Opinion
Def. I.D. No. 0309015988.
Date Submitted: November 13, 2007.
Date Decided: February 20, 2008.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief DENIED. CR.A. NOS.: IN03-10-1154-RI.
ORDER
This 14th day of February, 2008, upon consideration of the Motion for Post-conviction Relief brought by Defendant, Ralph H. Hawkins ("Defendant"), it appears to the Court that:
1. On September 21, 2003, Defendant was indicted on two counts of Murder First Degree, Burglary First Degree, Assault Second Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Reckless Endangering First Degree.
2. The State timely indicated its intent to seek the death penalty against Defendant. On February 15, 2005, Defendant plead guilty to Murder First Degree and the State withdrew its request for capital punishment. Defendant was sentenced to life in prison on April 8, 2005. Defendant did not seek to withdraw his plea at any time prior to or after sentencing.
3. Defendant filed this pro se motion for postconviction relief on June 27, 2007. He raises four grounds for relief based on ineffective assistance of counsel. He contends that his counsel was ineffective because: (1) he was never in danger of receiving the death penalty under Atkins v. Virginia as he was mentally retarded at the time of the offense; (2) counsel improperly advised him to accept a plea of Murder First Degree; (3) counsel's advice to accept the plea and waive his constitutional rights regarding a trial deprived him of due process; and (4) counsel failed to investigate the availability of mitigating evidence which could have been offered during the trial phase of the case.
4. Rule 61(g)(2) permits the Court to direct counsel to supplement the record in response to a defendant's claims of ineffective assistance of counsel. In light of Defendant's claims here, the Court requested Defendant's counsel to supply an affidavit as contemplated by Rule 61(g)(2). Counsel submitted their affidavit on September 6, 2007.
A. Standard of Review.
5. Before addressing the merits of any postconviction relief motion, the Court must first determine whether the claims pass through the procedural filters of Superior Court Criminal Rule 61 ("Rule 61"). To protect the integrity of the procedural rules, the Court will not address the substantive aspects of the claims if Defendant's claims are procedurally barred. Rule 61 imposes four procedural imperatives on Defendant's motion: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceedings; (3) any basis for relief not asserted in the proceedings below as required by the court rules is subsequently barred unless defendant can show cause and prejudice; and (4) any ground for relief must not have been formerly adjudicated in any proceeding unless warranted in the interest of justice. Under Rule 61(i)(5), a defendant may avoid the first three procedural imperatives if the claim is jurisdiction or is "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (It is well-settled that the Superior Court and this Court must address the procedural requirements of Rule 61 before considering the merits of this motion).
SUPER. CT . CRIM . R. 61(i)(5).
6. A judgment of conviction is final for the purposes of postconviction review under the following circumstances:
(1) if the defendant does not file a direct appeal, 30 days after the Superior Court imposes sentence; (2) if the defendant files a direct appeal or there is an automatic statutory review of a death penalty, when the Supreme Court issues a mandate or order finally determining the case on direct review; or (iii) if the defendant files a petition for certiorari seeking review of the Supreme Court's mandate or order, when the U.S. Supreme Court issues a mandate or order finally disposing of the case on direct review.
SUPER. CT . CRIM . R. 61(m).
7. Under the first procedural bar, Rule 61(i)(1), Defendant's motion is not timely because he did not file it within one year after his conviction became final. Defendant was sentenced on April 8, 2005 and did not file this motion for postconvicion relief until June 27, 2007, more than two years later. This procedural bar is avoided here, however, because Defendant has raised four ineffective assistance of counsel claims and each arguably constitutes "a colorable claim that there was a miscarriage of justice because of a constitutional violation," in accordance with Rule 61(i)5).
SUPER. CT . CRIM . R. 61(i)(5).
