Opinion
Cr.A. Nos. IN-98-11-1297, IN-98-10-0804, 0747 and 0711 ID No. 9809018013
Submitted: February 27, 2002 Argued: March 13, 2002
Decided: April 11, 2002
Defendant's Motion for Postconviction Relief — DENIED.
Dear Mr. Robinson:
You have filed a motion for postconviction relief claiming ineffective assistance of two attorneys, one privately retained, the other a Public Defender. You were sentenced on August 18, 2000 for guilty pleas to (1) assault in the first degree, (2) possession of a deadly weapon during the commission of a felony, (3) aggravated menacing and (4) assault in the third degree. These were four of eighteen charges for which you were scheduled to go to trial on May 23, 2000. Before the jury was selected, however, but while an array was still in the courthouse, you chose to enter the four pleas. All of the offenses, those to which you pled guilty and those nol prossed at sentencing, revolved around Nisha Floyd, a young woman with whom you had been in a relationship.
The Court granted you permission to amend your original motion.
The assault in the first degree incident resulted in serious injuries to her. One of the charges which the State dropped at sentencing was unlawful sexual intercourse in the first degree (Count I). Ms. Floyd was also the alleged victim of that charge. Even though dropped at sentencing, the presence of the charge and portions of your current motion involve this charge.
That word is used because the charge was dropped.
The offenses for which you were indicted, including the sex charge, were alleged to have occurred on or about August 4, September 24 and September 26, 1998. You were indicted on November 28, 1998 after a preliminary hearing on October 19, 1998 in the Court of Common Pleas. You were originally represented in this Court by Raymond Radulski, a Public Defender, one of the attorneys against whom you are now making a complaint. As a matter of fact, he filed a motion for bail reduction after your case was forwarded to this Court from Common Pleas and before you were indicted. The motion was denied.
Subsequent to your indictment, on December 8, 1998, private counsel, Michael Tucker, entered his appearance on your behalf and you were arraigned on December 15, 1998, entering pleas of not guilty. Your first case review was held on January 11, 1999. No pleas resulted and your second case review was set for March 1, 1999. No pleas were entered that day and your case was set for another final case review. On March 5, 1999, Mr. Tucker moved for leave to withdraw as your counsel. The motion states you "adamantly refuse to accept the advice of counsel and [your] family to the point that it has made a continuing working relationship impossible to maintain." The motion represents you did not oppose Mr. Tucker's withdrawal.
Motion to Withdraw, Docket No. 10.
The motion was granted on March 22, 1999. For a short period thereafter, you were unrepresented. Mr. Radulski reentered his appearance and the case was recycled for another first case review and another final case review. Actually, these were two "first" case reviews. No Public Defender had been appointed for you as of the time of your second round of case reviews after Mr. Tucker's withdrawal. This resulted in another "first" case review which was held about a month later. By then, Mr. Radulski had been appointed to represent you. At this "first" case review in May 1999, you rejected, again, the State's plea offer and the matter was set for another "final" case review. That second final case review was on July 12, 1999. Again, you rejected the State's plea offer on that occasion, but you were given until August 16, 1999 to schedule a plea. If that was not done, the case would be set for trial.
The Court's records reflect no plea being scheduled by August 16, 1999. Mr. Radulski, however, filed another bail reduction motion on September 28, 1999. Shortly after that motion was denied, you filed a pro se motion to dismiss for failure to provide a speedy trial. Since this was a pro se motion and you were represented by Mr. Radulski, your motion was sent to him. He, in turn, filed a motion to dismiss which was denied on January 18, 2000.
Docket No. 15.
On January 28, 2000, your charges were scheduled for March 30, 2000 for trial. That date was rescheduled at the State's request due to a scheduling conflict. Subsequently, you moved to dismiss Mr. Radulski, which was denied. A new trial date was set for May 23, 2000, which is the date on which the Court took your plea in lieu of trial.
