Opinion
ID# 0305001676.
Submitted: November 1, 2005.
Decided: November 4, 2005.
Upon Defendant Marc Wilson's Motion for Rule 61 Post-Conviction Relief — DENIED
Marsha J. White, Esquire, Department of Justice, State Office Building, 820 N. French Street, Wilmington, Delaware, 19801, Counsel for the State.
Kevin P. O'Neill, Esquire, 1201 North King Street, Wilmington, Delaware, 19801, Counsel for Defendant.
Joseph A. Hurley, Esquire, 1215 King Street, Wilmington, Delaware, 19801, Prior Counsel for Defendant.
OPINION
I. Factual and Procedural Background
On January 30, 2004, the Court sentenced the Defendant on one count of Reckless Endangering First Degree to five years at Level V, suspended after three years and six months, for one year at Level IV work release, suspended after six months for six months at Level III. On February 20, 2004, the Defendant filed a Motion to Modify Sentence. The Court heard the Defendant's Motion on February 18, 2005. That Motion was denied on May 26, 2005. On August 23, 2005, the Defendant filed the instant Motion for Rule 61 Postconviction Relief.
State v. Wilson, Del. Super., ID No. 0305001676, Jurden, J. (May 26, 2005) (ORDER).
II. Summary of Defendant's Allegations
In the present motion for postconviction relief, the Defendant claims that (1) the Court imposed an illegal sentence, (2) the Defendant's prior counsel was ineffective, and (3) the Court's sentence is violative of the U.S. Supreme Court's decision in Blakely v. Washington. For the reasons that follow, the Defendant's Motion for Post Conviction Relief is DENIED.
Blakely v. Washington, 542 U.S. 296 (2004).
III. Discussion
Before addressing the merit of claims underlying a motion for postconviction relief, the Court must determine whether the procedural bars of Superior Court Criminal Rule 61 apply. The Defendant's motion is not procedurally barred. It is the Defendant's first postconviction motion and it is timely filed. It only raises claims related to imposition of an illegal sentence and ineffective assistance of counsel, neither of which has been previously adjudicated. Accordingly, the Court will address the Defendant's substantive arguments.A. The Defendant Claims his Sentence is Illegal.
In support of this claim, the Defendant argues that the Court failed to articulate "substantial and compelling reasons" justifying an upward departure from the SENTAC sentencing guidelines. The guidelines allow the Court to "impose a sentence outside the standard sentence range . . . if it finds . . . substantial and compelling reasons" justify an "exceptional sentence." When such a sentence is decreed, the governing factors leading to the sentence "must be stated in the record."
SENTAC Delaware Sentencing Accountability Commission Benchbook.
Id. at 94.
Id.
According to the SENTAC guidelines, the statutory range for Reckless Endangering First Degree, a Class E violent felony, is 0 to 5 years at Level V. The presumptive sentence is 0 to 15 months at Level V. The Court identified two aggravating factors and one mitigating factor before imposing the disputed sentence. Specifically, the Court identified "vulnerability of victim" and "undue depreciation of offense" as the aggravating factors, and the Defendant's lack of prior convictions as the mitigating factor.
Id.; Tr. Sentencing, State v. Wilson, Del. Super., ID No. 0305001676, at 15-16 (2004).
The Court found the Victim was vulnerable because she was abused multiple times by the Defendant prior to the events that gave rise to the Defendant's guilty plea of Reckless Endangering First Degree. The Defendant was extremely controlling, manipulative, demanding, and menacing, and thereby dominated the Victim, who was too terrified to resist his control or stand up for herself. The Defendant's domination of the Victim, often through sexual abuse and control, rendered her defenseless, demoralized and incapable of freeing herself from his clutches. The circumstances leading up to and surrounding the Defendant strangling the Victim portray a violent abuser and a battered victim. At sentencing, the Court had ample evidence of a disturbing cycle of domestic violence and abuse upon which to conclude that the vulnerability of the Victim was an aggravator.
