Opinion
ID No. 1301011904 ID No. 1301020575
06-19-2017
STATE OF DELAWARE v. MICHAEL A. FORSHEY
Lindsay A. Taylor, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Ronald G. Poliquin, Esq., Brown, Shiels and Beauregard, Dover, Delaware for Defendant.
RK13-01-0720 thru 0723-01 Rape 3rd Injury (F)
RK13-01-0816-01 Cont Sex Abuse (F)
RK13-01-0499-01 Rape 4th <16/NO (F)
RK13-01-0714-01 Unlaw Sex Con 2 (F)
RK13-02-0475-01 Nonc w/Con Bond (F)
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Lindsay A. Taylor, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Ronald G. Poliquin, Esq., Brown, Shiels and Beauregard, Dover, Delaware for Defendant. FREUD, Commissioner
The Defendant, Michael A. Forshey ("Forshey") pled guilty on July 31, 2013 to one count of Continuous Sexual Abuse of a Child, 11 Del. C. § 778; four counts of Rape in the Third Degree, a lesser-included offense of Rape in the Second Degree, 11 Del. C. § 771; one court of Rape in the Fourth Degree, 11 Del. C. § 770, one count of Unlawful Sexual Contact Second Degree, 11 Del. C. § 768; and one count of Noncompliance with Conditions of Bond, 11 Del. C. § 2113. Forshey was also facing an additional ninety-two counts of Rape in the Second Degree Without Consent, an additional count of Continuous Sex Abuse of a Child, and five additional counts of Unlawful Sexual Contact in the Second Degree. Nolle prosequis were entered on the remaining charges in exchange for Forshey's guilty plea. The parties agreed to recommend a sentence of 148 years incarceration suspended for ten years minimum followed by probation. The Court accepted the Plea Agreement and recommended sentence. Had Forshey gone to trial and been found guilty of each of the charges, he faced a minimum mandatory sentence of 964 years in jail up to a potential of 2,483 years incarceration. Forshey did not appeal his conviction or sentence to the State Supreme Court. On July 28, 2014, Forshey filed his first pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, alleging ineffective assistance of counsel. He also requested the appointment of counsel. The Court granted the request to appoint counsel. Appointed Counsel filed an Amended Motion for Postconviction Relief alleging ineffective assistance of counsel.
FACTS
The charges stem from Forshey repeatedly raping his younger sister, Laura from when she was approximately eight years-old until she was fifteen. The acts included multiple and repeated vaginal penetration, fellatio, sodomy, intercourse and unlawful sexual contact. Additionally there were multiple other acts of vaginal penetration, fellatio, etc. with Laura's friend when the girls were 12 years-old and Forshey assaulted the two girls together and forced them to perform sexual acts with one another. Forshey was also charged with vaginally penetrating his mentally disabled sister, Christa on one occasion. He also violated conditions of his bond by contacting his victims. Each of the girls gave detailed statements to the police describing the sexual abuse. Forshey's father gave a statement acknowledging that he was aware of some of the abuse. Forshey admitted to many of the charges when interviewed by the police following Miranda. He also admitted the crimes while being examined by a psychiatrist at the Delaware Psychiatric Center.
FORSHEY'S CONTENTIONS
Next, Forshey's Appointed Counsel filed an Amended Motion for Postconviction Relief pursuant to Superior Court Rule 61. In the motion are the following grounds for relief:
Ground one: Trial Counsel was ineffective for failing to obtain a second psychiatric evaluation of Forshey.
Ground two: Trial counsel was ineffective for failing to establish mitigating evidence.
Ground three: Trial Counsel was ineffective for failing to investigate the case fully.
Ground four: Trial Counsel was ineffective for failing to challenge the Indictment.
