State v. Boone

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, )
)
)
v. ) I.D No. 1305018893
)
)
KEVIN H. BOONE, )
)
Defendant. )

ORDER

Submitted: February 5, 20201
Decided: May 12, 2020

AND NOW TO WIT, this 2nd day of June, 2020, upon consideration of

Defendant Kevin H. Boone’s (“Defendant”) Motion for Return of Property the

sentence imposed upon Defendant, and the record in this case, it appears to the Court

that:

1. On December 12, 2013, Defendant pled guilty to one count of Dealing

in Child Pornography and three counts of Possession of Child

1
The United States of America and the State of Delaware declared states of emergency due to
COVID-19. As a result, per Administrative Directives of the Supreme Court of the State of
Delaware and the Delaware Superior Court, and the national and local states of emergency,
“[e]xcept as set forth in 10 Del. C. § 2007(c), deadlines in court rules or state or local statutes and
ordinances applicable to the judiciary that expire between March 23, 2020 and June 13, 2020 are
extended through July 1, 2020.” Administrative Order No. 6 Extension of Judicial Emergency
(Del. May. 14, 2020); see also Standing Order No. 6 Concerning COVID-19 Precautionary
Measures (Del. Super. Ct. Apr. 15, 2020).
Pornography.2 Defendant was sentenced to twenty-four years at Level V, suspended

after three years at Level V for transitioning levels of probation. 3

2. On December 20, 2017, this Court found Defendant to be in violation

of probation.4 On the same day, at Defendant’s Violation of Probation (“VOP”)

Hearing, Defendant was resentenced to twelve years at Level V, suspended upon

Defendant’s successful completion of the Transitions Sex Offender Program,

followed by two and a half years of transitioning levels of probation.5 On February

23, 2018, Defendant filed a Motion under Rule 35(b) for Reduction of Sentence.6

Defendant’s Motion was denied.7 On May 4, 2018, Defendant filed a Motion under

Rule 35(a) for Correction of Sentence claiming his sentence was illegal.8

2
See Trial Calendar/ Plea Hearing: Pled Guilty and Sentenced, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 11 (Del. Super. Ct. Dec. 12, 2013); see also Sentence: ASOP
Order Signed and Filed 12/20/13, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I.
12 (Del. Super. Ct. Dec. 12, 2013).
3
Special conditions of his probation included no unsupervised contact with minors under eighteen
years of age and prohibited Defendant from internet access.
4
See Violation-of-Probation Hearing: Defendant Found in Violation, State of Delaware v. Kevin
H. Boone, ID No. 1305018893, D.I. 20 (Del. Super. Ct. Dec. 20, 2017). Defendant allegedly: (1)
made contact with a minor via a personal ad posted on Craigslist; (2) had contact with a fourteen-
year-old male minor, traveled out of state with him; (3) engaged in sexual activity with that minor
in both Delaware and Pennsylvania in September and October 2017.
5
See Sentence: VOP ASOP Order Signed and Filed on 12/28/17, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 21 (Del. Super. Ct. Dec. 20, 2017).
6
See Defendant’s Motion for Reduction of Sentence, State of Delaware v. Kevin H. Boone, ID No.
1305018893, D.I. 22 (Del. Super. Ct. Feb. 23, 2018).
7
See Letter Order, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 23 (Del. Super.
Ct. Apr. 17, 2018).
8
See Defendant’s Motion for Correction of Sentence, State of Delaware v. Kevin H. Boone, ID
No. 1305018893, D.I. 24 (Del. Super. Ct. May 4, 2018).
Defendant’s Motion was denied.9 Defendant appealed to the Delaware Supreme

Court.10 The Supreme Court affirmed the Superior Court’s denial of Defendant’s

Motion.11

3. On November 1, 2018, Defendant filed a Motion for Postconviction

Relief.12 On December 23, 2019, Defendant’s Motion was denied.13 Defendant also

sought relief under 42 U.S.C. § 1983. On April 24, 2019, the United States District

