Opinion
Nos. IN01-08-0165, IN01-08-0168.
Submitted: January 8, 2004.
Decided: April 12, 2004.
Upon Defendant's Pro Se Motion for Postconviction Relief: DENIED.
ORDER
This 12th day of April, 2004, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, it appears to this Court that:
1. On September 10, 2001, the movant, Oliver L. Saunders ("Defendant"), was indicted by a Grand Jury and charged with Trafficking in Cocaine, in violation of 16 Del. C. § 4753A(a)(2)(a), Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance, in violation of 16 Del. C. § 4751, Possession of a Controlled Substance Within 1000 Feet of a School, in violation of 16 Del. C. § 4767(a)(1), Use of a Dwelling for Keeping Controlled Substances, in violation of 16 Del. C. § 4755(a)(5), Conspiracy Second Degree, in violation of 11 Del. C. § 512, and Possession of Drug Paraphernalia, in violation of 16 Del. C. § 4771. Defendant entered into a plea agreement on January 22, 2002, whereby, in exchange for all of the remaining charges against him being nolle prossed by the State, Defendant plead guilty to Trafficking in Cocaine and Conspiracy Second Degree. On the same date, the Court sentenced Defendant for Trafficking in Cocaine to three years incarceration at Level V, suspended for three years at Boot Camp Diversion Program; upon successful completion of the Boot Camp Diversion Program, the balance of the sentence to be suspended at Level III probation. On the conviction of Conspiracy Second Degree, the Court sentenced the Defendant to two years incarceration at Level V, suspended for two years at Level II supervision.
2. Subsequently, on April 9, 2002, a violation of probation report was filed with the Court alleging that the Defendant violated Condition 3 (failed to report to his scheduled office appointment on 2/20/02, and every Wednesday thereafter, and failed to report to his Boot Camp entry physical examinations on 3/4/02 and 3/06/02) and Condition 13 (Defendant was not present for a curfew check at his listed residence on 2/26/02 at 7:17 pm) of his supervision. After a capias was requested, Defendant was taken into custody on January 6, 2003, and adjudged guilty of violating his probation on January 30, 2003. The Court imposed the same sentence that it had previously imposed on January 22, 2002, and the Defendant was remanded to the custody of the Department of Corrections to complete his original sentence pursuant to the First Offenders Boot Camp Diversion Program.
3. On August 28, 2003, Defendant filed a pro se Motion for Modification of Sentence. Upon consideration of Defendant's motion, the Court denied the motion on October 3, 2003 because: 1) the motion had been filed more than ninety days after imposition of the sentence and was, therefore, time-barred; 2) the Court did not find the existence of any extraordinary circumstances; 3) the sentence imposed was mandatory and cannot be reduced or suspended; 4) no additional information had been provided to the Court which would warrant a reduction or modification of the sentence; and 5) Senate Bill No. 150 (amending Title 11 of the Delaware Code relating to probation) was not applicable to Defendant's case, as it is not retroactive.
4. Upon release, after completion of his six-month sentence at the Boot Camp Diversion Program, Defendant was taken into custody by the Bureau of Immigration and Customs Enforcement ("BICE") and transported to York County Prison, York, Pennsylvania. The BICE had initiated deportation proceedings against the Defendant. Because his conviction was not an aggravated felony, on November 14, 2003, Defendant was ordered to be deported pursuant to the BICE's Voluntary Departure guidelines. Defendant remains at York County Prison awaiting deportation.
5. Defendant filed this pro se motion for postconviction relief on January 2, 2004, wherein he seeks to set aside a judgment of criminal conviction based on violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Specifically, Defendant petitions the Court to "[v]acate his conviction, due to Ineffective Assistance of Counsel, under Post Conviction Relief, (PCRA) of the State of Delaware, or title 28 U.S.C. § 2254." As § 2254 deals with relief pursuant to a federal remedy, this Court has no jurisdiction to consider Defendant's motion as an application for a writ of habeas corpus under § 2254. However, the Court will consider the motion as one for postconviction relief under the precepts of Superior Court Criminal Rule 61.
