Opinion
Cr. ID No. 0511001605.
Submitted: November 22, 2006.
Decided: December 7, 2006.
ORDER
This 7th day of December, 2006, upon consideration of the defendant's pro se motion for postconviction relief, it appears that:
1. Defendant has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED.
2. On March 6, 2006, defendant Harry W. Anderson pled guilty to one count of Assault 2nd in Superior Court and a PSI was ordered.
3. On March 16, 2006, the defendant pled guilty to, and was sentenced on, one count of aggressive driving, one count of disregarding a police officer's signal and one count of failure to properly use turn signal in the Court of Common Pleas. All three charges arose from the same series of events that led to the Assault 2nd charge.
4. On May 26, 2006, the defendant was sentenced on the charge of Assault 2nd to eight years at Level V incarceration with credit for 167 days previously served, suspended after one year for two years at supervision Level III, suspended after one year for one year at supervision Level II.
5. Defendant did not file a direct appeal of his Assault 2nd conviction.
6. Defendant did not file a direct appeal of the aggressive driving, disregarding a police officer's signal or failure to properly use turn signal convictions.
7. On June 19, 2006, this Court received a letter from the defendant requesting a modification of sentence. Defendant was seeking to do the remainder of his time, four and a half (4 1/2) months, at the Plummer Center because his remaining Level V time was not long enough to allow him to participate in any programs at the prison. Defendant requested to be held at Level III until space was available at the Plummer Center.
8. On June 27, 2006, this Court received a follow up letter again requesting the same modification of sentence.
9. On July 11, 2006, defendant's request for modification of sentence was denied with the notation that "[t]he sentence was well within the SENTAC guidelines."
10. On July 13, 2006, this Court received a third letter from the defendant requesting a slightly different modification of his sentence. In the letter dated July 9, 2006, the defendant requested to serve his remaining three and a half (3 1/2) months at Level III probation without going to Plummer Center at all because he heard that it takes more than three months for space to open up at the Plummer Center.
11. On July 28, 2006, defendant's request for modification of sentence was again denied because, pursuant to Superior Court Criminal Rule 35(b), the court will not consider repetitive requests for reduction or modification of sentence.
12. On August 24, 2006, defendant filed a pro se petition for a writ of habeas corpus alleging that he had not received credit for eighty-two (82) days of incarceration time from 1997 — 2005 that would change his max out date from November 15, 2006 to August 25, 2006.
13. On August 28, 2006, this Court denied defendant's petition for a writ of habeas corpus with the notation that "[t]he defendant has received credit for all time served on this sentence."
14. On October 6, 2006, defendant filed this motion for post-conviction relief alleging three grounds on which his rights were violated. (1) double jeopardy, (2) ineffective assistance of counsel, and (3) illegal detention.
15. Defendant's claim of double jeopardy could have been raised on direct appeal. In order for defendant to raise the issue for the first time in his present petition for postconviction relief, he is required to show "cause" for relief from his failure to present the issues on direct appeal and "actual prejudice" resulting from the alleged error.
Flamer v. State, 585 A.2d 736, 747 (Del. 1990), see also, Superior Court Criminal Rule 61(i)(3) states: Procedural Default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this Court, is thereafter barred, unless the movant shows (A) cause for relief from the procedural default and (B) prejudice from violation of the movant's rights.
16. Defendant has made no attempt to show cause for his failure to raise the issue on appeal. Defendant also failed to demonstrate, or even argue in his motion, that if the issue had been raised on appeal, the outcome would have been different. Defendant is procedurally barred from asserting his double jeopardy claim under Rule 61(i)(3).
17. To prevail on a postconviction relief claim based on ineffective assistance of counsel, defendant is required to meet both prongs of the test set forth in Strickland v. Washington. That is, a movant must show both "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Strickland v. Washington, 466 U.S. 668.
Id. at 694.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Flamer, 585 A.2d at 753.
18. Applying those standards here, this Court cannot now say that defendant's counsel was ineffective. The defendant makes vague allegations that counsel was unprepared and failed to respond to correspondence. As indicated by the affidavit submitted by defendant's counsel, Mr. DelCollo only received one letter from the defendant, and met with him in person prior to each court appearance. Furthermore, Mr. DelCollo prepared two bail reduction motions prior to sentencing. The State agreed to ask for one year in jail, a sentence below the presumptive sentence guideline. At sentencing, the judge commented that, if not for the State's lenient recommendation, he was going to impose a sentence of over two years as a result of the type of crime and Mr. Anderson's criminal history.
19. The defendant has failed to demonstrate that Mr. DelCollo's performance fell below an objective standard of reasonableness. Given this conclusion, the Court need not consider any prejudice to the defendant.
Strickland, 466 U.S. at 697 (stating that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
20. The defendant's final postconviction claim of "illegal detention" is also procedurally barred. Superior Court Criminal Rule 61 (i)(4) provides that "any 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 reconsideration of the claim is warranted in the interests of justice."
21. Defendant has already challenged the legality of his detention through his previous petition for a writ of habeas corpus. That petition was denied, and this Court found that defendant had received credit for all the time served on this sentence. The defendant has failed to demonstrate how the interests of justice warrant reconsideration of this claim.
22. Superior Court Criminal Rule 61 (d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal. . . ." Applying that precept here, the Court finds that defendant's claims do not entitle him to relief.
WHEREFORE, defendant's motion for post-conviction relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.