Opinion
ID No. 0709009693.
October 7, 2009.
Bernard J. O'Donnell, Office of the Public Defender, Wilmington, DE.
John W. Donahue, IV, Esquire, Department of Justice, Georgetown, DE.
Dear Counsel:
This is the Court's decision as to the pending Motion for Postconviction Relief. It is denied.
BACKGROUND — PROCEDURAL
On April 9, 2009, Tyke Evans ("Defendant") filed this motion pro se. His claims were based upon ineffective assistance of his attorney, Daniel F. Tyrrell, Jr., who was disbarred by consent on September 10, 2008, for conversion of estate funds.
The Public Defender's office was appointed to represent Mr. Evans. Evidentiary hearings took place on July 23, 2009, and August 4, 2009. Briefing ended on September 11, 2009.
PROCEDURAL BARS
There are no Rule 61(i) procedural bars; and, therefore, the Court has addressed the merits of the Motion.
GROUNDS ALLEGED
(1) Counsel was ineffective for failing to adequately prepare for trial, failing to conduct forensic testing on the drugs, failing to obtain a forensic expert, and failing to get a fingerprint expert.(2) Counsel was ineffective for failing to file a motion to suppress "the quality and quantity" of the drugs seized, as well as the post-arrest interrogation of the Defendant.
(3) "Conflict of Interest". This ground alleges his attorney was not prepared for trial, and informed the Defendant "Even God can't help me win this trial". Defendant claims that his attorney had initially been very optimistic about getting the charges dismissed. Defendant alleges he was left with no choice but to plead guilty because of his lawyer's position and the Court's refusal to grant a continuance so Defendant could get another attorney.
(4) His attorney told him he would get two (2) years followed by probation, but he got more.
After the evidentiary hearings, the Defendant also complained that his guilty plea form was inaccurate and that the State violated Santobello v. New York, 404 U. S. 257 (1971) by making sentencing remarks contrary to the plea agreement.
FINDINGS OF FACT
On September 7, 2007, the Governor's Task Force was working curfew checks in the Ellendale area. A Delaware State Police Officer observed a green Lincoln which was known to be operated by Bryan Evans in the Ellendale area. Bryan Evans was wanted on two capiases, and also it was known that he had a suspended driver's license. Bryan Evans is the Defendant's brother.
When a black male was seen operating that vehicle, the police, in an unmarked car, followed the vehicle. Other members of the Governor's Task Force were operating two vehicles coming in the opposite direction, one of which was marked. When they passed the green Lincoln and the undercover officer, the officers in the marked vehicle performed a U-turn in the road to travel in the same direction as the green Lincoln.
The operator of the green Lincoln observed this and abruptly turned into the opposite lane of traffic and drove diagonally across the road on to the opposite shoulder, but pointing westbound. No signals were used. The Delaware State Police Officer in the unmarked car then pulled up behind the green Lincoln and identified himself as a Delaware State Police Officer. He was wearing a blue vest with Delaware State Police on it.
By that time, the driver of the vehicle had opened his door and immediately bolted. The undercover officer, Detective Larry Smith, chased that person around several houses for a distance, "as the crow flies", of 137 yards. He only lost sight of the person very briefly as the person went around the corner of a house. He heard breaking glass, and seized the individual at the back door of a house. The glass of the door was broken. That person resisted arrest, and they ended up going to the ground, causing physical injury and cuts to both the police officer and the person seized.
It was not Bryan Evans who was seized, but his brother Tyke Evans. When the police officer retraced his path, he found cocaine and marijuana approximately 15 to 20 feet from where the Defendant was seized, and in the area where he had lost sight of the Defendant. The drugs were seized in the direct path that the Defendant had run, and there were no other civilians in the area at all.
The Defendant was Mirandized and voluntarily gave an inculpatory statement. He admitted that he saw the marked police car make the U-turn, and he decided to run from the police.
Miranda v. Arizona, 384 U.S. 436 (1966).
He drove across the road and thought he could outrun the officer. He zigged and zagged until he got to the house where he was caught. He tried to enter, but broke the glass. He and the officer went to the ground and both got cut on the broken glass. He admitted the drugs the officer found on the ground were his and that cocaine was in the car. He admitted selling drugs, but only for weekend spending money.
Following his arrest, the Defendant was incarcerated. A short time later, he made bail and a friend introduced him to Mr. Tyrrell. After talking with Mr. Tyrrell, the Defendant testified Mr. Tyrrell told the Defendant it was an open-and-shut case and he could get the charges dismissed.
What is important is that the Defendant was not candid with his attorney as to the events surrounding his arrest. He did tell him the police were looking for his brother, but he did not tell Mr. Tyrrell that he saw the police and tried to run before they did anything to stop him. He did not tell him about dropping the drugs or about the drugs in the car. He told his attorney he laid down when the police started coming toward him and that the officer jumped on him, thereby cutting his hand. He did not tell his attorney he had admitted the drugs were his and that he was selling drugs.
Basically, the Defendant gave his attorney an exculpatory cock-and-bull version of the events leading to the stop, chase, and arrest.
