Opinion
ID. No. 1306021658
07-31-2017
STATE OF DELAWARE v. JAMAR A. TROWER Defendant.
Stephen R. Welch, Jr., Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Jamar Trower, Pro se.
RK13-07-0143-01
Failure to Reg as a Sex Offender
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Stephen R. Welch, Jr., Esq., Deputy Attorney General, Department of Justice, for the State of Delaware. Jamar Trower, Pro se. FREUD, Commissioner
The defendant, Jamar A. Trower ("Trower") pled guilty on February 24, 2014 to one count of Failure to Register as a Sex Offender, 11 Del. C. § 4120. As part of the plea a nolle prosequi was entered on the remaining charge of Failure to Provide Verification as a Sex Offender. The State moved to have Trower declared an Habitual Offender pursuant to 11 Del. C. § 4214(a). A presentence investigation report was ordered. On August 13, 2014, the court granted the motion to declare Trower a habitual offender, Trower agreed he was a habitual offender. The Court then sentenced him three years at Level V incarceration, followed by one year at Level III with credit for time served. Had Trower gone to trial and been found convicted as charged he faced the possibility of life in prison as a habitual offender.
Trower did not appeal his conviction or sentence to the Delaware Supreme Court. Instead he filed a motion for postconviction relief. The Court signed an order requesting that the Office of Conflicts Counsel appoint counsel for Trower. After reviewing the file, Appointed Counsel determined that there were no meritorious grounds for relief and filed a Motion to Withdraw Pursuant to Superior Court Criminal Rule 61(e)(2) with a supporting Memorandum. The memorandum detailed her review of the case and Trower's arguments. The Court granted Appointed Counsel's Motion to Withdraw. Trower did not file any response to the motion to withdraw or present any additional grounds for relief. Trower's original counsel and the State responded to Trower's pro se motion.
FACTS
Trower was convicted of Unlawful Sexual Contact Second Degree on November 25, 2002 and was placed on the Sex Offender Registry on May 14, 2003, Tier II sex offender. Trower is required to respond to the State Bureau of Investigation ("SBI") every May and verify his information. He was released from incarceration on March 11, 2013 and was required to respond to SBI within three days of his release to register his information. Trower failed to do so. Consequently he was arrested for Failure to Register.
TROWER'S CONTENTIONS
In Trower's pro se Motion for Postconviction Relief, he raises the following grounds for relief:
Ground one: Ineffective assistance of counsel.
Attorney lied to me. I was told that if the state wasn't seeking the hubiloal (sic), and they where (sic) declaring me the hubitaul (sic) I would get less time.
Ground two: Overly sentences.
My charge was failure to register as a sex offender. Only carys (sic) 0-2. I was giving (sic) 3 years and 1 year level 3 probation.
Ground three: Mislead Into taking Plea.
Attorney William Deely convinced me into taking the plea, had me misleaded (sic) thinking that I was going to get a lot of time.
Trower did not file a supporting memorandum. The three grounds represent all of his arguments.
DISCUSSION
Under Delaware law, this Court must first determine whether Trower 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 Trower'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 Trower'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 Trower'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 Trower'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, Trower 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 Trower has failed to allege any facts sufficient to substantiate his claim that his attorney was ineffective. I find trial counsel's affidavit and Appointed Counsel's motion to withdraw, in conjunction with the record, more credible that Trower's self-serving claims that his counsel's representation was ineffective. Trower's counsel clearly denies the allegations. Furthermore, Appointed Counsel thoroughly reviewed the record in this case and concluded that none of Trower's claims were meritorious and that no other meritorious claims could be found.
As noted, Trower was facing the possibility of life in prison had he been convicted, and the sentence and plea were reasonable under all the circumstances, especially in light of the evidence against him. Prior to the entry of the plea, Trower and his attorney discussed the case. The plea bargain was clearly advantageous to Trower. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Trower 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, Trower has failed to establish that his counsel's representation was ineffective under the Strickland test.
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 Trower was somehow deficient, Trower 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, Trower simply asserts that his counsel was ineffective. His statements are insufficient to establish prejudice, particularly in light of the evidence against him. Therefore, I find Trower'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 Trower 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 Trower whether he understood the nature of the charges, the consequences of his pleading guilty, and whether he was voluntarily pleading guilty. The Court asked Trower 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 Trower if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Trower if he was entering into the plea as he was guilty of the charge. The Court asked Trower if he was aware he faced the possibility of life in prison due to his habitual offender status. The Court also asked Trower if he was satisfied with this counsel's representation. Trower answered each of these questions affirmatively. I find counsel's representations far more credible than Trower's self-serving, vague allegations.
Godinez v. Moran, 509 U.S. 389, 400 (1993).
State v. Trower, Del. Super., ID No. 1306021658 (Feb. 26, 2014) Tr. at 3-7.
Furthermore, prior to entering his guilty plea, Trower signed a Guilty Plea Form and Plea Agreement in his own handwriting. Trower'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. Trower 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 Trower entered his guilty plea knowingly and voluntarily and that Trower's grounds for relief are completely meritless.
Sommerville, 703 A.2d at 632. --------
CONCLUSION
I find that Trower's counsel represented him in a competent and effective manner and that Trower has failed to demonstrate any prejudice stemming from the representation. I also find that Trower's guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Trower's motion for postconviction relief as procedurally barred and completely meritless.
/s/ Andrea M. Freud
Commissioner AMF/dsc