Opinion
No. 550, 1999
Decided: June 21, 2000
Superior (Sussex) CrA 97-11-0484.
Affirmed.
Unpublished Opinion is below.
LAREN HARRIS, Defendant Below, Appellant v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 550, 1999 In the Supreme Court of the State of Delaware Submitted: May 11, 2000 Decided: June 21, 2000
Before WALSH, HOLLAND and HARTNETT, Justices.
ORDER
This 21st day of June 2000, upon consideration of the briefs on appeal and the Superior Court record, it appears to the Court that:
(1) The defendant-appellant, Laren Harris (Harris), filed this appeal from an order of the Superior Court denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (Rule 61). We find no merit to the appeal. Accordingly, we AFFIRM.
(2) On December 15, 1997, Harris was indicted by a Sussex County grand jury on charges of Robbery in the First Degree, Burglary in the Second Degree, and Offensive Touching. Merritt Burke, Esquire (Burke), an Assistant Public Defender, was assigned to represent Harris.
(3) On March 27, 1998, Harris entered a Robinson plea to the lesser included offense of Robbery in the Second Degree. The State entered a nolle prosequi on the remaining charges. At the plea hearing, Harris was represented by Karl Haller, Esquire (Haller), an Assistant Public Defender and a colleague of Burkes.
Robinson v. State, Del. Supr., 291 A.2d 279 (1972) (permitting Superior Court to accept guilty plea where guilt of offense charged is not admitted).
The record does not reflect why Burke did not represent Harris at the guilty plea proceeding. In his motion for postconviction relief, Harris states that Burke was downstairs in a different court.
(4) Pursuant to the plea agreement, Harris was sentenced immediately to three years at Level V, with credit for time served, suspended for six months at Level III, followed by two years at Level II. Harris did not file an appeal.
The plea agreement was entered pursuant to Superior Court Criminal Rule 11(e)(1)(C).
(5) Twice in July 1999 and once in August 1999, the Superior Court found Harris guilty of violation of probation (VOP). Upon each VOP conviction, the Superior Court reimposed three years at Level V, with credit for time served, and suspended the Level V prison time for probation.
(6) In September 1999, the Superior Court, for the fourth time, adjudged Harris guilty of VOP. The Superior Court sentenced Harris to three years at Level V, with credit for time served, suspended upon successful completion of either the Tempo or Educational Jail South programs, for two years at Level III.
(7) In October 1999, Harris moved for postconviction relief. By order dated November 4, 1999, the Superior Court denied the motion. This appeal followed.
(8) In his postconviction motion, Harris claimed that his Robinson plea was involuntary because neither the Superior Court nor Haller informed him of certain conditions of the plea. Harris also claimed that Haller was unprepared at the plea proceeding and thus rendered ineffective assistance of counsel.
(9) On appeal, Harris claims that the Superior Court did not inform him of certain direct consequences of his Robinson plea. On appeal, Harris claims that it was Burke, and not Haller, who was ineffective.
(10) In his opening brief on appeal, Harris lists numerous incidents of alleged ineffective assistance of counsel on the part of Burke. In support of his ineffective assistance of counsel claim, Harris references the plea colloquy where he informed the Superior Court that he was dissatisfied with his counsel.
Harris alleges that Burke: (i) violated the Delaware Lawyers' Rules of Professional Conduct; (ii) authorized a preliminary hearing; (iii) advised against filing a motion for bail reduction; (iv) failed to arrange for Harris' presence at the bail reduction hearing; (v) failed to object to a prosecutor's comments about a non-existent North Carolina drug charge; (vi) lied to Harris' father; (vii) withheld the State's plea offer for his own convenience; (viii) withheld discovery information until five days before the entry of the plea; (ix) advised Harris that legal work would be of no use in court; (x) claimed he was not preparing for trial; (xi) advised Harris' parents that Harris would have to do the trial preparation legwork; (xii) never objected to the State's requests for continuance; (xiii) refused to discuss the continuances with Harris; (xiv) failed to respond to Harris' letters; and (xv) spoke with Harris for no more than 20 minutes in a four-month period.