Based upon what the Defendant told Mr. Tyrrell, it is not surprising that his attorney gave the Defendant an optimistic opinion as to the potential for getting the charges dismissed.
Later, the Defendant met with Mr. Tyrrell concerning arraignment. The case was discussed as well as the arraignment process and a Rule10-C form (not guilty plea) was filed.
At the first case review in January, the State made a plea offer. It was dated January 17, 2008. The offer was to plead guilty to possession with intent to deliver cocaine and resisting arrest with force. The State would make an immediate sentencing recommendation of three (3) years minimum mandatory, followed by probation. The Defendant's prior convictions triggered the enhanced mandatory sentence.
What took place, per the Defendant, is very interesting. The Defendant testified he wanted to take the plea, get sentenced and start doing his time. His attorney told him to hold off because he did not have the discovery and he needed more information. Mr. Tyrrell was correct in advising his client to hold off. An attorney cannot give advice without getting the State's discovery. Also, Mr. Tyrrell was operating on the information provided by his client, the Defendant, and that information was false. Finally, I note that frequently plea offers involving jail time get better as the case ages.
The next event occurred on April 9, 2008, which was the final case review prior to the trial scheduled for April 15, 2008. By now, Mr. Tyrrell had the discovery which included the police reports and the Defendant's videotaped confession. Obviously, circumstances had changed, impacting the advice Mr. Tyrrell gave his client. Mr. Tyrrell encouraged a plea instead of a trial, but the Defendant was now reluctant to take a plea. The January 17, 2008, plea offer remained the only plea offer on the table. The Defendant wanted Mr. Tyrrell to suppress the taped confession because of the Defendant's intoxication.
On Friday, i.e., two days after the final case review, the Defendant, his attorney, and the prosecutor met again in informal discussions to resolve the case with plea negotiations. Mr. Tyrrell was seeking something different and he got it. He was offered two (2) years mandatory under 11 Del. C. § 4204(k), plus boot camp diversion. So negotiations moved from three (3) years to two (2) years six (6) months, but if his client violated boot camp diversion, he had to serve the full three (3) years on the drug charge, i.e., he had two (2) years under 4204(k), plus six (6) months boot camp; and if Mr. Evans subsequently violated boot camp probation, he had to do the three (3) years that was diverted, for a potential five (5) years six (6) months.
Mr. Tyrrell did not like this offer. He told him the good points and the bad points of it, but Mr. Tyrrell thought the downside risk was too much. Nothing came of these discussions.
At some unknown point in time, the Defendant had talked to James Nutter, Esquire. Mr. Nutter told him that he could not represent him if he was represented by another lawyer, i.e., if he discharged Mr. Tyrrell, then he could represent him. The Defendant did not inform the Court that he wanted to fire Mr. Tyrrell until the morning of trial, during the plea colloquy.
Either on that Friday, or Tuesday, April 15, 2008, the trial date, Mr. Tyrrell told the Defendant that even God could not help him at this trial. In summary, Mr. Tyrrell went from being very enthusiastic that they had a good case to Mr. Tyrrell being very pessimistic.
On Tuesday, April 15, 2008, the morning of trial, the jury panel had been summoned. The Court was informed that the Defendant wished to enter a guilty plea. All parties and the Defendant were aware that the Court in Sussex County does not entertain plea negotiations and immediate sentencing recommendations on the morning of trial when the jurors are present in the Courthouse.
The Defendant decided to take the plea offer to the possession with intent to deliver cocaine and resisting arrest with force, but the Defendant lost the immediate sentence recommendation. A presentence investigation was ordered and the Defendant was sentenced in June. He received a sentence of nine (9) years at Level 5, followed by probation, assuming he completed the Greentree program.
The analysis of the present motion and the plea colloquy is made with the knowledge that the Defendant is a street-wise criminal who faced his jury trial on April 15, 2008. Mr. Evans was a 27-year old man who had been in trouble since his commitment as a juvenile to Ferris for crimes of violence. His adult felony convictions include assault in the second degree, for which he received several years of Level 5 incarceration, and a drug delivery offense for which he spent a year in jail. He had numerous violations of probation as to these sentences.
The plea colloquy was lengthy and thorough. Everything was explained to Mr. Evans, sometimes twice.
I explained that normally negotiated pleas are not accepted on the morning of trial. I explained there would be a presentence investigation and at sentencing, he would be able to talk to the Judge, as would his attorney, as well as the prosecutor. When I went through his trial rights and asked if he understood them, he stated "Now I do, yes. I didn't know some of that stuff." I, therefore, went through his trial rights a second time.
We discussed his dissatisfaction with his lawyer for not filing a suppression motion because his lawyer did not think it would be granted.
With all of these discussions and a lot of them back and forth between the Defendant and the Court, the Defendant understood he could pick a jury and go to trial, but he decided to plead guilty. A reading of the entire transcript is necessary to get the flavor of what was taking place as to the Defendant's decision.
