Opinion
No. 207, 2003
Submitted: September 9, 2003
Decided: October 7, 2003
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. ID. No. 0103020811 Cr. A. No. PN01-04-0861R1
Before HOLLAND, BERGER and STEELE, Justices.
ORDER
This 7th day of October 2003 upon consideration of the parties' briefs, it appears to this Court that:
1. In June 2001, a New Castle County Grand Jury indicted Clifford Henry on a single felony count of Theft by False Pretense. Henry had received money from Joseph Madison for the purchase and resale of property. Henry signed a mortgage to secure payment to Madison but never recorded it. Henry resold the property for a profit but Madison did not receive any of the proceeds as promised nor was he repaid the loan amount.
2. On the morning of his trial, Henry entered into a plea agreement whereby he agreed to plead nolo contendere to the lesser-included offense of misdemeanor Theft by False Pretense, and the State agreed to recommend probation. The agreement also called for a restitution hearing. The court accepted the plea and sentenced Henry to probation for one year. The court later ordered Henry to pay $142,000.00 in restitution. Henry did not appeal the restitution order.
3. On October 16, 2002, the State Banking Commissioner issued a Notice of Temporary License Suspension to Henry indicating that his Mortgage Loan Broker License would be revoked as a result of being adjudged guilty of Theft by False Pretense.
4. Henry filed a postconviction motion to withdraw his nolo contendere plea based on a claim of ineffective assistance of counsel. The trial court denied Henry's motion after finding that his trial counsel's failure to inform him of the possible revocation of his Mortgage Loan Broker License did not fall below an objective standard of reasonable conduct because it was a collateral consequence of his nolo contendere plea. Henry appealed.
5. A successful claim of ineffective assistance of counsel requires a showing that the trial counsel's conduct fell below reasonable professional standards and that the conduct caused actual prejudice. Henry argues that the trial judge abused his discretion by denying the application for postconviction relief.
Strickland v. Washington, 466 U.S. 668 (1984).
Specifically, Henry contends that his trial counsel acted unreasonably by failing to inform him of his legal rights when he entered the plea. He further claims that his lack of knowledge of his rights affected the validity of the plea and ultimately caused him actual prejudice when the Commissioner revoked his professional license.
6. Henry has failed to establish a claim of ineffective assistance of counsel. First, although Henry did testify that his trial counsel said that the plea should not affect his Mortgage Loan Broker License, Henry could not deny that his trial counsel may have advised him that a nolo contendere plea would result in a finding of guilt. It is clear, as noted below, that he was present when the trial judge entered a finding of guilt. Second, Henry suffered no actual prejudice because the trial court correctly classified the possible revocation of his Mortgage Loan Broker License as a collateral consequence. A collateral consequence "is one that is not related to the length or nature of the sentence imposed on the basis of the plea."
Barkley v. State, 724 A.2d at 560 (Del. 1999) (quoting United States v. Romero-Vilca, 3d Cir., 850 F.2d 177, 179 (1988)).
When denying the postconviction motion, the trial judge properly held that trial counsel's failure to inform Henry of this collateral consequence of his plea did not constitute ineffective assistance of counsel.
7. Henry claims that his trial counsel failed to inform him of the nature of, and therefore, the consequences of the plea. However, competent evidence in the record demonstrates that Henry was fully aware of the effect of a nolo contendere plea. First, the following exchange occurred at the end of the plea colloquy:
THE COURT: Okay. It's your desire to enter the no contest plea at this time?
THE DEFENDANT: Yes, your Honor.
THE COURT: Court finds that the plea is knowingly, intelligently and voluntarily made. I direct that a finding of guilt be entered.
Appendix at A-10
Henry made no objection at that time. Second, before confirming in open court that he wished to plead "no contest," Henry had signed both the Plea Agreement and the Truth-In-Sentencing Form that indicated he would be adjudged guilty of a misdemeanor. Although the heading of the Truth-In-Sentencing Guilty Plea Form was changed to read "Truth-In-Sentencing Nolo Contendere Plea Form," the rest of the document remained unaltered. In order to support his claim that he did not understand the nature of his plea in July 2002, he stated that he had never discussed the meaning of a nolo contendere plea with anyone in the criminal justice system. However, the record reflects that in May 2001, Henry pleaded nolo contendere to three violations before a Justice of the Peace in Court 20.
8. There is no merit to Henry's claim that his entry of a nolo contendere plea resulted from ineffective assistance of counsel and that he suffered actual prejudice as a consequence. Accordingly, the trial judge did not err as a matter of law by denying Henry's application for postconviction relief.
Although Henry alleges an abuse of discretion by the trial judge in denying postconviction relief, see infra para. 5, the proper standard of review is for an error of law.
NOW, THEREFORE, IT IS ORDERED, that the judgment of the Superior Court is AFFIRMED.