Court for the District of Delaware dismissed Defendant’s federal action as legally

frivolous and without merit.14 On May 6, 2019, Defendant filed Petition for a Writ

of Habeas Corpus.15 On May 9, 2019, Defendant’s petition was denied.16 On May

20, 2019, Defendant filed a Letter claiming again that his 2017 VOP sentence was

9
The Court held that Defendant’s sentence did not exceed the statutory maximum, did not
implicate double jeopardy, and was neither ambiguous nor contradictory. See Letter/Order, State
of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 25 (Del. Super. Ct. May 30, 2018).
10
See Notice of Appeal, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 26 (Del.
Super. Ct. June 28, 2018).
11
See generally Boone v. State, 195 A.3d 481, 2018 WL 4908383 (Del. 2018) (TABLE) (affirming
denial of Defendant’s motion for correction of illegal sentence); see also Mandate Filed from
Supreme Court: Superior Court Judgment Affirmed, State of Delaware v. Kevin H. Boone, ID No.
1305018893, D.I. 32 (Del. Oct. 29, 2018).
12
See Defendant’s Motion for Postconviction Relief, State of Delaware v. Kevin H. Boone, ID No.
1305018893, D.I. 33 (Del. Super. Ct. Nov. 1, 2018).
13
See Order Denying Defendant’s Motion for Postconviction Relief, State of Delaware v. Kevin
H. Boone, ID No. 1305018893, D.I. 54 (Del. Super. Ct. Dec. 23, 2019).
14
See generally Boone v. Prob. & Parole of New Castle Cty., DE, No. CV 18-1663 (MN), 2019
WL 1792300 (D. Del. Apr. 24, 2019).
15
See Petition For Writ of Habeas Corpus, State of Delaware v. Kevin H. Boone, ID No.
1305018893, D.I. 42 (Del. Super. Ct. May 6, 2019).
16
See Order, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 45 (Del. Super. Ct.
May 9, 2019); see also Petition For Writ of Habeas Corpus Denied, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 46 (Del. Super. Ct. May 9, 2019).
illegal.17 On August 15, 2019, Defendant filed a Motion to File Charges on

Probation Officer also in this Court.18 Defendant’s Motion was denied.19

4. On February 5, 2020, Defendant filed this Petition for Return of

Property pursuant to Superior Court Criminal Rule 41(e).20 Defendant claims that

the State21 conducted two searches of his residences in 2017,22 and that during one

of these searches, the State illegally “seized an orange folder belonging to the

[Defendant], containing both personal financial and medical documentation.”23 He

requests that the Delaware State Police return the Defendant’s folder and its

contents.24

5. Under Superior Court Criminal Rule 41(e), “[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.”25 The Delaware Supreme Court has held that “a petition for return of

17
See Defendant’s Letter, State of Delaware v. Kevin H. Boone, ID No. 1305018893, D.I. 47 (Del.
Super. Ct. May 20, 2019).
18
See Defendant’s Motion to File Charges on Probation Officer, State of Delaware v. Kevin H.
Boone, ID No. 1305018893, D.I. 49 (Del. Super. Ct. Aug. 15, 2019).
19
See Motion to File Charges on Probation Officer is Denied, State of Delaware v. Kevin H. Boone,
ID No. 1305018893, D.I. 53 (Del. Super. Ct. Nov. 15, 2019) (denying Defendant’s Motion for
failure to state a claim for relief under Superior Court Civil Rule 12(b)(6)).
20
See generally Defendant’s Motion for Return of Property, State of Delaware v. Kevin H. Boone,
ID No. 1305018893, D.I. 55 (Del. Super. Ct. Feb. 5, 2020) [hereinafter “Def.’s Mot.”].
21
The State being (1) New Castle County Probation and Parole, and (2) Delaware State Police.
22
Def.’s Mot. at ¶¶ 1-2.
23
Id. at ¶ 3.
24
See generally id.
25
DEL. SUPER. CT. CRIM. R. 41(e).
property under Superior Court Criminal Rule 41(e) must be filed within a year of the

defendant's criminal sentencing.”26 Defendant’s last sentence on his VOP was on

December 20, 2017. The Court finds that the motion, filed on February 5, 2020, is

untimely. Therefore, Defendant is procedurally barred.

IT IS SO ORDERED that Defendant’s Motion for Return of Property is

DENIED.

/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge

oc: Prothonotary
cc: Department of Justice
Investigative Services
Defendant

26
Buchanan v. State, 998 A.2d 850, 2010 WL 2680539 (Del. 2010) (TABLE) (citing Crawford v.
State, 859 A.2d 624, 626, 28 (Del. 2004) (quoting 10 Del. C. § 8115) (applying 10 Del. C. § 8115
to a return of property application, whereby “the statute requires that an action for forfeiture upon
a penal statute must be filed within one year ‘from the accruing of the cause of action.’”)).