The record reflects that Harris also indicated his dissatisfaction with his counsel on the guilty plea form.
During the plea colloquy, the following exchange took place:
THE COURT: Are you satisfied with your lawyers, Mr. Haller and Mr. Burke?
THE DEFENDANT: I was not at all satisfied with Mr. Burke. No, sir, I wasn't.
THE COURT: Are you satisfied with Mr. Haller?
MR. HALLER: I have only spoken with him briefly. I did speak to you down at S.C.I.
THE COURT: Anything about your dissatisfaction with Mr. Haller and Mr. Burke that causes you not to do what you are doing today?
THE DEFENDANT: To cause me to not do what I am doing today?
THE COURT: In other words, is the dissatisfaction such that you don't want to enter this plea?
THE DEFENDANT: Oh, no, sir.
THE COURT: Do you understand that even though you might be dissatisfied with them, if I accept this plea, you can't come back later and say, I changed my mind. I didn't like my lawyer or they didn't do this, that, or the other?
THE DEFENDANT: Yes, sir.
THE COURT: Is anybody forcing you to enter the plea?
THE DEFENDANT: No.
THE COURT: Is this your personal decision?
THE DEFENDANT: Yes.
THE COURT: I accept the plea as knowingly, voluntarily, and intelligently offered.
(11) In the context of a guilty plea, a successful claim of ineffective assistance of counsel is one that demonstrates that (i) A counsel's representation fell below an objective standard of reasonableness; and (ii) counsel's actions were so prejudicial that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. To avoid summary dismissal of an ineffective assistance of counsel claim, a defendant must make concrete allegations of actual prejudice and substantiate those allegations.
Somerville v. State, Del. Supr., 703 A.2d 629, 631 (1997) (citations omitted).
Id. at 632 (citing Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990)).
(12) In this case, Harris cannot demonstrate that Burke's actions were so prejudicial that, but for Burke's alleged errors, Harris would not have pleaded guilty and would have insisted on going to trial. To the contrary, it is clear that Burke's alleged deficiencies were known to Harris at the time of the plea colloquy. Nevertheless, Harris chose to enter the Robinson plea, even after the Superior Court informed him that he could not later complain about his attorney's performance.
(13) Harris claims that the Superior Court did not inform him of certain direct consequences of his guilty plea. Specifically, Harris complains that the Superior Court did not inform him (i) of the statutory sentencing range for Second Degree Robbery; (ii) that he would be subject to Operation Safe Streets (OSS) under which he could be immediately arrested and incarcerated if he violated probation; and (iii) that the Superior Court could reimpose any previously suspended prison term if he violated probation.
Operation Safe Streets is a state-wide joint police and probation program that is designed to apprehend offenders who are not complying with the terms of their probation.
(14) Harris is correct that the sentencing judge did not inform Harris of the statutory sentencing range for Second Degree Robbery. Furthermore, although not raised by Harris in either the Superior Court or on appeal, it appears from the record that Harris was, in fact, misinformed by Burke and Haller as to the statutory sentencing range for Second Degree Robbery.
(15) The standard guilty plea form that Harris and Burke completed and signed, and that Haller submitted to the Superior Court, included blanks for Harris answers to yes/no questions and blanks on which to write the offense, statutory penalty and Truth-in-Sentencing (TIS) Guideline. Harris testified at the guilty plea colloquy that he wrote in the answers to the yes/no questions. It appears that Burke filled in the blanks calling for the offense, statutory penalty and the TIS guideline. In those blanks, Burke incorrectly indicated that the statutory penalty range for Second Degree Robbery was zero to ten years. The statutory penalty range for Second Degree Robbery was, and is, zero to five years.