APPLICABLE STANDARD
Before examining the merits of a Rule 61 motion for postconviction relief, the Court must first determine whether there are any procedural impediments to doing so. This is your first such motion. It has also been filed inside of the limitations' period applicable to guilty pleas. Accordingly, there are no procedural bars to consideration of your motion.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
Superior Court Criminal Rule 61(i)(1); Woods v. State, Del.Supr., No. 259, 1997, Berger, J. (July 18, 1997).
Your claims of ineffective assistance of counsel implicate other standards which the Court must consider. To succeed on such a claim, you must show that (1) a particular attorney's representation fell below an objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability the outcome would have been different. The Court, utilizing these standards, will separately examine the claims you make against Mr. Tucker and Mr. Radulski.
Bialach v. State, 773 A.2d 383, 387 (Del. 2001).
DISCUSSION Mr. Tucker
Your ineffective assistance claims against Mr. Tucker are: (1) he was not going to represent you at trial, even though privately retained and even though you believed he was going to represent you at trial up until he was allowed to withdraw; (2) his belated entry of appearance after the retainer was paid; (3) a disagreement over plea offers, particularly whether a plea to a sex charge would be needed and your desire not to plead without a "Rule 11;" (4) his withdrawal resulted in your being assigned a Public Defender; and (5) his insufficient work on your behalf while he was still in the case.
Former Criminal Rule 11(e)(1)(c) providing for sentence agreements, subject to Court approval. That provision has since been repealed.
While a bit unclear, the prejudice you allege which flowed from these claimed professional errors are (1) you were deprived of funds to hire replacement private counsel; (2) if you had known he was not going to represent you at trial, you would not have hired him; (3) he left you in jail for three extra months; (4) he "painted" you as uncooperative in the eyes of the Court when he presented his motion to withdraw; (5) he caused you to be represented by Mr. Radulski, who was also ineffective; and (6) the outcome of the proceedings were less favorable.
Your claims against Mr. Tucker are groundless. You have not made a valid claim of representation falling below any reasonable objective standard. Nor have you shown prejudice. The Court is able to draw these conclusions from its own records and the materials you supplied with your motion. Among the materials you supplied was a letter Mr. Tucker wrote to Inez Jones, who is the person who paid the retainer. Included with the letter is a bill reflecting time spent on your behalf and returning a portion of the retainer.
One of your claims is that he belatedly entered his appearance in this Court after being retained. The records show he was paid a retainer on October 27, 1998, met with you the next day, met and telephoned Jones and even talked to the victim, Ms. Floyd. You had charges coming to this Court and separate charges to be tried, at that time, in the Court of Common Pleas. Mr. Tucker's statement indicates he spent 9.5 hours on your behalf prior to entering his appearance for you in this Court. Several hours of that was spent talking to you.
After he entered his appearance, he spent over three hours in consultation with you. Those conversations involved your case and plea offers. Mr. Tucker sums up those discussions in the letter you enclosed with your motion:
I am enclosing herewith my statement for the balance of my representation of [Robinson]. As you will see I have chosen not to charge for services beyond February 19, 1999. . . . After talking to [Robinson] on February 19th, I was beginning to wonder if we were still working toward the same end, but when I left I was hopeful that we could accomplish something.
I succeeded in having the prosecutor agree to drop the sex offense which [Robinson] said he would not accept. Then when I returned to [Robinson] with a plea which was better than the previous plea he was reluctant to accept it at first because it was not a Rule 11 Plea, that is, it did not have limitations on the amount of time the judge could impose as a sentence. When I reminded him that I had told him previously that the prosecutor would not agree to a Rule 11 Plea we had further discussions about the sentencing and he finally agreed to accept the plea offer. I then received a message from you that he had changed his mind again and would not agree to the plea offer. I talked to him at the Courthouse and he was adamant that he would not plead without a Rule 11. I told him that a Rule 11 Plea would only be agreed to if he would plead guilty to the sex count. He said he would not do that.
. . . With the severe injuries [Ms.] Floyd sustained a jury would be likely to find him guilty of most, if not all, the charges in the indictment.
Three charges would look a lot better than 18 at sentencing, and the State was agreeing to drop the charges pending in the Court of Common Pleas as well. M y arguments were to on avail.
