
27 years of prison time, 25 years of which was mandatory. Tingle rejected the plea
offer and proceeded to trial. Through trial counsel’s advocacy, Tingle was found
not guilty of PFDCF, and ultimately sentenced to 20 years of unsuspended prison
time, 17 years of which was mandatory. Tingle achieved a better result at trial than
the best plea offered by the State. Whatever tactical and strategic decisions resulted
in the verdict, when reviewing the entire proceeding, the record reflects counsel’s
overall performance as being active, diligent, thorough and capable advocacy.
Tingle’s disgruntlement with his trial counsel appears to be driven by his
disappointment with the trial result. The jury did not accept his “all or nothing”
defense that he was just at the wrong place at the wrong time.
It is difficult to establish an ineffective assistance of counsel claim when
counsel’s overall performance indicates active and capable advocacy.158
158
Harrington v. Richter, 131 S.Ct. 770, 791 (2011).
33
Specifically, Tingle claims that his expression of dissatisfaction on the
morning the trial was set to begin, along with trial counsel’s handling of Dunfee’s
affidavit, and trial counsel’s private social media posts establish that their
relationship was irretrievably broken.
As to Tingle’s comments on the morning the trial was scheduled to begin,
Tingle expressed dissatisfaction with his trial counsel’s inability to give “definite
answers to yes or no questions” about what might occur during the trial.159 Trial
counsel explained that “with certain questions about how things will be done at
trial, there is not a way to answer it 100 percent in the affirmative or negative.
Largely, it is dependent on what the evidence and testimony on record reveals that
will inform certain decisions that are made.160
On direct appeal, Tingle claimed that the Superior Court erred when it
denied his 11th-hour request for a continuance so that he could fire his privately
retained counsel to hire another lawyer.161 The Delaware Supreme Court found no
merit to Tingle’s claims and affirmed the Superior Court’s judgment.
The Delaware Supreme Court determined that the denial of a continuance
for change of counsel on the eve of trial is not an abuse of discretion when 1) there
had been no previous complaint about counsel; 2) the defendant had a prior
159
Def. App. 201-204.
160
Def. App. 202-203.
161
Tingle v. State, 2019 WL 2079060 (Del.).
34
opportunity to obtain substitute counsel; and 3) obtaining substitute counsel was
uncertain and appeared to be a dilatory tactic.162
The Delaware Supreme Court held that, in this case, Tingle had not
expressed any prior dissatisfaction with trial counsel until the day of trial. Tingle
had the opportunity to replace his privately retained counsel seven months before
trial, and a continuance on the day of trial would have unnecessarily delayed the
trial.163 Tingle did not indicate a breakdown in communication or irreconcilable
conflicts with trial counsel. He never stated that he wanted to fire his counsel and
proceed pro se.
Tingle hired trial counsel in May 2017, seven months before trial.164 He had
the means to hire his attorney, he also had the means to fire his attorney and hire a
new one. Tingle provides no explanation as to why, if the relationship with trial
counsel was genuinely irretrievably broken, he had not replaced him prior to trial.
Turning to the issue of Dunfee’s affidavit, Tingle argued that Dunfee’s
affidavit and trial counsel’s failure to attempt to introduce it at trial, was fatal to
their relationship.
In September 2017, after this case was indicted, the State met with Dunfee.
Dunfee admitted to being a heroin user, and said he met Tingle because Tingle sold
162
Tingle v. State, 2019 WL 2079060, *3 (Del.).
163
Id.164
Def. App. 39.
35
drugs to him. The relationship escalated to Dunfee becoming Tingle’s employee
and Tingle giving Dunfee drugs to move for him. Dunfee would go with Tingle to
Philadelphia, where Tingle would get $17,000 worth of heroin every other week to
distribute to people in Delaware.165 Dunfee also talked about the Desert Eagle
firearm. He said the gun was Tingle’s and that Tingle gave it to him to keep safe.
Dunfee stated that he thought he was supposed to be the coverup for the gun. The
one to take the rap and take the gun charge.166
In October 2017, the State received an email from trial counsel that attached
an affidavit from Dunfee. The affidavit was not dated and directly contradicted the
recorded statement given to law enforcement.167 In the affidavit from Dunfee, he
admitted that the drugs at issue belonged to him, not Tingle.168 This affidavit, and
whether trial counsel would attempt to admit it, Tingle claims were “fatal” to the
relationship between Tingle and his attorney.169
Trial counsel represented that he did not attempt to admit the affidavit
because it directly contradicted Dunfee’s previously recorded statement and would
have further served to undermine Tingle’s goal of seeking a not guilty verdict as to
165
See, Def. App. 770-771.
166
See, Def. App. 770-771.
167
State’s supplemental response to Rule 61 motion dated June 17, 2022, * 1-2.
168
Tingle’s Amended Motion for Postconviction Relief, at *113.
