Opinion
ID No. 0405006433.
Submitted: January 24, 2006.
Decided: February 28, 2006.
Upon Consideration of Motion for Postconviction Relief. DENIED.
Defendant, Devon Drummond ("Drummond"), filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on July 25, 2005. Drummond's trial attorney and the State filed a response. On December 19, 2005, Drummond requested an extension of time to respond to the State's Reply. The Court granted Drummond's Motion and Ordered him to file a response by January 23, 2006. On January 24, 2006, Drummond filed a "Motion for Leave to Amend Rule 61 Postconviction Relief" on the basis that he was seeking counsel. Due to the untimely filing and failure to comply with this Court's prior Order, the Court will deny Drummond's Motion for Leave to Amend. Upon Consideration of Drummond's Motion for Postconviction Relief and the Responses filed by Drummond's trial attorney and the State, the Court finds and concludes as follows:
1. Drummond was charged with Possession of a Deadly Weapon by a Person Prohibited, Possession of Ammunition by a Person Prohibited, Use of a Dwelling for Keeping Controlled Substances, Conspiracy Second Degree, Possession of a Non-Narcotic Schedule I Controlled Substance, Possession of Drug Paraphernalia, three counts of Endangering the Welfare of a Child, Terroristic Threatening, and Offensive Touching. Drummond entered a plea of guilty to Possession of a Deadly Weapon by a Person Prohibited, Terroristic Threatening, and Endangering the Welfare of a Child. As part of the plea agreement, Drummond agreed that he was subject to sentencing as a Habitual Offender, pursuant to 11 Del. C. 4214(a). On March 8, 2005, the State recommended and Drummond was sentenced to the mandatory minimum of eight years of incarceration, followed by probation for the charge of Possession of a Deadly Weapon by a Person Prohibited. Drummond did not file a notice of appeal in the Supreme Court.
2. Instead, Drummond filed a Motion for Modification of Sentence on May 31, 2005 and a Motion for Postconviction Relief that is presently pending before this Court.
3. Before considering the merits of Drummond's Motion, the Court must assess any procedural bars to postconviction relief. According to Delaware Superior Court Criminal Rule 61(i)(3), any ground for relief that was not asserted in the proceedings leading to the judgment of conviction is thereafter barred, unless the movant shows both (a) cause for relief from the procedural default and (b) prejudice from violation of the movant's rights. A showing of cause is not satisfied by showing merely that a claim was not timely raised; a movant must show "some external impediment" which prevented him from raising the claim. To show prejudice, a movant must show a "substantial likelihood" that if the issue had been raised, the outcome would have been different. The Postconviction Relief Motion is timely filed and not repetitive.
4. Drummond contends that he should be afforded postconviction relief because: 1) the Court abused its discretion by accepting the guilty plea and sentencing him to 8 years of Level 5 incarceration for the charge of Possession of a Deadly Weapon by a Person Prohibited; 2) the prosecutor coerced him into accepting the plea offer; 3) the prosecutor suppressed evidence which showed that the search and seizure of his wife's car and house was illegal; 4) he was illegally detained and arrested due to evidence taken in an illegal search and seizure; and 5) his counsel was ineffective. The procedural bars and merits of each of these claims will be discussed below.
5. First, Drummond asserts that the Court abused its discretion by accepting the guilty plea and sentencing him to 8 years of Level 5 incarceration for the charge of Possession of a Deadly Weapon by a Person Prohibited. He alleges that this sentence was higher than the sentencing guidelines. This claim is without merit. Pursuant to the SENTAC sentencing guidelines, the statutory range for the charge of Possession of a Deadly Weapon by a Person Prohibited, if the weapon is a firearm, is 0-8 years of Level 5 incarceration. The sentencing guidelines, however, are inapplicable in this circumstance since Drummond was sentenced as a habitual offender. 11 Del. C. § 4214(a) reads, in pertinent part:
Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony, as defined in § 4201(c) of this title.