[Robinson] insists that he has prayed on the question and the answer was that he should not plead without a Rule 11. I told him that I believe in prayer, and that I had prayed about the matter as well. I told him that I felt comfortable that the plea that had been negotiated was the best path to take.
Since I was unable to convince [Robinson] to accept the plea I have chosen not to bill for that time. . . . It goes without saying that I would not charge for drawing up and presenting a Motion to Withdraw.
I do want to thank you very much for your efforts in the financial aspects of this case and the cooperation you have given me. My only regret is that [Robinson] would not accept the plea offer and proceed to sentencing.
Letter to Inez Jones (March 22, 1999).
According to his billing statement, Mr. Tucker spent 21.2 hours in representing you up to the moment he withdrew. His charge for the time spent is quite reasonable. The total amount he charges is not significant and in no way is a sum which inhibited retention of new private counsel.
Your real complaint against Mr. Tucker is that he did not get the plea offer you insisted on getting. Of course, you do not have to accept a particular plea offer or any plea offer. But, by the same token, the fear Mr. Tucker shared about your fate in front of a jury was not unreal. You were known to the victim and there was no issue of eyewitness identification. In the one incident to which you pled guilty — the charge of assault in the first degree — Ms. Floyd suffered significant injuries. Under all these circumstances, Mr. Tucker did the best he could. That he could not bend the prosecutor's will to meet your demands is not ineffective assistance of counsel.
The record in this Court and the documents you supplied do not substantiate a claim that Mr. Tucker's representation fell below any reasonable standard of professional conduct. Nor have you shown how anything he did meant you would have either (1) gone to trial instead or (2) obtained a better plea. You apparently insisted you would never plead to the sex charge and you never did. Without a showing of a violation of some standard of professional conduct and without a showing of any prejudice, your claim of ineffective assistance against Mr. Tucker fails.
Dawson v. State, 673 A.2d 1186 (Del. 1996); Stone v. State, 690 A.2d 924 (Del. 1996).
Mr. Radulski
After Mr. Tucker withdrew, Mr. Radulski re-entered the case on your behalf. He was your counsel from April 1999 until your plea before me on May 23, 2000.Your complaints against him start with a plea offer he communicated to you in April 1999. That offer was that the State would recommend five and one-half years in jail and that one of the charges would be to a sex charge. Your motion further says there was no "Rule 11c" sentence agreement. You indicate this plea was unacceptable because you were required to plead to a sex charge and there was no "Rule 11" sentence agreement in it. You further say you then requested Mr. Radulski to file a motion for a speedy trial.
The exact plea offer is not in the record. Your amended motion says the State had "the USI charge" (paragraph 25) included in the offenses to which you would have to plead guilty. You were indicted, however, for unlawful sexual intercourse in the first degree which has a minimum, non-suspendable sentence of fifteen years.
This again is a reference to former Superior Court Rule 11(d)(1)(c), now repealed, which provided the State and defense could agree to a sentence but ultimately the Court could reject the sentence agreement.
There is no record that such a motion was filed at that time. When you had your second "first" case review on May 24, 1999, you did not enter a plea and the case was set for a final case review. That was held on July 12, 1999 and, again, there was no plea. At that time, the Court entered a plea scheduling order stating:
Defendant shall have until August 16, 1999 to schedule the entry of a plea. Defense counsel must contact the Court (by notifying Renee Cote) by the above date to schedule the plea hearing.In the event that counsel does not obtain a date for the entry of a plea as ordered in the preceding paragraph, the Court will schedule the matter for trial automatically and without further notice or hearing.
Once the matter has been scheduled for trial, the parties shall be ready to proceed without further delay. The Court now considers discovery complete and the time for filing dispositive motions has passed.
There shall be no further case reviews for this case.
Docket No. 12.
You were given until August 16, 1999 to indicate you were going to plead. If not, the case would automatically be set for trial. That order was entered after a discussion in court involving you, Mr. Radulski, the prosecutor and the judge. Pertinent portions of that discussion follow:
MR. RADULSKI: Mr. Robinson is a final Case Review. He's got a series of charges. Basically, he's been offered a Rule 11 plea — not a Rule 11 plea, Your Honor, but a plea to a lesser-included offense of the lead charge, which is unlawful sexual intercourse first degree. He's been offered a contact second. But he also has several other serious charges, the bottom line of which would result in a presumptive guideline sentence of 75 months.