§ 2254. State custody; remedies in Federal courts
§ 2254 provides, in pertinent part:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254 (2004).
Defendant asserts three grounds for relief in support of his contentions that his rights have been violated. As ground one, Defendant asserts ineffective assistance of counsel in violation of his rights under the Sixth Amendment. Defendant claims that "[c]ounsel failed to inform petitioner of the `direct consequences' of pleading guilty, that pleading guilty, will result in mandatory deportation." Further, he asserts, "[c]ounsel failed to argue that, petitioner was wrongfully convicted, and should only be charges with possession, because he was used by Leonard Love."
Defendant's Motion for Rule 61 Postconviction Relief, at 3, 8-12 (hereinafter "Def.'s Mot. at ___.").
Def.'s Mot. at 3.
Defendant claims that, "[u]nder the Federal Rules of Criminal Procedure (FRCP), the Court failed to examine the petitioner, [sic] if his guilty plea was made knowingly, voluntarily, or intelligently" as his second ground for relief. Finally, for his third ground for relief, Defendant avers that "[p]etitioner was sentenced to boot camp, without being informed of any possibility of deportation, of which he is now suffering, the `direct consequences.'"
Def.'s Mot. at 3, 7-8.
Def.'s Mot. at 3, 7-8.
6. Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
State v. Gattis, 1995 WL 790961, at *3 (Del.Super.Ct.) (citing Younger, 580 A.2d at 554).
7. Upon initial review of Defendant's motion for postconviction relief, the Court finds that because Defendant's postconviction motion was filed within three years after the judgment of conviction became final, he is not procedurally barred from relief under Rule 61(i)(1). The time bar of Super. Ct. Crim. R. 61(i)(1) provides:
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
SUPER. CT. CRIM. R. 61(i)(1).
Also, as this is Defendant's initial motion for postconviction relief, the bar of Rule 61(i)(2), which precludes consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred unless consideration of the claim is warranted in the interest of justice." The "interest of justice exception of Rule 61(i)(4) has `been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant].'" The three grounds for relief contained in Defendant's postconviction motion were not formerly adjudicated. Therefore, Rule 61(i)(4) is also inapplicable as a bar to Defendant's claim for relief.
SUPER. CT. CRIM. R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Rule 61(i)(3) contains another bar, by providing that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." Defendant's claims were not raised at the plea, sentencing, or on a direct appeal, and are therefore barred by Rule 61(i)(3), absent a demonstration of cause for relief from the default and prejudice.
SUPER. CT. CRIM. R. 61(i)(3) (emphasis added).
In consideration of Defendant's grounds for relief, an allegation of ineffective assistance of counsel is a type of claim not subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal unless the claim was adequately raised in the lower court. As such, Rule 61(i)(3) does not bar relief to these claims at this juncture should the Defendant demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions.
See SUPR. CT. R. 8; Wright v. State, 513 A.2d 1310, 1315 (Del. 1986); Harris v. State, 293 A.2d 291, 293 (Del. 1972).
Lastly, the procedural bars of Rule 61 may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraphs (1), (2), and (3) shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." This "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." Defendant has not asserted a colorable claim of a miscarriage of justice in his motion. Therefore, Rule 61(i)(5) is not applicable.
SUPER. CT. CRIM. R. 61(i)(5).
Younger, 580 A.2d at 555.
8. Accordingly, Defendant's three grounds for relief can be consolidated into two prevailing issues: 1) his guilty plea was not made knowingly, voluntarily, and with a full understanding of the potential consequences, i.e. deportation; and 2) his trial counsel was ineffective for failing to advise him that the plea he entered may result in the consequence of deportation. In relation to the allegations contained in his third ground for relief, the fact that Defendant was sentenced to Boot Camp is an entirely disparate issue from the reality that he may suffer the consequences of deportation. The six-month Boot Camp sentence imposed by this Court is unrelated to any "direct consequences" that Defendant may be exposed to resulting from his conviction. The Court knows of no requirement that Defendant be apprised of the specter of impending deportation looming ahead upon the Court imposing sentence. Also, as the Court will further explicate, the phrase "direct consequence" is a legal term of art that implicates a defendant's penumbra of rights at the time a plea is entered by a defendant, and is unrelated to Defendant's intended meaning. As such, Rule 61(i)(3) is the only applicable avenue of postconviction relief available to the Defendant through which he may seek to advance, substantiate, and prove his claim of an involuntary guilty plea, and indirectly, his related claim of ineffective assistance of counsel.