After reviewing the circumstances that gave rise to the plea, the Court determined that not deviating upward from the presumptive sentence would unduly depreciate the cruelty of this particular crime. The Defendant banged his wife's head on the floor, yelling that he was going to kill her, and strangled her until she lost consciousness. As the State pointed out during the sentencing hearing:
Tr. Sentencing at 15.
It's fortunate, Your Honor, that [the Victim] was here today to speak to you. And you know why I say it was fortunate? It's merely luck that Marc Wilson isn't here on a murder case.
Id. at 8.
After careful consideration of these factors, the Court found the presumptive sentence inadequate for the criminal acts committed by the Defendant against his wife. The sentencing recommendations contained in the guidelines "are not binding on a sentencing court." In Siple v. State, the Delaware Supreme Court explained that Administrative Directive Number Seventy-Six, which implemented the guidelines, provides that:
Id. at 15-16.
State v. Dorman, 1998 WL 960780, at *1 (Del.Super.Ct.).
Any judge who finds a particular sentencing standard inappropriate in a particular case because of the presence of aggravating or mitigating or other relevant factors need not impose a sentence in accordance with the standards but such judge shall set forth with particularity the reasons for the deviation.
Siple v. State, 701 A.2d 79, 82 (Del. 1997) (quoting Administrative Directive Number Seventy-Six, Del. Supr., Christie, C.J. (Sept. 15, 1987)).
"Thus, the trial court must explain its reasons for doing so, but is authorized to exceed the SENTAC guidelines without making any factual findings beyond those reflected in the jury's verdict."
Benge v. State, 2004 WL 2743431, at *1 (Del.Supr.).
B. The Defendant Claims Prior Counsel was Ineffective.
The Defendant alleges that prior counsel (1) failed to file an appeal and thereby deprived him of "an independent review by the higher Court to his prejudice," (2) caused him to plead guilty to "the worst charge" in the Indictment "without any sentence recommendation by the State," and (3) failed to raise Blakely on his behalf.
Mot. Post Conviction Relief at 4 ("[I]t is impossible to discern what value . . . [prior counsel] actually served to the defendant. He would have been better off taking his changes at trial. According to the defendant . . . he never would have taken the plea but for . . . [prior counsel's] assurances that given his lack of criminal history he would receive a light sentence."). (D.I. 52).
To sustain a claim of ineffective assistance of counsel, a defendant must satisfy the two prong test set forth in Strickland v. Washington. Under the Strickland test a defendant must demonstrate that (1) "his counsel's conduct fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for his counsel's errors, he would not have pled guilty but would have insisted on going to trial." A defendant asserting such a claim must "make concrete allegations of cause and actual prejudice . . . to avoid summary dismissal." Further, there is a strong, but not insurmountable, presumption "that counsel's representation was professionally reasonable." Thus, to succeed with an ineffective assistance of counsel claim, a defendant must satisfy the "cause" prong and establish prejudice.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Grosvenor v. State, 849 A.2d 33, 35 (Del. 2004), citing Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Grosvenor, 849 A.2d at 35, citing Younger v. State, 580 A.2d 552, 556 (Del. 1990).
849 A.2d at 35, citing Albury v. State, 551 A.2d 53, 59 (Del. 1988).
With regard to the Defendant's first allegation, as explained above, the Court has discretion to impose the sentence it deems appropriate under the guidelines. The sentencing standards are "voluntary and nonbinding . . . no party to a criminal case has any legal or constitutional right to appeal to any court a statutorily authorized sentence which does not conform to the sentencing standards." Therefore, prior counsel's failure to file a direct appeal was not objectively unreasonable given there was no meritorious legal basis to justify an appeal of the Defendant's sentence.
Siple, 701 A.2d at 82; Benge, 2004 WL 274343, at *1.
Aff./Resp. to Claim of Ineffective Assistance of Counsel at 1 (D.I. 57).