Drummond's sentence to 8 years of Level 5 incarceration, the maximum sentence for the charge of Possession of a Deadly Weapon by a Person Prohibited, was appropriate given his status as an habitual offender.
6. Second, Drummond claims that his guilty plea was coerced due to prosecutorial misconduct. He alleges that the prosecutor threatened him that if he didn't take the plea he would get twenty years to life imprisonment. Drummond, however, did not raise this claim "in the proceedings leading to the judgment of conviction," and has not established cause for, and prejudice resulting from, his failure to raise this claim in a timely fashion. Even if the claim was not procedurally barred, it would be unavailing on its merits. On his guilty plea form, Drummond indicated that he freely and voluntarily decided to plead guilty to the charges listed and that no one threatened or forced him to enter the plea. Review of the guilty plea colloquy transcript also supports the Court's finding that Drummond knowingly and voluntarily entered into his guilty plea. He specifically stated that he had consulted with his counsel and that he understood that he could face up to a maximum of life in prison. He also asserted that he understood that the minimum penalty was eight years. There is, thus, no record support for Drummond's contention that his guilty plea was coerced due to prosecutorial misconduct. In the absence of clear and convincing evidence to the contrary, Drummond is bound by his representations in the plea agreement and during the plea colloquy.
7. Drummond also claims that the prosecutor suppressed evidence which showed that the search and seizure of his wife's car and house were done without a warrant. This claim is also procedurally barred pursuant to Superior Court Criminal Rule 61(i)(3). Drummond has not alleged "some external impediment" which prevented him from raising the claim in the proceedings leading to the judgment of conviction nor has he showed a "substantial likelihood" that if the issue had been raised the outcome would have been different. Furthermore, even if this claim was not procedurally barred there is no evidence in the record to support Drummond's assertion that the prosecutor suppressed or withheld this evidence. Drummond has proffered a mere conclusory claim which the court need not address.
8. Drummond next asserts that he was illegally detained and arrested due to evidence taken in an illegal search and seizure. Specifically, he alleges that Officers Grant and Woerner suppressed police reports which show that his arrest was due to an illegal search and seizure. Although Drummond did not raise this ground for relief at either his plea or sentencing, this claim is not procedurally barred. Rule 61(i)(5) provides that the procedural bar of Rule 61(i)(3) shall not apply to a colorable claim that there was a miscarriage of a constitutional violation. The constitutional violation upon which Drummond relies is an alleged violation of the Fourth Amendment of the Constitution of the United States and Article I, section 6 of the Delaware Constitution. Such provisions protect the "right of the people to be secure . . . against unreasonable searches and seizures" by requiring the police to obtain a warrant, supported by probable cause before searching any area in which an individual has an expectation of privacy." The law does, however, recognize that a search without a warrant can be reasonable in some instances. Even though Drummond has alleged that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction, the Court need not determine whether Drummond's claims are credible. By pleading guilty, Drummond waived his Constitutional trial rights, including the right to challenge the sufficiency of the evidence against him. If the plea is voluntary and intelligent, it "waives all defects allegedly occurring before the defendant enters the plea with the exception of subject matter jurisdiction." The transcript of the proceedings indicate that Drummond's plea was entered knowingly, intelligently and voluntarily. Accordingly, based upon settled Delaware law, Drummond's complaints regarding the illegal search and seizure are deemed waived.