8. Challenges to the validity of guilty pleas based on ineffective assistance of counsel are governed by the two-prong test set forth in Strickland v. Washington. That test requires the defendant to prove that "counsel's representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Evaluating counsel's conduct begins with a "strong presumption" that the representation was reasonable. This presumption is meant to avoid "the distorting effects of hindsight." To prevail on the second prong of Strickland when challenging the acceptance of a guilty plea, the defendant must prove that he would have insisted on going to trial rather than pleading guilty had counsel not made the errors alleged.
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
Strickland v. Washington, 466 U.S. 668, 688 (1984).
Albury, 551 A.2d at 59.
Id., at 60.
B. Counsel's Representation of Hawkins Did Not Fall Below An Objective Standard Of Reasonableness.
9. Defendant has failed to satisfy the first prong of the Strickland test. Defendant's counsel acted within an objective standard of reasonableness in advising their client to accept the State's offer of life in prison in order to avoid the possibility of a death sentence. The Court will not address the second prong of the Strickland test because Defendant must prove both prongs to prevail on an ineffective assistance claim, and the failure to prove the first prong is fatal to the entire claim.
1. The Death Penalty After Atkins v. Virginia.
10. In 2002, the United State Supreme Court issued its decision in Atkins v. Virginia, in which the Court determined that executing mentally retarded defendants was unconstitutional. Defendant argues that his defense counsel erred in advising him to accept the guilty plea to Murder First Degree because he was mentally retarded at the time he allegedly committed the offense and, thus, not eligible for the death penalty. Defense counsel moved the Court to declare Defendant mentally retarded, pursuant to 11 Del. C. § 4209(d)(3), prior to trial. In support of this motion, defense counsel proffered the opinion of Dr. Alivn Turner ("Dr. Turner"), who declared Defendant mentally retarded according to the standards set forth in § 4209(d)(3). Defense counsel's request for a pretrial determination regarding Defendant's mental retardation was contrary to the statute and contrary to the Court's established procedure. Such determinations occur, if at all, at the penalty phase of the proceedings. The Court declined to hold the hearing prior to trial.
536 U.S. 304 (2002).
D.I. 74, Affidavit of Defense Counsel, at 4.
The Court declined defense counsel's request for a hearing on the mental retardation issue prior to trial for several reasons, including the plain language of the controlling statute and collateral estoppel concerns. The Court reasoned that if the motion was presented prior to trial and the Court found that Defendant was not mentally retarded as defined by the statute, then defense counsel would likely be estopped from submitting evidence of Defendant's mental retardation in the penalty phase of the trial, if the trial reached that point.
11. The State retained three different experts to evaluate Defendant. The first, Dr. Mehanick, determined that Defendant was not mentally retarded as defined in the code. The other two experts, Drs. Kenneth J. Weiss and Eliot Atkins, both concluded that while Defendant's abilities were within the borderline range of intellectual ability, he was not mentally retarded.
D.I. 74, at 4.
Id.
12. Defendant's assertion that his counsel improperly advised him to accept a plea is flawed because the defense expert's finding that Defendant was mentally retarded did not eliminate the possibility that Defendant would receive the death penalty. The State had three experts who would opine that Defendant was not mentally retarded within the guidelines of the statute. Given the competing opinions of the experts, Defendant faced a legitimate possibility of receiving the death penalty if he had proceeded to trial and was found guilty of capital murder.
Id.
2. Counsel's Advice To Accept A Plea Of Murder First Degree.
13. When Defendant was brought in for questioning regarding his involvement in the crime, he voluntarily waived his Miranda rights and made a number of incriminating statements, including an admission that he broke into the victim's apartment for the purpose of robbing it before setting the apartment on fire. Defendant argues that he did not knowingly, voluntarily, and intelligently waive his Miranda rights and, therefore, his incriminating statements should have been suppressed. He further argues that waiving his right to a trial deprived him of an opportunity to challenge the admissibility of those statements.
D.I. 47, at 18-19.