I spoke to the prosecutor about this, and that's what he's agreed would be the recommendation if Mr. Robinson were to enter into the plea.
Mr. Robinson understands the possibility of conviction of the more serious charge; specifically, the USI first. Nevertheless, he's elected to proceed to trial on the matter, and we simply ask that the matter be set for trial.
He understands he's not going to have an opportunity to plead this matter out at a later date; that we'll have to proceed forward to trial.
THE COURT: To make sure that we are on the same page, you are looking at a lot of jail time. You need to recognize that, obviously, if you want to go to trial, that is your right, and we'll provide you the opportunity.
You should not, however, just not think about the consequences of the decision you're making because, obviously, if you are convicted of all these charges, many of which would require mandatory time associated with them, you could be facing a relatively — you'd be a relatively old person when you got out of jail. So I take it you've thought about that.
THE DEFENDANT: Yes.
THE COURT: And you prefer to go to trial in regards to these matters?
THE DEFENDANT: To be honest with you, no, sir, I'd rather not go to trial. The gentleman came to me with a plea, and I said to the gentleman alongside of me that I didn't do these things. Some of these things, I didn't do, but I will plead. And I asked the gentleman to go back and talk to the prosecutors about this. Now, I don't know what they said.
MR. RADULSK I: Your Honor, he had a certain amount of time in mind; specifically, a two- or three-year sentence. And I relayed that to the prosecutor. Mr. Roberts, and it's not going to happen. Basically, he wants more time than three years. And that's were we are.
THE DEFENDANT: Your Honor, I'm not a bad fellow. I mean that. I'm not. And I'm ready to resolve this thing right now for good, if it's possible.
MR. ROBERTS: Three years is not acceptable to the State, Your Honor.
THE DEFENDANT: Three years is not acceptable?
THE COURT: It looks like there's not a meeting of the minds. Mr. Robinson, how many — What was he offered?
MR. ROBERTS: Five and a half years, U.S.C. second, assault first, aggravated menacing, and —
THE DEFENDANT: Possession of a deadly weapon.
MR. ROBERTS: — possession of a deadly weapon.
* * *
THE COURT: . . . Now, do you want to have some time to think about it or do you want to just set the matter for trial and bring it to trial?
THE DEFENDANT: Your Honor, I have thought about it. Like I said before, the majority of the charges, I did not do. Now, what I did — no, I'm not talking — I'm not going to say what I did. What I did do, I will plead guilty to it. There are charges that the prosecutor has come back with to me that I did not do. This is my problem here. I am willing to resolve this now, if it's possible, with the prosecutor.
THE COURT: Well, I think — My guess is, and I can't speak for the State, but my guess is that the exact charges probably are negotiable. Time isn't negotiable.
MR. ROBERTS: That's correct, Your Honor.
THE COURT: And so what I'm going to do, Mr. Robinson, is I'm going to set the matter for trial, but I'm going to give you 30 days to work it out.
So what you need do is communicate with your attorney as to what of the charges that are in these documents that you think you could plead guilty to because you've done them, and let him go back to the prosecutor and say, Mr. Robinson is willing to plead guilty to these offenses, and if you let him plead guilty to these offenses, this equals the amount of time the State wants, and see if you can't work it out. Okay?
THE DEFENDANT: Yes, sir.
Case Review Transcript (July 12, 1999) at 2-7.
In that period of time, you claim you wrote Mr. Radulski asking for certain information to assist you in your decision-making. You refer to several letters which you wrote in July 1999. Most of those letters are an effort to explain why you should not be charged with possession of a deadly weapon by a person prohibited. An element of that charge is an alleged 1997 conviction in the Court of Common Pleas. The bulk of the four letters you attached to your amended motion address what you contend is erroneous about that conviction.