11 Del. C. — 831, 4205(b)(2)(5).
(16) It is clear that the trial judge should have interrogated Harris personally concerning the statutory penalty range for Second Degree Robbery. Furthermore, it is unfortunate that Harris received misinformation from his counsel, Burke and Haller, as to the statutory penalty range for Second Degree Robbery. Nonetheless, it does not appear that Harris was prejudiced as a result of the Superior Court's oversight and his counsel's mistake. The plea agreement that was entered into by the parties, and that was imposed by the Superior Court, sentenced Harris to three years at Level V, immediately suspended for probation. Had Harris gone to trial and been convicted of Second Degree Robbery, he could have been sentenced to five years at Level V. Furthermore, Harris could have received an even greater sentence had he gone to trial on, and been convicted of, the original charges of Robbery in the First Degree, Burglary in the Second Degree, and Offensive Touching.
Wells v. State, Del. Supr., 396 A.2d 161 (1978); Brown v. State, Del. Supr., 250 A.2d 503 (1969); Superior Court Criminal Rule 11.
(17) In this case, notwithstanding the error on the guilty plea form and despite the Superior Court's oversight, Harris was sentenced within the statutory limits for Second Degree Robbery. Consequently, Harris was not prejudiced by the error on the form or by the Superior Court's oversight, and he has failed to demonstrate manifest injustice to permit withdrawal of his guilty plea.
See Smith v. State, Del. Supr., 451 A.2d 837 (1982) (setting forth the manifest injustice standard when considering whether to allow a defendant to withdraw a guilty plea).
Allen v. State, Del. Supr., 509 A.2d 87 (1986); see also Keel v. United States, 5th Cir., 585 F.2d 110, 114 (1978) (finding, in a collateral attack on a guilty plea, that although the trial judge had overstated the maximum penalty the defendant could receive while accepting the defendant's guilty plea, this technical violation did not prejudice the defendant).
(18) A judge who accepts a guilty plea must be satisfied that the guilty plea is entered knowingly and voluntarily. To ensure a plea is knowing and voluntary, a trial judge must be certain the defendant understands the direct consequences of pleading guilty. A direct consequence is one that has a definite, immediate, and largely automatic effect on the range of the defendant's punishment.
Barkley v. State, Del. Supr., 724 A.2d 558, 559 (1999) (citing Sullivan v. State, Del. Supr., 636 A.2d 931, 937 (1994)).
Id. (citing Brady v. United States, 397 U.S. 742 (1970)).
Id. at 560 (quoting Parry v. Rosemeyer, 3rd. Cir., 64 F.3d 110, 114 (1995)).
(19) Harris claims that OSS was a direct consequence of his Robinson plea. Harris' claim is without merit. OSS was not an additional form of punishment, and it had no effect on the range of Harris' sentence. Consequently, the Superior Court was not required to inform Harris of the ramifications of OSS.
(20) Similarly, the fact that Harris could be resentenced if he violated his probation was not a direct consequence of his Robinson plea. Harris' successive revocations of probation and resentencings were the result of his conduct in violation of probation and were not an automatic consequence of his original plea. Accordingly, the Superior Court was not required to inform Harris, during the Robinson plea proceeding, that the Court was authorized to reimpose any previously suspended prison term, in the event Harris violated probation.
Furthermore, it appears from the transcript of the guilty plea proceeding that Harris was familiar with the concept that, if he violated probation, the judge could reimpose the original sentence. Indeed, Harris was on probation at the time he entered into the Robinson plea in this case and was advised that, as a result of his plea, his probation officer intended to file a violation of probation. The hearing transcript reflects the following exchange:
THE COURT: Any probation that is ordered by the Court, even if you haven't gotten to that probation yet, if there are grounds to violate you, you don't have to actually be on probation. The Judge can go back to the original sentence and enter the original sentencing order.
THE DEFENDANT: Okay.
THE COURT: Does that change your mind as to whether or not you wish to enter the plea?
THE DEFENDANT: No, no. Just get it over with. No, sir.
(21) In this appeal, Harris has failed to demonstrate actual prejudice in support of his claim of ineffective assistance of counsel. Furthermore, Harris has failed to demonstrate manifest injustice to permit the withdrawal of his Robinson plea. The Superior Court did not abuse its discretion in denying Harris' motion for postconviction relief.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.