As to the Defendant's second allegation, "[i]t is well established that a 'defendant's statements to the Court during the guilty plea colloquy are presumed to be truthful.'" Moreover, absent "clear and convincing evidence to the contrary, [a defendant] is bound by his answers on the Truth-in-Sentencing Guilty Plea Forms and by his testimony prior to the acceptance of the guilty plea." It is undisputed that before sentencing, both prior counsel and the Court told the Defendant the maximum sentence under the statutory range for Reckless Endangering First Degree was five years at Level V. The Defendant himself stated inter alia during his October 27, 2003 plea colloquy that (1) there were no promises made to him that were not set forth on the written plea agreement, (2) no one forced him to plead guilty, (3) he understood he was waiving his appellate rights, (4) the maximum penalty for the crime he was pleading guilty to was five years, (5) he was satisfied with his counsel's representation and that his counsel had fully advised him of his rights, and (6) he was voluntarily pleading guilty. Further, the Defendant executed and signed his Truth-in-Sentencing Guilty Plea Form that clearly states he faced a total consecutive maximum penalty of five years incarceration. Therefore, the Defendant's claim that prior counsel "caused" him to plead guilty fails as "concrete allegation" because the record shows the Defendant represented to the Court that he was not forced to plead guilty and that he did so voluntarily with knowledge that the maximum penalty for his crime was five years.
State v. McCurley, 2004 WL 2827857, at *5 (Del.Super.Ct.); State v. Denston, 2003 WL 22293651, at *5 (Del.Super.Ct.) (citing Bramlett v. Lockhart, 876 F.2d 644, 648 (8th Cir. 1989)).
Savage v. State, 2003 WL 214963, at *2 (Del.Supr.), citing Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
Tr. of Plea Colloquy, State v. Wilson, Del. Super., ID No. 0305001676, at 3, 4, 7-8 (2003).
Id. at 6-9.
Truth-In-Sentencing Guilty Plea Form (Oct. 27, 2003).
Grosvenor, 849 A.2d at 35.
Even assuming arguendo prior counsel told the Defendant he did not think the Court would sentence beyond the presumptive guideline, given the Defendant's statements and signed Truth-in-Sentencing Sentencing Form, the Defendant fails to establish that prior counsel's conduct fell below an objective standard of reasonableness or that he would not have pled guilty. C. The Defendant Claims Blakely v. Washington Applied to his Sentencing.
Id.
Both the Defendant's third ineffective assistance of counsel allegation and his final claim assume that Blakely applies to his sentencing. The Defendant asserts that prior counsel failed to make a Blakely argument on his behalf and that the resulting sentence is violative of the Blakely decision. However, both claims must be summarily dismissed in light of the Delaware Supreme Court's holding in Benge v. State. In Benge, the Supreme Court held that " Blakely does not impact Delaware's sentencing scheme because the SENTAC guidelines are voluntary and non-binding." It also reiterated in part that pursuant to its holding in Siple, "Delaware, unlike the federal and several state jurisdictions, has not provided for appellate review of criminal punishments that deviate from sentencing guidelines." Thus, so long as the trial court explains its reasons for exceeding the SENTAC guideline, as required by its Administrative Directive Number Seventy-Six, it is authorized to do so. Moreover, a defendant's sentence is not "enhanced" within the meaning of Blakely when he is sentenced to the statutory maximum or less. Consequently, Blakely is inapplicable to the Defendant's sentencing. Prior counsel's failure to raise it was not objectively unreasonable, and this Court's sentence is legal.
Blakely v. Washington, 542 U.S. 296 (2004).
Benge, 2004 WL 2743431, at * 1-2.
Id. at *1.
Id.
Id. at *2.
State v. Webb, 2005 WL 950120, at *3 (Del.Super.Ct.).
For the foregoing reasons, the Defendant's Motion for Post-Conviction Relief is DENIED.