In several letters, however, you ask about getting Rule 16 discovery such as codefendant statements, expert reports, copies of your videotaped statement, etc. In one letter to Mr. Radulski you thank him for the information he supplied you. There is one problem which those letters create. It is there was no codefendant in any of your charges. Further, except possibly for the sex charge, the State needed no experts to prove those charges. There is nothing in the Court's records, or your presentence file, to indicate you made any kind of statement and, if you did, whether it was recorded.
Defense Exhibit 8.
Your motion, however, does not state whether you actually made a statement. On a broader note, however, you do not link any discovery request or issues to any disposition of this case. In short, not only do you fail to show any problem with attorney performance, you fail to show any prejudice arising from what you complain about. On this claim, such as it is, of ineffectiveness, your motion fails.
Stone, 690 A.2d 924.
The correspondence with Mr. Radulski just reviewed is not the most serious allegation of ineffective assistance of counsel which you make. In paragraph 30 of your amended motion, you assert that on two occasions, during the July 12-August 16, 1999 "plea window," you wrote Mr. Radulski, but did not copy anyone else, stating you would accept the State's plea offer. You attached copies of these two letters. One is dated July 26, 1999 and the other August 1, 1999. In both, you say you are willing to accept the State's five and one-half year plea offer. Clearly, if you had written to Mr. Radulski saying you were willing to accept the offer, and he took no action to communicate that to the Court, that could constitute ineffective assistance of counsel.
The State in that July 1999 offer was making a sentencing recommendation. The sentencing judge was free to ignore it. Making out a case of prejudice in these circumstances is debatable.
Because of the obvious importance of this particular claim and its consequences, the Court needed a response from M r. Radulski. At first, the Court sought to do this by affidavit. Mr. Radulski responded with an affidavit which has several interesting features. One, he referred to having to respond to a complaint you made to Disciplinary Counsel making similar allegations that he ignored your two letters. He attached that response to his affidavit. Two, he notes this Court's docket reflects you wrote numerous letters. The Court's file contains 21 letters from you; 16 were written before you pled guilty. They were addressed to former Resident Judge Bifferato, current Resident Judge Cooch, Public Defender Lawrence Sullivan and others. Mr. Radulski's third point is that he could not find the two letters in question in his file. Fourth, he states you never communicated to him during the plea window that you were willing to accept the State's offer extended on July 12, 1999.
Superior Court Criminal Rule 61(g)(2).
The Court sent you Mr. Radulski's affidavit and you responded. But, the Court concluded it could not resolve the important factual issues raised on the basis of this exchange. Accordingly, an evidentiary hearing was held.
Superior Court Criminal Rule 61(h).
Mr. Radulski and you testified at that hearing. He stated, again, he did not recall receiving the two letters. His first knowledge of them, he said, was when disciplinary counsel sent him your complaint. If he had received either or both letters during the "plea window," Mr. Radulski said, he would have spoken to the prosecutor. The thrust of your letters in the summer of 1999 was to prepare for trial since there would be no plea. Even after you eventually entered a plea in May 2000, on the day set for trial, Mr. Radulski said you never mentioned a willingness to have pled back in 1999.
You testified that after initially rejecting the plea offer on July 12, 1999, you weighed the pros and cons. Your rejection, you said, was based mainly on the fact that those were your first felony charges. Other than the two letters, there was no other communication from you to Mr. Radulski during the "plea window" in which you stated that you were willing to take the plea.
Up until this point in the hearing, the Court was in no better position to resolve the fundamental issue of whether or not you had written Mr. Radulski between July 12 and August 16, 1999 to say you were willing to accept the plea offer. Because of something said at the hearing, the Court examined its file in front of all present to find a document. In that search, the Court came across three letters stapled together marked as Docket No. 63. One document is dated December 3, 2000 addressed "To whom it may concern" and received by the Prothonotary on December 5, 2000. You say, "I am Charles Harry Robinson, Jr. I want those two letter [sic] to be on file for the future."
The two letters are ones dated July 26, 1999 and August 1, 1999. They are not photocopies but are original ink versions. Their content is identical to the two letters of the same dates you attached to your amended Rule 61 motion. But, they are not identical in that line endings and spacing differ.
