Summary
The Delaware Supreme Court affirmed Thomas Fedorkowicz’s convictions for attempted first-degree robbery, first-degree assault, and second-degree conspiracy. The court rejected claims of insufficient evidence, double jeopardy, and lack of access to a surveillance videotape, and granted the State’s motion to affirm under Supreme Court Rule 26(c).
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Practice areas
Questions Presented
- Whether sufficient evidence supported Fedorkowicz's convictions for attempted first-degree robbery and first-degree assault.
- Whether the attempted robbery and assault convictions violated double jeopardy because the offenses should have merged for sentencing.
- Whether Fedorkowicz's claim that he was not permitted to view the surveillance videotape before trial warranted relief on direct appeal.
- Whether counsel satisfied the requirements for withdrawal under Delaware Supreme Court Rule 26(c) and whether the appeal contained any arguably appealable issue.
Holdings
- The evidence was sufficient to support both convictions because Fedorkowicz admitted attempting to steal the band saw, and the victim's testimony and resulting serious injury supported the robbery and assault elements.
- The convictions did not violate double jeopardy and were not required to merge for sentencing because attempted robbery and first-degree assault involve fundamentally different elements of proof.
- The claim did not warrant relief on direct appeal. To the extent it asserted ineffective assistance of counsel, it could not be considered for the first time on direct appeal.
- Counsel satisfied Rule 26(c), and the appeal was wholly devoid of any arguably appealable issue; therefore, the State's motion to affirm was granted and the judgment was affirmed.
Key quotations
“Although physical injury may be an element of first degree robbery in some cases, it need not be caused intentionally or recklessly as in first degree assault.” (988 A.2d at 938)
“the crimes involve fundamentally different elements of proof.” (988 A.2d at 938)
Factual background
Fedorkowicz entered a Home Depot in Newark, Delaware, intending to steal a Milwaukee band saw. As he fled without paying, a loss-prevention employee attempted to stop him; Fedorkowicz kicked the employee's hand, dropped the saw, and escaped in a Jeep driven by his girlfriend. The employee sustained two broken bones in his hand. At trial, Fedorkowicz admitted attempting to steal the saw but denied kicking the employee, and the prosecution introduced surveillance videotape that defense counsel stated he had reviewed without objection.
Procedural history
Fedorkowicz was convicted in the Delaware Superior Court of attempted first-degree robbery, first-degree assault, and second-degree conspiracy. He was resentenced on April 3, 2009, to permit a timely appeal. On direct appeal, counsel asserted that no arguably appealable issue existed, while Fedorkowicz submitted pro se claims concerning sufficiency of the evidence, double jeopardy, and access to a surveillance videotape. The Supreme Court of Delaware granted the State's motion to affirm, affirmed the judgment, and deemed the motion to withdraw moot.