DISCUSSION
Under Delaware law, this Court must first determine whether Forshey has met the procedural requirements of Superior Court Criminal Rule 61(I) before it may consider the merits of his postconviction relief claim. This is Forshey's first motion for postconviction relief, and it was filed within one year of his conviction becoming final. Therefore, the requirements of Rule 61(i)(1) - requiring filing within one year and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion, are met. None of Forshey's claims were raised at the plea, sentencing, or on direct appeal. Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause for the default and prejudice. To some extent each of Forshey's claims are based on ineffective assistance of counsel; therefore, he has alleged cause for his failure to have raised them earlier.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
At this point, Rule 61(i)(3) does not bar relief as to Forshey's grounds for relief, provided he demonstrates that his counsel was ineffective and that he was prejudiced by counsel's actions. To prevail on his claim of ineffective assistance of counsel, Forshey must meet the two-prong test of Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires a defendant show: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that counsel's actions were prejudicial to him in that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been his acquittal. The failure to establish that a defendant would not have pled guilty and would have proceeded to trial is sufficient cause for denial of relief. In addition, Delaware courts have consistently held that in setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. When examining the representation of counsel pursuant to the first prong of the Strickland test, there is a strong presumption that counsel's conduct was professionally reasonable. This standard is highly demanding. Strickland mandates that, when viewing counsel's representation, this Court must endeavor to "eliminate the distorting effects of hindsight."
466 U.S. 668 (1984).
Id. at 687.
Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60 (Del. 1988))(citations omitted).
See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465 at *1 (Del. Supr.)).
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)).
Strickland, 466 U.S. at 689.
Following a complete review of the record in this matter, it is abundantly clear that Forshey has failed to allege any facts sufficient to substantiate his claim that his attorney was ineffective. I find Trial Counsel's affidavit in conjunction with the record, more credible that Forshey's claims that his counsel's representation was ineffective. Forshey's counsel clearly denies the allegations. Furthermore, nowhere in his motion does Forshey claim to be innocent, he merely speculates that had a second psychiatric evaluation been performed or additional mitigating factors been presented the State "may" have been inclined to offer him an even better plea agreement. This is purely speculative. Clearly had he gone to trial the likelihood of conviction was very high.
As noted, Forshey was facing the possibility of over 900 years minimum mandatory jail time had he been convicted, and the sentence and plea were extremely reasonable under all the circumstances, especially in light of the overwhelming evidence against him. Prior to the entry of the plea, Forshey and his attorney discussed the case. The plea bargain was clearly advantageous to Forshey. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Forshey entered his guilty plea, he stated he was satisfied with defense counsel's performance. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Forshey has failed to establish that his counsel's representation was ineffective under the Strickland test. Additionally Forshey acknowledged his guilt several times.
Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931, 937-938 (Del. 1994)).
Even assuming, arguendo, that counsel's representation of Forshey was somehow deficient, Forshey must satisfy the second prong of the Strickland test, prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk dismissal. In an attempt to show prejudice, Forshey simply asserts that his counsel was ineffective and speculates that he "may" have been given a more favorable plea. His statements are insufficient to establish prejudice, particularly in light of the overwhelming evidence against him. Therefore, I find Forshey's grounds for relief are meritless.
Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del. 1990)).
To the extent that Forshey alleges his plea was involuntary, the record contradicts such an allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty-plea hearing, the Court asked Forshey whether he understood the nature of the charges, the consequences of his pleading guilty, and whether he was voluntarily pleading guilty. The Court asked Forshey if he understood he would waive his constitutional rights if he pled guilty; if he understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty Plea Form ("Guilty Plea Form"); and whether he gave truthful answers to all the questions on the form. The Court asked Forshey if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Forshey if he was entering into the plea because he was guilty of the charges. The Court also asked Forshey if he was satisfied with this counsel's representation. Forshey answered each of these questions affirmatively. I find counsel's representations far more credible than Forshey's self-serving, vague allegations.
Godinez v. Moran, 509 U.S. 389, 400 (1993).
State v. Forshey, Del. Super., ID Nos. 1301011904, 1301020575 (July 31, 2013) Tr. at 6-13.
Furthermore, prior to entering his guilty plea, Forshey signed a Guilty Plea Form and Plea Agreement in his own handwriting. Forshey's signatures on the forms indicate that he understood the constitutional rights he was relinquishing by pleading guilty and that he freely and voluntarily decided to plead guilty to the charges listed in the Plea Agreement. Forshey is bound by the statements he made on the signed Guilty Plea Form, unless he proves otherwise by clear and convincing evidence. I confidently find that Forshey entered his guilty plea knowingly and voluntarily and that Forshey's grounds for relief are completely meritless.
Sommerville, 703 A.2d at 632. --------
CONCLUSION
I find that Forshey's counsel represented him in a competent and effective manner and that Forshey has failed to demonstrate any prejudice stemming from the representation. I also find that Forshey's guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Forshey's motion for postconviction relief as procedurally barred and completely meritless.
/s/ Andrea M. Freud
Commissioner