It is unequivocal that, in accepting a guilty plea, the Court must be satisfied that the plea is entered into knowingly, intelligently, and voluntarily. A defendant bears the burden of proving that his plea was involuntary or that he misapprehended his legal rights. Upon a contention of an involuntary guilty plea, a defendant must demonstrate a manifest injustice to permit withdrawal of his guilty plea.
Barkley v. State, 724 A.2d 558, 559 (Del. 1999) (citing Sullivan v. State, 636 A.2d 931, 937 (Del. 1994), cert. denied, 513 U.S. 833 (1994)); State v. Christie, 655 A.2d 836, 838 (Del.Super.Ct. 1994), aff'd, 1994 WL 734468 (Del.) (citing Brown v. State, 250 A.2d 503, 505 (Del. 1969)); State v. Insley, 141 A.2d 619 (Del. 1958).
Raison v. State, 469 A.2d 424, 425 (Del. 1983).
Harris v. State, 2000 WL 990921, at *3 (Del.); see also Keel v. United States, 585 F.2d 110, 114 (5th Cir. 1978) (holding that, in a collateral attack on a guilty plea, although the trial judge had overstated the maximum penalty the defendant could receive while accepting the defendant's guilty plea, this technical violation did not prejudice the defendant); Allen v. State, 509 A.2d 87 (Del. 1986); Smith v. State, 451 A.2d 837 (Del. 1982) (establishing the manifest injustice standard when considering whether to allow a defendant to withdraw a guilty plea).
The issue of a defendant maintaining an alleged involuntary entry of a guilty plea, coupled with the unbeknownst knowledge of an ensuing potential risk of deportation, is not new to this Court. In the decisive case of State v. Christie, this Court established, and the Delaware Supreme Court affirmed, that the risk of deportation is a collateral consequence, not a "direct consequence," of entering a guilty plea, and that counsel is not required to advise a defendant of such risk. In affirming this Court's decision in Christie, the Supreme Court stated that Delaware has "[a]lign[ed] ourselves with those jurisdictions which have deemed the risk of deportation a collateral consequence of a guilty plea." Furthermore, and equally significant, a collateral consequence "[i]s not something a defendant must be apprised of prior to entering a guilty plea in order for that plea to be knowing and voluntary."
State v. Christie, 655 A.2d 836, 838 (Del.Super.Ct. 1994), aff'd, 1994 WL 734468 (Del.) (emphasis added); see also State v. Fowler, 2001 WL 1198675 (Del.Super.Ct.), aff'd, 797 A.2d 1206 (Del. 2002); State v. Sutherland-Cropper, 1996 WL 33347484 (Del.Super.Ct.).
Christie v. State, 1994 WL 734468, at *1 (Del.).
Sutherland-Cropper, 1996 WL 33347484, at *2 (citing State v. Stewart, 1995 WL 656823, at *1 (Del.Super.Ct.)).
As a direct result of the holding in Christie, the Superior Court amended its guilty plea form by supplementing it with cautionary language concerning the effect of a guilty plea on a non-citizen. This amendment to the guilty plea form was initiated to "avoid further misunderstandings in the guilty plea process." Notwithstanding the fact that the risk of deportation is an inherently collateral consequence that a non-citizen must contemplate upon entering a guilty plea, in the absence of clear and convincing evidence to the contrary, a defendant is bound by his signed statement on a guilty plea form. A defendant is also bound by his oral statements and answers made in response to the Court's verbal questions.
Christie, 1994 WL 734468, at *1; Fowler, 2001 WL 1198675, at *1.
Christie, 1994 WL 734468, at *1; Fowler, 2001 WL 1198675, at *1.