9. Lastly, Drummond assets several claims of ineffective of counsel. He alleges that counsel was ineffective because he failed to: 1) object to the coerced guilty plea; 2) withdraw the guilty plea; 3) raise objections as to the sentencing guidelines for the charge of Possession of a Deadly Weapon by a Person Prohibited; 4) file an appeal; 6) file suppression, severance, and in limine motions; 7) effectively utilize discovery; 8) represent facts accurately and provide information; 9) defend him; and 10) prepare for trial. Additionally, in paragraph three of Drummond's Memorandum of Law, he alleges:
"Petitioner was informed by Attorney David Anderson Sr. that he was on vacation twice for a week in the month of Feb. 2005 and he wasn't familiar with the case. When Attorney David Anderson Sr. arrived he assured petitioner he would file for a suppression hearing and post pone trial to familiarize himself with the case. However, the day before the case defendant's counsel informed petitioner that the D.A.G. contacted him and reminded him trial was the next day and counsel claimed he never had time to file motion for suppression of illegal search and seizure evidence or file motion to post pone case so defendants counsel could investigate the case and secure D.A.G. Discovery reply. Defendants counsel was unprepared for trial. . . ."
These claims are not barred by Rule 61(i)(3) because there is a colorable claim that there was a miscarriage of justice due to a constitutional violation that, inter alia, undermined the fundamental fairness of the proceedings. Nonetheless, they fail under Strickland v. Washington, and Flamer v. State. The test for ineffective assistance of counsel is (1) whether counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Additionally, there is a strong presumption that legal representation is professionally reasonable.
The State entered a nolle posequi on the charges of Possession of Ammunition by a Person Prohibited, Use of a Dwelling for Keeping Controlled Substances, Conspiracy Second Degree, Possession of a Non-Narcotic Schedule I Controlled Substance, Possession of Drug Paraphernalia, two counts of Endangering the Welfare of a Child, and Offensive Touching.
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Flamer v. State, 585 A.2d 736, 748 (Del. 1990).
See Super. Ct. Crim. R. 61(i)(3).
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
State v. Rossitto, 1988 WL 97863, at *5 (Del.Super.).
State v. Jones, 1990 WL 18267. at *2 (Del.Super.).
Haskins v. State, 1991 WL 165563, at *1 (Del.Supr.).
A claim of ineffective assistance of counsel is a "constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceeding." See Super. Ct. Crim. R. 61(i)(5); Strickland v. Washington, 466 U.S. 668, 687 (1984).
466 U.S. 668 (1984).
585 A.2d 736 (Del. 1990).
Strickland, 466 U.S. at 688, 694.
Flamer, 585 A.2d at 753-54.
First, Drummond claims that counsel was ineffective because he failed to object to the coerced guilty plea. He claims that counsel coerced him into accepting the guilty plea because he was not prepared for trial. He further alleges that he did not knowingly and voluntarily decide to plea because evidence had been suppressed. These claims are unsupported by any record evidence and are contradicted by the representations he made on his signed guilty plea form and during the plea colloquy. As stated previously, Drummond indicated that he freely and voluntarily decided to plead guilty to the charges listed in the plea agreement and that no one, including his attorney, had threatened or forced him to enter the plea. Drummond averred that he was satisfied with his lawyer's representation and that his lawyer had fully advised him of his rights and of the guilty plea. Review of the guilty plea colloquy transcript also supports the Court's finding that Drummond knowingly and voluntarily entered into his guilty plea. Moreover, defense counsel asserted in his response that evidence had not been withheld from Drummond, that he was prepared for trial on March 8, 2005, and did not coerce him into taking the plea. Thus, the Court finds that Drummond's allegation with respect to counsel's failure to object to the coerced guilty plea is without merit.
Drummond's claims that counsel refused to withdraw the guilty plea, failed to raise objections as to the sentencing guidelines, and failed to file an appeal are also unavailing. Drummond indicated in his signed plea agreement that he was satisfied with his counsel's representation, he understood the range of penalties that could be imposed, he understood that he was giving up the right to appeal, and he was pleading guilty because he had committed the offenses of which he was accused. In the absence of clear and convincing evidence to the contrary, Drummond is bound by these sworn representations.
Somerville, 703 A.2d at 632.
