Opinion
ID No. 0311002129.
Submitted: December 15, 2010.
Decided: December 21, 2010.
Upon Defendant's Motion for Postconviction Relief. Denied.
Edward C. Gill, Esquire, Georgetown, DE.
John F. Brady, Esquire, Lewes, DE.
Donald R. Bucklin, Esquire, Deputy Attorney General, Georgetown, DE.
Dear Counsel:
Pending before me is Defendant Rodolfo Osorto's first motion for postconviction relief, filed pursuant to Super. Ct. Crim. R.61 ("Rule 61"). Having considered the motion, defense counsel's affidavit, the State's answer and Defendant's reply, the Court concludes that Defendant is not entitled to relief.
This Court vacated its decision summarily dismissing the motion and ordered expansion of the record, pursuant to Rule 61(f) and (g).
Defendant argues that his defense attorney was constitutionally ineffective in his representation, and that but for counsel's conduct, Defendant would not have accepted the plea offer. A claim of ineffectiveness of counsel is typically raised for the first time in a postconviction relief motion. Defendant's motion was timely filed, and the Rule's other procedural bars do not apply.
Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
To prevail on the merits, Defendant must show first that defense counsel's conduct fell below an objective standard of reasonableness. He must also show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty but would have insisted on going to trial.
Cannon v. State, 2007 WL 2323790 (Del.) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
The record shows the following relevant facts. The collision occurred in Sussex County on July 20, 2003 at approximately 1:30 a.m. While traveling west on State Route 20, Defendant crossed into the east-bound lane in order to pass the car ahead of him. While still in the east bound lane, Defendant's Dodge Caravan struck an oncoming Ford Taurus traveling east. As a result of the collision, one passenger of the Taurus was killed, and the driver and the two other passengers were injured.
Immediately after the collision, Defendant was taken to Nanticoke Memorial Hospital for treatment, including blood work. Based on blood serum analysis, Defendant's blood alcohol concentration (BAC) on admission to Nanticoke was 0.180. Applying the formula used by the Delaware State Police to extrapolate from blood serum results to whole blood results, Defendant had a BAC of 0.154 when the collision occurred. At the time of Defendant's arrest, 21 Del. C. § 4177 (a) provided that a person was guilty of driving under the influence of alcohol if the person's BAC was 0.10 or higher within 4 hours after the time of driving.
Effective July 12, 2004, the General Assembly amended the DUI statute by lowering the legal limit of BAC while driving from 0.10 to 0.80.
On June 22, 2004, Defendant pled guilty to one count of Vehicular Homicide 2nd degree, one count of Vehicular Assault 1st degree, two counts of Vehicular Assault 2nd degree and one count of Driving Under the Influence of Alcohol. During the plea colloquy, Defendant stated that he had no complaints prior to entering the guilty plea.
Defendant was represented by John F. Brady, Esquire. In his affidavit, Mr. Brady states that, with the assistance of an interpreter, he discussed with Defendant the issues raised by the plea offer. Counsel further states his informed belief that Defendant knowingly and voluntarily decided to enter a guilty plea after a thorough discussion of his probability of success at trial.
Sentencing was scheduled for August 13, 2004. Defendant absconded and was returned on a capias on July 8, 2010. He was immediately sentenced to more than five years of Level V time followed by work release and probation.
On August 31, 2010, through new counsel, Defendant filed a postconviction relief motion. He alleges that Mr. Brady was constitutionally ineffective for failing to file a suppression motion on the Nanticoke blood test results. He argues that the records were obtained in violation of his Fourth Amendment right to privacy; his "medical privilege"; unspecified provisions of both the State and Federal Constitutions; and 45 C.F.R. 164.512.
An individual has a protected Fourth Amendment privacy right if the person has a reasonable expectation of privacy in the area invaded by government action. In Delaware, blood samples are required to be turned over to the police under 21 Del.C. § 2740(a). This implied consent law removes the expectation of privacy if the police have probable cause to believe that a DUI offense has been committed.