Little v. Allsbrook, 731 F.2d 238, 239-40 n. 2 (4th Cir. 1984); Fullman v. State, 1989 WL 27739, at *2 (Del.); State v. Miles, 1999 WL 743334, at *2 (Del.Super.Ct.).
State v. Stafford, 1991 WL 53401, at *2 (Del.Super.Ct.).
The basis for the entry of a guilty plea must appear on the record to permit appellate review. In considering the proper procedures that are a condition precedent for the Court to accept a guilty plea, this Court has held that a "rigid, formalistic approach to compliance" is not necessary. Numerous safeguards are afforded to the defendant offering a guilty plea. Prior to accepting a guilty plea, the trial judge must address the defendant in open court. The judge must determine that the defendant understands the nature of the charges and the penalties provided for each of the offenses. The record must reflect that the defendant understands that the guilty plea constitutes a waiver of a trial on the charges and a waiver of the constitutional rights to which he would have been entitled to exercise at trial. The trial judge must also determine that a guilty plea is not the result of force, threats, or promises apart from the plea agreement, i.e., that it is voluntary.
Sullivan v. State, 636 A.2d 931, 937 (Del. 1994).
Patterson v. State, 684 A.2d 1234, 1237 (Del. 1996).
Sullivan, 636 A.2d at 937.
Id.
Id. (citing SUPER. CT. CRIM. R. 11(c)).
Id. (citing SUPER. CT. CRIM. R. 11(d)); Howard v. State, 458 A.2d 1180, 1184-85 (Del. 1983).
In order for a court to decide whether a defendant voluntarily entered a plea, it must determine whether the defendant understood the direct consequences of pleading guilty. Even though Defendant claims that he was not aware of the collateral consequence of possible deportation, he does not allege that he misunderstood any direct consequences of pleading guilty. Also, the record unambiguously indicates that the Defendant was made aware of, and understood, the direct consequences of pleading guilty. The direct consequences of entering a plea as enumerated in Federal Rule 11, after which this Court's Rule 11 was patterned, include, but are not limited to, the trial and appeal rights being waived, the potential maximum sentence, any mandatory minimum sentences, and possible defenses being waived.
State v. Sutherland-Cropper, 1996 WL 33347484, at *1 (Del.Super.Ct.) (citing State v. Stewart, 1995 WL 656823, at *1 (Del.Super.Ct.)).
Christie, 655 A.2d at 840.
In the case at bar, after reviewing the record, including the plea agreement, the Truth-In-Sentencing Guilty Plea Form, and the transcript of the plea and sentencing colloquy, the Court is convinced that the Defendant's plea was made knowingly, voluntarily, and intelligently. The Defendant signed the Truth-In-Sentencing Guilty Plea Form which states, in italicized print: " NON-CITIZENS: Conviction of a criminal offense may result in deportation, exclusion from the United States, or denial of naturalization." As stated previously, this cautionary language was inserted into the guilty plea form to avoid misunderstandings by defendants, such as the Defendant here, regarding the consequences of entering a plea. Moreover, during the guilty plea colloquy, the Defendant acknowledged to the Court that he had read and understood the Truth-In-Sentencing Guilty Plea Form, discussed the matter fully with his attorney, and was satisfied with his attorney's representation. Defendant's counsel read and reviewed the guilty plea form with the Defendant, which contained the warning to non-citizens about the possibility of deportation for criminal convictions. Further, the Defendant denied that he was under the influence of alcohol or drugs at the time of the hearing, that anyone had threatened or forced him to plead guilty, or that he was promised anything to induce his guilty plea. With or without the witness oath, a defendant's statements to the Court during the guilty plea colloquy are presumed to be truthful. Those contemporaneous representations by a defendant pose a "formidable barrier in any subsequent collateral proceedings."
Bramlett v. A.L. Lockhart, 876 F.2d 644, 648 (8th Cir. 1989); Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Davis v. State, 1992 WL 401566, at *2 (Del.).
Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (quoting Blackledge v. Allison, 431 U.S. 63, 73 (1977)).