169
Id.36
all counts.170 Trial counsel had discussions with Tingle about Dunfee’s affidavit
prior to trial.171
In addition to tactical considerations that it would be better not to use the
affidavit, trial counsel also had serious concerns that offering the affidavit would
be a violation of Delaware Lawyers’ Rule of Professional Conduct 3.3.(a)(3),
which mandates that counsel not offer testimony that the lawyer knows to be
false.172
Trial counsel made the strategic choice not to seek to admit the affidavit.173
Great weight and deference are given to tactical decisions by the trial attorney.
There is a strong presumption that counsel’s conduct was reasonable and
constituted sound trial strategy.174 Trial counsel must be given wide latitude in
making tactical decisions.175 Defense counsel was not ineffective in his tactical
decision in this regard.
In addition, it appears that the affidavit was inadmissible hearsay that could
not be introduced at trial. Dunfee, an indicted co-defendant, was scheduled for
170
Trial Counsel’s Affidavit in response to Rule 61 Motion, at ¶¶ 17-18.
171
Id. at ¶ 18.
172
Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
173
Id.
174
Harrington v. Richter, 131 S.Ct. 770 (2011); Outten v. State, 720 A.2d 547, 557 (Del. 1998);
Strickland v. Washington, 466 U.S. 668, 689 (1984).
175
Id.37
trial on the same day as Tingle. However, he failed to appear on the trial date and
a capias was issued.176
Despite Tingle’s disappointment that Dunfee’s affidavit would not be used
at trial, the record does not reflect that there was a complete breakdown in the
attorney-client relationship as a result thereof.
Finally, Tingle complains about trial counsel’s social media posts.177 Tingle
does not argue that trial counsel’s social media posts led to Strickland prejudice,178
but argues that it is proof of a breakdown in the attorney-client relationship.
There is no denying, and trial counsel does not deny, that the social media
posts were a “lapse in judgment.” However, trial counsel explains that these three
posts were made on his private, not public, social media page and only accessible
to a limited audience.179 While there is no question that these social media posts
are inappropriate, they do not appear to be violative of the Delaware Lawyers’
Rules of Professional Conduct or ABA standards because there is no evidence that
they had a substantial likelihood of prejudicing the trial.180
176
Def. App. 185-186.
177
See, Def. App. 955-957.
178
See, Rule 61 Counsel’s June 17, 2022, Supplemental Submission, at *9.
179
Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
180
See, DLRPC R. 3.6(a) and ABA Standards for Criminal Justice Defense Function R. 4-1.4 (3d
ed. 1993).
38
Given the limited audience, there is no evidence that the posts had a
substantial likelihood of prejudicing the trial. Further, there were no specific
details mentioned. The posts did not contain the defendant’s name, the charges,
the court nor the county where the case was being tried. 181
Tingle does not contend he was prejudiced at trial by these posts. He just
references these posts as a reflection of the breakdown in communication.
The Court does not agree that the social media posts reflect a breakdown in
communication. The record reflects to the contrary. The record reflects that trial
counsel did provide active, diligent, thorough, and capable advocacy. The social
media posts reflect that trial counsel recognized that the evidence against his client
was overwhelming and that his client was unlikely to be successful at trial.182 Of
course, social media posts are not the forum to privately express frustrations.
Whether trial counsel’s remarks should result in an extra-judicial disciplinary
181
Trial Counsel’s supplemental submission dated April 20, 2022, at pgs. 1-2.
182
There are a total of three posts.
The first, dated January 5, 2018 states: “Day two of rearranging the deck chairs of the Titanic,
i.e. the case I’m trying.” Def. App. 955.
The second, dated January 9, 2018 states: “Well, we closed and charged the jury in the case I’ve
been in trial with since last Wednesday. The jury left the court to deliberate around twenty after
twelve this afternoon. They’re still out. I’m a little surprised that they’re taking this long. Who
knows, maybe that means I’ve won on a charge or two.” Def. App. 956.
The third, dated January 9, 2018 states: “Update, jury was out 3 hours deliberating. Returned
verdicts of guilty on all but two counts.” Def. App. 957.
39
finding is not the issue presently to be decided in this Rule 61 motion. This Rule
61 motion is not the appropriate venue to redress such grievances.
Trial counsel was not deficient in his representation of Tingle and Tingle has
failed to establish actual prejudice as a result of any alleged deficiency.
CONCLUSION
Tingle has failed to meet his burden to establish that trial counsel’s conduct
was deficient, and he has failed to establish actual prejudice as a result of any
alleged deficiency. Tingle’s ineffective assistance of counsel claims are without
merit.
For all of the foregoing reasons, Tingle’s Motion for Postconviction Relief
should be DENIED.
IT IS SO RECOMMENDED.
/s/ Lynne M. Parker
Commissioner Lynne M. Parker
cc: Prothonotary
Marc Wienkowitz, Esquire
40