State v. Hughes, 2003 WL 21213709 (Del. Super.) (citing Katz v. United States, 389 U.S. 347, 349 (1967)).
Section 2740(a) states in part that "any person who drives . . . within this State shall be deemed to have given consent . . . to chemical test or tests of that person's blood . . . for the purpose of determining the presence of alcohol or drugs."
State v. Powell, 2002 WL 1308368 (Del. Super.).
However, in this case, no showing of probable cause is necessary because Nanticoke initiated the blood work, not the police. The State issued a subpoena to obtain the records, pursuant to 29 Del.C. § 2504(4). The statute provides in part that the Department of Justice has the authority to "investigate matters involving the public peace, safety and justice and to subpoena witnesses and evidence in connection therewith. . . ." Subsection (4) is co-extensive with the constitutional powers of the Office of Attorney General set forth in the Del. Const., art. XV, § 1, and art. V, § 8. If a defense motion regarding the Attorney General's subpoena had been made, a Court-ordered subpoena would have been issued. Defendant has failed to show that defense counsel failed to make a viable Fourth Amendment claim or a Delaware constitutional privacy claim to the Court. He has shown neither attorney error nor prejudice.
In re Blue Hen Country Network, Inc., 314 A.2d 197 (Del.Super. 1973).
In his motion, Defendant asserts that the State violated his "medical privilege" and the terms of 45 CFR § 164.512. In his reply, Defendant argues that under 45 C.F.R. § 164.512(e)(1)(ii)(a) the standard for releasing medical records for the purpose of judicial proceedings requires a showing that the party seeking the information made "reasonable efforts" to provide notice to the individual in question. In fact, the record shows that the State informed Mr. Brady by letter dated April 28, 2004 of the Attorney General's subpoena and enclosed a copy of the subpoena with the letter. Thus, the notice requirement was met and there was no violation of Defendant's federal right to privacy of his medical information. Defendant has not shown either attorney error or prejudice.
Defendant argues that defense counsel failed to file a motion to suppress the results of the blood work. After Defendant was indicted, the State stated its intention to use the Nanticoke blood test results at trial. At an office conference held on February 6, 2004, defense counsel argued that Nanticoke violated HIPPA legislation by providing the State with Defendant's blood test results. The defense asked for and received a continuance so the parties could brief the issue.
The Court issued a Pretrial Scheduling Order dated April 30, 2004, directing the State to file a motion in limine regarding the blood evidence on May 14, 2004. The hearing on the motion was scheduled to be held on June 22, 2004. Thus, defense counsel raised the issue, and the Court dealt with it by ordering the State, as the proponent of the evidence, to file a motion in limine. Defense counsel's conduct did not fall below an objective standard of reasonableness, and Defendant suffered no prejudice.
On the day scheduled for the hearing, Defendant entered a guilty plea. If the hearing had taken place, the State would have prevailed. The proponent of any evidence has the burden of establishing its admissibility. Test results obtained from a hospital instrument used for therapeutic purposes and relied upon by physicians for the treatment of patients are sufficiently reliable to establish a foundation for admitting the evidence. Evidence of a hospital blood draw may be admitted as a business record if the proponent shows the regularity and reliability of the tests, as well as the record-keeping practices.
Hammond v. State, 569 A.2d 81, 91 (Del. 1990).
Id.
McLean v. State, 482 A.2d 101, 105 (Del. 1984). See also State v. McCabe, 1995 WL 562130 (Del. Super.).
The State's expert witnesses on blood alcohol and blood analysis included a Forensic Toxicologist from the Office of the State Chemist, a laboratory technician and a laboratory director from Nanticoke who would testify as to the manner and significance of Defendant's blood draw on July 20, 2003.
Based on the case law and the State's ability to meet the admissibility requirements for the Nanticoke blood test results, it is clear that the State's motion would have been granted. Thus, Defendant cannot show attorney error or prejudice stemming from the lack of a suppression motion. That is, he cannot show that but for defense counsel's errors he would have insisted on going to trial.
For these reasons, Defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.