All are attached to this opinion. The copies attached to your motion are marked Exhibits A and B. The copies from the Court's file which you sent on December 3, 2001 are marked Exhibits C and D.
Other than the letters dated July 26, 1999 and August 1, 1999, you do not claim there was any other correspondence you sent to Mr. Radulski indicating a willingness to accept the July 12, 1999 plea offer. Nor have you stated in any of your submissions or during your testimony that you told Mr. Radulski verbally that you were willing to accept the offer.
The issue, therefore, for the Court to resolve is whether you sent such letters to Mr. Radulski during the plea window or at any other appropriate time. After considering all of the submissions, the testimony and reviewing its file, the Court concludes you did not.
Through July 12, 1999 and at final case review on that date, you had consistently resisted pleading guilty. Your insistence was so strong Mr. Tucker believed he could no longer be a benefit to you and was allowed to withdraw. Your reluctance shines through in the transcript of the July 12th final case review. Your correspondence with the Court and counsel focused on discovery issues and matters relating to the charges of possession of a deadly weapon by a person prohibited.
Your correspondence to the Court and pro se motions are revealing in other respects. For instance, in March 2000, you moved to dismiss Mr. Radulski as your attorney. You make several complaints about him but none that he failed to bring you to court to plead guilty to the State's July 12, 1999 plea offer. In a letter to Judge Bifferato dated April 24, 2000, you registered complaints about Mr. Radulski. One is that you were waiting to return to Judge Carpenter but you do not say you would have accepted the State's July 12th plea offer.
Docket No. 25.
Docket No. 42.
There are other letters in the file, one to Public Defender Lawrence Sullivan and his Chief Deputy Angelo Falasca. Both were written after the plea window closed. Again, you complain about Mr. Radulski but in neither letter do you state he failed to bring you to court to accept the July 12th plea offer. Your complaints in these and other letters are really about discovery matters, the length of time you were in jail, etc.; never about a missed plea opportunity.
The presence in the Court's file of the two other versions of the same letters about your alleged willingness to accept the plea resolves the issue confronting the Court. Mr. Radulski said he did not receive either of the letters. But, because of their significant change in your position of rejection, if he had received them, he testified, he would have gone to the prosecutor. The record is undisputed that he did not approach the prosecutor.
You wrote numerous, basically repetitive, complaints to this Court about Mr. Radulski, but never until your Rule 61 motion did you claim that he had failed to tell the prosecutor you had changed your mind about the plea offer. You testified you told the presentence investigator of problems with Mr. Radulski. No w here in the presentence report, however, is there a hint, statement or anything from you that you would have accepted the 1999 plea. That is important because the State, in that offer, was making a sentencing recommendation of five and one-half years. In the plea agreement you accepted in May 2000, there was no sentencing recommendation stated.
This Court's presentence officers are acutely attuned to defendants' expressions of unwillingness to plead guilty or desires to withdraw pleas. When such expressions are made, they are in the report and prompt judges to ask, before sentencing, what a defendant wants to do. Some pleas are withdrawn and some are not. It is probable that if you had remarked about the plea process to the investigator, as you claim, it would have been in the report. That would have promoted the Court, before sentencing, to inquire of you about any reluctance to proceed or a desire to withdraw your plea.
Even though not copies, by sending the "same" two letters to the Court four months after your sentencing, and seven months after your guilty pleas, and a few months before your original Rule 61 motion, explains why Mr. Radulski never got them. You never sent them during the time of the plea window. They are a sham.
It is highly improbable that Mr. Radulski would have ignored them, if he had, in fact, received them. You did not hesitate to correspond with this Court about him but you never raised that issue until your 2001 motion.
Accordingly, there is no basis for a claim of ineffective assistance of counsel against Mr. Radulski for ignoring your communications that you were willing to plead guilty during the 1999 plea window.
CONCLUSION
For the reasons stated herein, the motion for postconviction relief of defendant Charles H. Robinson, Jr., is DENIED.
IT IS SO ORDERED.