Opinion
ID No. 0505011529 (R-1).
June 22, 2007.
Dear Mr. Bowen:
On June 1, 2007, the Prothonotary's Office docketed your Motion for Postconviction Relief. In same, you attack a sentence imposed for your violation of probation occurring in 2006. The Defendant, after having been found guilty of the violation of probation, was sentenced to a period of three years under the provisions of 4204(k) with credit for the 17 day previously served.
You allege that your attorney was ineffective. You allege that your attorney presented no mitigating mental health factors, nor requested an evaluation or presentence investigation for exploring appropriate sentencing issues. You state "Some people suffer under mental and physical illnesses involuntarily causing their
conduct . . . they will respond to specialized treatment". You allege he was ineffective for not presenting mental health issues and other mitigating factors which the Court would have considered and then tailored a sentence to either less incarceration or no incarceration.
In Ground Two, you allege that the Court abused its discretion because the sentence was imposed without the benefit of a presentence investigation, and without the benefit of an investigation into the character and life of the Defendant. You allege that had the Court possessed reports concerning more information about you, the Court would have been more lenient with you.
Finally in Ground Three, you allege that the Court made an error of law when the Court relied upon constitutionally invalid information in determining your sentence. You note that when you were not prepared to make an admission concerning the charge of possessing a switchblade knife, the Courthouse security officer who seized same then took the stand and testified that when you came through the metal detector, an object was noted; and upon search, it was determined to be a switchblade knife.
You also complain that the Court's determination that you were a dangerous person is unsubstantiated in the record.
I will apply no procedural bars because one ground involves ineffective assistance of counsel, and this is your first opportunity for raising same and the other grounds you allege were not raised because your attorney did not take the requested appeal. For the purposes of addressing your Motion, I will assume that to be the case.
Your case history is interesting in that your subsequent filings and subsequent actions (i.e., after June 16, 2006) contradict the position that you are now arguing. You admitted that you were in violation of probation by missing appointments and violating your curfew. You allege that the report of your police contact was made but not within the required time pursuant to the rules of probation.
At the hearing, you denied having a switchblade knife in your possession when you entered the Courthouse on April 4, 2006. The Court took sworn testimony and your attorney had the opportunity to cross-examine the security officer. Based upon your admissions and based upon the testimony concerning the switchblade, I found you in violation of probation. I then heard from you directly as to sentencing. I did consider the allegations concerning your newest charges and my sentencing decision. The Court is permitted on a violation of probation to consider the "entire package". Also, in this Court, you had several felony convictions.
When one complains that their attorney is ineffective, they must establish not only that the attorney committed error, but also that the attorney's errors caused the Defendant prejudice. Strickland v. Washington, 466 U.S. 668 (1984). If you cannot establish both prongs, then that is the end of the matter. You cannot establish prejudice because you have not shown that had your attorney made a better argument, or asked for additional information or more time to provide the Court additional information, the result would have changed.
You are correct that the Court was concerned about your dangerousness and thus community safety. Being a convicted felon and carrying a deadly weapon is a serious matter.
Subsequently, on July 19, 2006, two months after being found in violation of probation, you pled guilty to reckless endangering in the first degree, and possession of deadly weapon by a person prohibited. There was an habitual offender motion, and you were found to be habitual-offender eligible. The sentence imposed on July 19, 2006 was founded in the plea-negotiated recommended sentence, which the Court found to be reasonable. You only received six months as an habitual offender which was pursuant to the negotiations and the habitual offender motion was only applied to the weapons offense. You received a suspended sentence on the balance. One of the reasons I found this sentence to be appropriate and reasonable was the sentence you received two months earlier on the violation of probation.
On June 14, 2007, you wrote to me and acknowledged that you were arrested due to a highspeed chase from Maryland to Delaware, endangering several lives and making bad decisions.
Therefore, based on the above, any delay in the sentencing to get a presentence investigation would not have helped you. You have not shown that any failures on the part of your attorney in any way prejudiced you.
Addressing the balance of your Rule 61 Motion, and taking into consideration specifically your subsequent guilty plea and your correspondence to the Court acknowledging your risky and dangerous behavior, I find that you have not established that the imposition of the sentence without additional information about you was a violation of your rights or in any way prejudiced you.
You are a dangerous person who needs to address a lifestyle that has resulted in your incarceration.
Defendant's Motion for Postconviction Relief is denied.
Defendant's Motion for Modification of Sentence as outlined in the correspondence received on June 14, 2007 is denied for the same reasons aforestated.
IT IS SO ORDERED.