Drummond also claims that counsel was ineffective because he failed to file the appropriate pre-trial motions, conduct an adequate investigation, effectively utilize discovery, prepare for trial, defend him, represent facts accurately, and provide information. Specifically, Drummond claims that counsel failed to file a suppression motion to suppress evidence pertaining to the alleged illegal search of his wife's car and residence. By pleading guilty, Drummond waived his constitutional trial rights, including the right to challenge the admissibility of any evidence seized by the police. Therefore, even if the Court were to assume that a motion to suppress evidence would have been successful, given Drummond's guilty plea, he has failed to show that the result of the proceedings would have been different. Moreover, defense counsel has explained that he did not file a motion to suppress because there was no legal basis. Defense counsel is not required to file motions, which based upon his experience and knowledge are not legally or factually supportable, even if the defendant has a different opinion. Therefore, this ground for relief is without merit. Drummond also alleges that counsel failed to file motions to sever the offenses and motions in limine. The evidence was sufficient to merit joinder of the offenses because the offenses were "of the same or similar character," or were "based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Here, defense counsel realized that a motion to sever the charges would have no merit under the case law developed in this area, and would inevitably be denied by the Court. As stated previously, counsel for Drummond is not required to file motions that clearly would be without merit and would reasonably be denied. With respect to Drummond's claim that counsel failed to effectively utilize discovery, he alleges that police reports were suppressed and counsel allowed the prosecutor to suppress all discovery. First, there is no evidence in the record to support Drummond's contention that this evidence was withheld. Furthermore, even if it was, Drummond's claim is without merit since a police report is not discoverable evidence under Rule 16. Superior Court Criminal Rule 16(2) states in pertinent part:
Super. Ct. Crim. R. 8(a).
[T]his rule does not authorize the discovery or inspection of reports, memoranda, or other internal state documents made by the attorney general or other state agents in connection with the investigation or prosecution of the case, or of statements by state witnesses or prospective state witnesses.
In Lovett v. State, the Delaware Supreme Court held that "`there is no general constitutional right to discovery in a criminal case, and Brady did not create one.'" The Lovett Court specifically addressed the discovery of police reports, and concluded that "a defendant has no due process right to discovery of police reports made in the course of criminal investigations." Therefore, defense counsel could not have been ineffective in any way for failing to obtain the police report. Furthermore, counsel has asserted that he had investigated the case and that all discovery had been obtained, inspected, investigated, and discussed with Drummond. Drummond's allegations that defense counsel misrepresented material facts and withheld information from him are conclusory. He does not specifically allege what was misrepresented or what was withheld. In addition, Drummond's claim that counsel did not defend him and was unprepared for trial is also without merit. Counsel had prepared a trial notebook containing thirteen exhibits, an opening statement, and scripted questions for all key witnesses in the trial. Drummond's failure to allege in what respect counsel's conduct fell below "an objective standard of reasonableness" and the prejudice resulting from such conduct, i.e., "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial" is fatal to all of these claims. Drummond's contentions fail to overcome Strickland's presumption of "professionally reasonable" representation.
Lovett v. State, 516 A.2d 455, 472 (Del. 1986) (quoting Weatherford v. Bursey, 429 U.S. 545, 559 (1977)).
Id. (citing State v. Thompson, 134 A.2d 266, 267-268 (Del.Super.Ct. 1957)).
Albury v. State, 551 A.2d 53, 60 (Del. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
Lastly, the Court finds that Drummond's allegation in paragraph three of his Memorandum of Law is without merit. Even assuming that defense counsel's representation fell below an objective standard of reasonableness by failing to properly record the trial date, Drummond's ineffective assistance claim must fail because he has not satisfied the second prong of the two-part test set forth in Strickland. Drummond has not alleged that there is a reasonable probability that, but for counsel's unprofessional errors, he would not have pleaded guilty and would have insisted on going to trial. Therefore, Drummond's ineffective assistance of counsel claims must be denied.
Albury, 551 A.2d at 60.
The Court, therefore, DENIES Drummond's Motion for Postconviction Relief for the above stated reasons.