In summation, since the Defendant read, signed, and understood the guilty plea form, which contained the admonition of cautionary language regarding the risk of deportation for criminal conviction, his plea was entered knowingly, voluntarily, and intelligently regarding the possibility of deportation. As deportation is a collateral consequence of entering a guilty plea, Defendant need not have been apprised of this collateral consequence prior to entering his guilty plea, in order for that plea to be knowing and voluntary, nor was his counsel under any duty to discuss that possibility with the Defendant.
As to Defendant's other substantive claim, since an allegation of ineffective assistance of counsel is a type of claim not subject to the procedural default rule, to prevail on his claim of ineffective assistance of counsel, the Defendant must fulfill the two-prong test of Strickland v. Washington. First, a criminal defendant who raises an allegation of ineffective assistance of counsel must show that counsel's representation fell below an objective standard of reasonableness. The defendant must demonstrate that counsel's performance was deficient. This entails demonstrating that "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Further, it is the defendant's burden to show, under the totality of the circumstances, that "counsel was so incompetent that the accused was not afforded genuine and effective legal representation."
Strickland v. Washington, 466 U.S. 668 (1984); accord Larson v. State, 1995 WL 389718, at *1 (Del.); Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992); Albury v. State, 551 A.2d 53, 58 (Del. 1988).
Strickland, 466 U.S. at 688.
Id. at 687.
Id.
Renai v. State, 450 A.2d 382, 384 (Del. 1982) (citations omitted).
Second, under Strickland, a defendant must show that there is a reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different; that is, he must show actual prejudice. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." The defendant must illustrate that the deficient performance prejudiced the defense. Stated another way, a defendant alleging prejudice must be able to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland, 466 U.S. at 694.
Id. at 687.
Id.
Id.
Righter v. State, 704 A.2d 262, 264 (Del. 1997); Younger, 580 A.2d at 556; Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
A defendant's burden to establish a claim of ineffective assistance of counsel is difficult since there is a strong presumption that the attorney's conduct was professionally reasonable. This standard is highly demanding. In fairly assessing an attorney's performance, the standards enumerated in Strickland require that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Defendant must also "[o]vercome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Therefore, under Strickland, the Court's analysis must be comprised of two components: 1) whether defense counsel's performance was deficient; and if so, 2) whether the deficient performance resulted in prejudice that "so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict rendered suspect."
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689); see also Larson, 1995 WL 389718, at *1; Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Flamer, 585 A.2d at 754.
Strickland, 466 U.S. at 689.
Id.
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
In this case, based on the foregoing, Defendant has failed to substantiate a claim of ineffective assistance of counsel. First, with respect to Defendant's allegation that his counsel failed to argue that he was "wrongfully convicted, and should only have been charged with possession because he was used by Leonard Love," Defendant entered into a plea agreement with the State and the case never went to trial. Consequently, his counsel was not required to argue Defendant's contention of mere possession.
Second, the record undeniably confirms that Defendant's counsel reviewed the guilty plea form with the Defendant, which includes the cautionary language regarding the risk of deportation. Defendant acknowledged this fact when he answered "yes" on the guilty plea form to the question of whether his attorney had fully advised him of his rights. Even ignoring this evidence, and assuming that Defendant's counsel never advised him of the risk of deportation by entering a guilty plea, counsel would not have erred if he failed to read and review, or otherwise advise the Defendant, of the potential of deportation, as deportation is only a collateral consequence to a plea. Additionally, pursuant to the holding in Christie, counsel was not required to advise the Defendant of such a risk. Therefore, counsel's failure to advise the Defendant of the peril of deportation, whether truth in fact or not, does not rise to the level of a violation of Strickland's first test that counsel's representation fell below an objective standard of reasonableness. Having concluded that counsel's representation of Defendant was not below the objective standard of reasonableness, Defendant has failed to substantiate the first-prong of the Strickland test. Therefore, the Court need not consider the second-prong of actual prejudice under Strickland (reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different).
Strickland, 466 U.S. at 694.
9. In conclusion, within the parameters of Rule 61(i)(3), Defendant's motion is procedurally barred because he has failed to demonstrate "(A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights." Additionally, under Strickland, Defendant has failed to prove that his counsel's representation was anything less than effective. Thus, the motion must be denied on procedural and substantive grounds.
For all the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is hereby DENIED.