Opinion
No. 146, 1998.
February 3, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. A. Nos. IN96-04-0654R1 and IN96-04-0656R1 ID # 9602016493.
AFFIRMED.
Unpublished Opinion is below.
CORY HITCHENS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 146, 1998. In the Supreme Court of the State of Delaware. Submitted: December 8, 1998. Decided: February 3, 1999.
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. A. Nos. IN96-04-0654R1 and IN96-04-0656R1 ID # 9602016493.
Before VEASEY, Chief Justice, HARTNETT, and BERGER, Justices.
ORDER
This 3rd day of February 1999, upon consideration of the briefs of the parties, it appears to the Court that:
(1) Cory Hitchens appeals to this Court on the ground that the Superior Court erred when it denied his motion for post-conviction relief. Specifically, Hitchens argues that the Superior Court erred when it found that Hitchens' grounds of prosecutorial misconduct and judicial abuse of discretion were procedurally barred, and his claim of ineffective assistance of counsel lacked merit. We disagree and affirm.
(2) Hitchens, while serving a sentence for delivery of cocaine, escaped from Level IV supervision. During that time, police rearrested Hitchens for burglary. The State charged him with escape after conviction, burglary in the second degree, misdemeanor theft, and criminal mischief. In return for a nolle prosse on the charges of burglary and criminal mischief, on September 10, 1996, Hitchens pleaded guilty to escape after conviction and misdemeanor theft. Hitchens also agreed that he was eligible to be sentenced as an habitual offender pursuant to 11 Del. C. § 4214.
At the time that Hitchens signed the guilty plea, he indicated that he did so freely and voluntarily, that he was not under the influence of drugs or alcohol, and he understood the rights that he was waiving.
(3) At the time that he pleaded guilty, Hitchens complained that he had not received proper drug treatment while incarcerated and, therefore, he was predisposed to commit further crimes. As a result, the Superior Court postponed sentencing and ordered a presentence report. On November 8, 1996, the Superior Court sentenced Hitchens to six years imprisonment followed by two years probation and declared Hitchens an habitual offender. Hitchens did not appeal his sentence or convictions.
(4) On January 9, 1997, Hitchens filed a motion for modification of sentence on the previously asserted ground that he did not receive proper drug treatment while incarcerated. On January 13, 1997, the Superior Court denied this motion. On October 16, 1997, Hitchens filed a motion for post-conviction relief on the same ground that he asserted in his motion for modification. On December 10, 1997, the Superior Court denied this motion. On December 23, 1997, Hitchens moved for reconsideration and reargument of the denial of his motion for post-conviction relief. On March 5, 1998, the Superior Court denied this motion and found that Hitchens' claims of prosecutorial misconduct and judicial abuse of discretion were procedurally barred, and his claim of ineffective assistance of counsel lacked merit. This appeal followed.
Specifically, Hitchens argues that his counsel, the prosecutor, and the trial judge failed to consider that he was not receiving adequate drug treatment while incarcerated.
(5) The denial of a motion for post-conviction relief is reviewed for an abuse of discretion. Accordingly, the Superior Court's decision will be reversed only if it is based on unreasonable or capricious grounds.
Dawson v. State, Del. Supr., 673 A.2d 1186, 1190 (1996).
(6) The Superior Court ruled that Hitchens' claims of prosecutorial misconduct and judicial abuse of discretion were procedurally barred pursuant to Rule 61(i)(3). That rule provides, in pertinent part, "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of movant's rights." Hitchens did not overcome this bar since he failed to establish either cause for relief or prejudice. In fact, Hitchens never appealed his sentence or underlying convictions.
(7) The Superior Court ruled that Hitchens' claim of ineffective assistance of counsel lacked merit. Strickland v. Washington sets forth a two-prong test to establish a successful claim of ineffective assistance of counsel. First, the claimant must establish that counsel's representation fell below an objective standard of reasonableness. Second, the claimant must show that counsel's actions were prejudicial. The Superior Court suggested that, in order to establish the second prong, Hitchens would have to show that "but for counsel's unprofessional errors, the defendant would not have entered a guilty plea and would have insisted on going to trial." The Superior Court correctly concluded that since Hitchens knowingly and voluntarily entered into the plea agreement, he "cannot now allege that his lawyer was ineffective for not objecting to a finding of habitual offender status when he agreed that he was entitled to be sentenced as such." Accordingly, Hitchens did not establish that his counsel was ineffective.
466 U.S. 668, reh'g denied, 467 U.S. 1267 (1984).
State v. Hitchens, Cr.A. Nos. IN96-04-0654R1 IN96-0400656R1, Toliver, J. (ORDER).
Id.
NOW, THEREFORE, IT IS ORDERED that Hitchens' convictions and sentence be, and they hereby are,
AFFIRMED.
BY THE COURT:
/s/ E. NORMAN VEASEY, Chief Justice