Opinion
November 9, 2005
Christopher J. Davis, Sussex Correctional Institution, Georgetown, DE.
Dear Mr. Davis:
On September 2, 2005, this Court received your Motion for Postconviction Relief attacking guilty pleas entered on July 7, 2005.
The Court expanded the record pursuant to Rule 61(g) and obtained an affidavit from your attorney, as well as an affidavit from you.
The Court has reviewed the transcript of your July 7th guilty plea. This transcript also contains your violation of probation hearing. You will recall that this was a fast track hearing on the violation of probation, which was followed by the guilty plea on the new charges. The Court has also reviewed the transcript of your initial fast track presentation on July 5, 2005.
HISTORY
As of July 5, 2005, you were on probation to this Court under Case No. 0204010568. You obtained new charges under Case No. 0505010323. These matters were placed on the Drug Court Fast Track calendar and scheduled for July 5, 2005. The matters scheduled were the violation of probation and a determination as to whether the new charges might also be resolved.
On July 5th you were in the courtroom with Mr. Brady and denied the violation of probation. There was some discussion by you concerning a guilty plea in CCP to recent Title 21 offenses. Other matters concerning the new charges were denied and therefore a contested violation of probation hearing was scheduled for July 7th.
On July 7th, 2005, several police officers testified. In your case, the most critical was the officer who testified concerning your 4th driving under the influence arrest as well as the bizarre behavior following your arrest. I found that you were in violation of probation.
Prior to sentencing as to the violation of probation, I advised you that I was considering Boot Camp or CREST. I also advised that I would give you more time to discuss the initial plea package in light of the fact that you had just been found in violation of probation. I made it clear that I was not trying to force or coerce anything as to the package deal but thought that you may want to attempt to resolve the new charges.
The Court then took up other matters. Later, with the assistance of your attorney, you entered a guilty plea to driving under the influence of alcohol, reckless burning, offensive touching and terroristic threatening. I have reviewed the plea colloquy. You advised that you were not being forced or threatened to enter into the plea and that it was your personal decision to plead guilty to these charges. I made you aware that the evidence concerning those charges had just been presented to the Court by way of the violation of probation. You advised me that you felt that it was "probably best" to resolve all the matters by entering the plea.
You were made aware that the possible sentence on these charges exceeded seven years, and you were aware that the Court would consider the recommendation being made by the parties, but that the Court was not bound by that recommendation. Your trial rights were explained to you and you advised that you understood those rights and waived them. I then sentenced you to Level 5 incarceration which was to be suspended upon successful completion of the Key/CREST program. This was the recommended sentence you and the State had agreed upon. The first six months of the DUI 4th offense was a minimum mandatory sentence. I gave you 54 days credit for the time that you had been incarcerated and applied that to the violation of probation charges and then discharged those charges as unimproved.
YOUR COMPLAINTS
You alleged that Mr. Brady misinformed you as to the length of the Key program, and that you would get credit time while you were in jail which would be applied to the Key program. You report that he told you that you could do the Key program in six months and with the credit time, you would only be looking at four months in the Key program. You complain that you did not know we were going to be conducting a violation of probation hearing on July 7, 2005, but thought that you were going to be in Court for a jury trial. You wish to withdraw your guilty plea based upon the false information provided to you by your attorney.
Finally, you complain that your attorney discussed this plea with your mother and the subsequent communications led you to believe that she thought you should accept the plea. You allege that you had told him not to talk with her. This complaint does not attack the plea but is a confidentiality issue, and therefore it shall not be considered.
DISCUSSION
Your Motion for Postconviction Relief is denied. Despite your claims, the record reflects that you fully knew that on July 5th, a contested violation of probation hearing was to be scheduled. You knew that you were not coming back two days later for a jury trial. I find that your recollection of the events of July 2005 is not as credible as that of your attorney. He reports that he told you the Key program was at least six to twelve months in length, and that the faster you complied with what Key was offering, the faster you would get through the program. You may have hoped to get through the program in as soon as six months, i.e., the minimum mandatory sentence, but I stated at sentencing that you could not get through the Key program in six months.
The Key program is a variable length program depending on the individual person's progress. Depending upon the program director and the number of people in the Key program, it has been as short as six months. It has also been much longer. When you took the plea, you were aware that you faced up to seven years. Knowing that, and knowing it was in the Judge's discretion as to whether you got up to seven years, you can not now complain that the only reason you entered the plea of guilty was based upon a representation that the Key program was six months in length. I am satisfied from the plea colloquy that you were fully informed of the consequences of the plea and made a meaningful intelligent decision. You had just heard the State's evidence against you concerning the new charges which came by way of the violation of the probation hearing. That evidence was substantial and strong. After hearing that evidence, you chose to resolve the new charges.
I do not find that your attorney misinformed you or failed to inform you of the violation of probation hearing on July 7, 2005 as the record clearly establishes that you were informed of same two days earlier.
In summary, I am satisfied that despite your allegations, you made a personal decision to enter the guilty plea knowing it was up to the judge as to what the sentence might be. I find you did so knowingly, voluntarily and intelligently, and that you were not misled into pleading guilty.
Your Motion for Postconviction Relief is denied.
IT IS SO ORDERED.