14. Defendant's contention of ineffective assistance is misplaced — — his attorneys did file a suppression motion on September 2, 2004 and a hearing was held on that motion on September 16, 2004. The Court heard testimony and viewed the videotape of Defendant's questioning and waiver of rights before ruling on the motion. The Court found that the videotape revealed a knowing, intelligent and voluntary waiver of Miranda rights from Defendant. Specifically, the Court relied upon the police officer's thorough explanation of Miranda, the Defendant's careful study of the waiver form before signing it, and the fact that Defendant was familiar enough with the criminal process to ask whether he was under arrest or not before making his decision to speak to police. In light of this and the totality of other evidence, the Court denied Defendant's motion to suppress. Because the Court ruled on this issue prior to trial, Defendant's incriminating statements were admissible against him and he could not have challenged that decision again at trial. Defense counsel's actions did not fall below an objective standard of reasonableness because they did precisely what Defendant now criticizes them for not doing.
Tr. of Sep. 16, 2004 Hearing, at 112-113.
15. With respect to their advice to accept the plea offered by the State, defense counsel's affidavit indicates that on February 3, 2005, counsel, along with Carmen Wright, Defendant's girlfriend, met with Defendant at the Howard R. Young Correctional Institute to discuss the plea offered by the State. Counsel advised Defendant regarding the consequences of accepting such a plea. Defendant was then given an opportunity to discuss the issue with those present. At the conclusion of the meeting, Defendant elected to accept the plea. Defendant has not presented any evidence indicating that he was coerced into making this decision by his counsel. Additionally, on February 15, 2005, Defendant signed the Plea Agreement and Truth-In-Sentencing Guilty Plea Form and affirmatively stated that he was knowingly, voluntarily and intelligently waiving his right to a jury trial, to cross examine witnesses, to present his own defense and to appeal his conviction. The Court then engaged Defendant in a lengthy plea colloquy to confirm that he understood the consequences of the plea and the constitutional trial rights he would forfeit by accepting the plea:
The Court: And were you able, then, to read all of the information on the plea agreement that you signed?
The Defendant: Yes, sir.
The Court: And did you discuss this plea agreement thoroughly with your attorneys?
The Defendant: Yes, sir.
D.I. 74, at 2.
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The Court: Did you confer with your attorneys about the questions that were on this form?
The Defendant: Yes, sir.
The Court: And were you satisfied with the advice that they gave you about these questions and what your answers should be?
The Defendant: Yes, sir.
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The Court: Do you understand [the] trial rights that you have as guaranteed by [the] constitution? Do you understand those rights?"
The Defendant: Yes, sir.
The Court: And is it your intention to give up those constitutional rights by entering this plea of guilty?
The Defendant: Yes, sir.
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The Court: Has anyone threatened or coerced you in any way to accept this plea of guilty?
The Defendant: No.
The Court: Are you doing so of your own free will because you believe it's the right thing for you to do?
The Defendant: Yes, sir.
The Court: And are you doing so because you are, in fact, guilty of the offense that you're entering this plea of guilty to this afternoon?
The Defendant: Yes, sir.
This plea colloquy, in addition to the Truth-In-Sentencing Guilty Plea Form, indicates that Defendant voluntarily waived his constitutional trial rights and was not coerced to do so by his trial counsel or anyone else.
3. Mitigating Evidence.
16. Defendant alleges that his counsel failed to investigate available mitigating evidence that may have resulted in a charge of a lesser included offense. In his motion for postconviction relief, Defendant fails to offer any evidence to support this assertion. Defense counsel denies that there was a failure to investigate mitigating evidence. Additionally, defense counsel avers that Defendant never indicated what other mitigating evidence existed. Defendant has not demonstrated that defense counsel's actions fell below an objective standard of reasonableness and therefore has not satisfied the standard set forth in Strickland.
Id., at 5
Id.
See State v. Jordan, 1994 WL 637299, at *3 (Del.Super.Ct. Jun . 23, 1994)("This Court need not address Postconviction Relief claims that are conclusory and unsubstantiated.")
17. Based upon the foregoing, Defendant's motion for postconviction relief and request for court appointed counsel are DENIED.
IT IS SO ORDERED.