When the plea was entered and his bond was revoked, Defendant changed his mind about the plea and wanted to go to trial. He was upset that bond had to be revoked because he was facing a minimum mandatory sentence. I vacated the plea. Then his girlfriend or a relative yelled to him "Take the plea". The Defendant was given the opportunity to discuss the plea with his friends and/or family and then informed the court he wished to enter the plea. The plea was accepted and sentencing was set for June 13, 2008.
At the evidentiary hearing, the Defendant presented his guilty plea form and asked that the Court compare the triplicate copy to the original. The Court's copy indicated the Defendant was pleading guilty to possession with intent to deliver cocaine and resisting arrest, but the Defendant's triplicate copy indicated he was pleading to only the drug charge. The Defendant argued his lawyer tricked him by filling in the resisting arrest with a two-year penalty after they had reviewed the document and he knew nothing about pleading guilty to resisting arrest, i.e., he was surprised into silence when he heard it mentioned in the plea colloquy.
It is not fatal that the original and triplicate copy do not match. I find that whatever omission occurred was a paperwork correction which tracked the plea that Mr. Evans knew he was entering into.
My finding that Mr. Evans explicitly knew he was pleading guilty to resisting arrest is based on the following:
(1) At page 4 of the plea transcript, I informed Mr. Evans he faced a three (3) year mandatory sentence and up to twenty (20) years on the drug offense and up to two (2) years on the resisting arrest. He acknowledged same.
(2) At page 7 of the plea transcript, the Defendant was asked if he was guilty of resisting arrest with force and he replied. "Yes, sir". Based on his present allegations, one would have expected him to complain or ask "what's going on?", but he did not.
(3) Again, at page 12 of the plea transcript, the penalty of three (3) years mandatory up to twenty-two (22) years was discussed.
(4) The Plea Agreement signed by the prosecutor and first offered on January 17, 2008, is signed by the Defendant and his lawyer. It clearly sets forth both the drug offense and the resisting arrest.
(5) The Defendant made no complaint as to the resisting arrest before sentencing or at sentencing on June 13, 2008.
(6) The Defendant filed a pro se motion for modification and stated he received two (2) years as to the resisting arrest but he made no complaint about the guilty plea or adjudication of guilt as to resisting arrest.
(7) Finally, when the Defendant filed his pro se Rule 61 motion, he did not complain about the resisting arrest plea.
The reason the Defendant did not complain and the reason he acknowledged his guilt is because he knew that was "the deal" throughout the plea colloquy. The plea the Defendant eventually accepted contains the same charges as noted in his plea agreement which was first offered to him back on January 17, 2008.
In summary, the Defendant knowingly, voluntarily and intelligently entered the guilty plea on April 15, 2008. The Defendant did so after understanding there would be no delays or procrastination. He could exercise his right to a jury trial or plead guilty. He chose to plead guilty, because as has been shown by the evidentiary hearing and his confession, he was guilty.
He was not coerced to plead guilty because his lawyer told him even God could not help him. That hyperbole was to convey the message that the police testimony and his confession would most likely result in a conviction. Mr. Tyrrell conveyed the bad news very clearly.
Mr. Evans was not coerced to plead guilty because his lawyer had failed to subpoena witnesses. Mr. Evans knew there were no witnesses to bring forth testimony as to his innocence. Mr. Evans has not established that there existed any witnesses that could have been helpful to the defense, and which Mr. Tyrrell decided not to subpoena. Likewise, Mr. Evans has not established that any expert defense witness would have assisted the defense.
As to whether his attorney was ineffective for not filing a motion to suppress the evidence seized and the Defendant's confession, the defense must establish that Mr. Tyrrell objectively committed an error or mistake that actually prejudiced Mr. Evans. Strickland v. Washington, 466 U.S. 668 (1984). In other words, if Mr. Tyrrell had filed the motion to suppress, it would have been successful.
Mr. Tyrrell basically told Mr. Evans he was not going to file a suppression motion that did not have a chance of being successful. Mr. Tyrrell was entitled to make his professional assessment as to the merits of any suppression motion. The assessment Mr. Tyrrell initially made was based on the Defendant's incorrect information as to the events of September 7, 2007. Mr. Tyrrell thought they had a winner, but when Mr. Tyrrell learned of the confession and the events leading up to the arrest, his assessment of the chances for success obviously went south.
The police did not do anything to seize Mr. Evans until after he shot across the road and ran from the police. Mr. Evans abandoned his drugs during the chase. What we do not have is whether there was articulable suspicion to stop the vehicle with a show of force, (i.e., police siren or lights), when the police thought the Defendant's brother was possibly the driver. The Defendant bolted prior to any seizure. When the Defendant bolted, the police clearly had articulable suspicion based upon his driving and subsequent flight.
In summary, had Mr. Tyrrell filed a motion to suppress, based upon a seizure lacking articulable suspicion or an arrest lacking probable cause, it would have been denied.
The confession was not the fruit of the poisonous tree. Nor does the video establish the Defendant's claim that the confession should be suppressed based upon the alternate claim of intoxication. The Defendant exhibited no signs of intoxication, and the Defendant had recently held his own in a lengthy chase.
Therefore, the Defendant cannot establish any prejudice in the decision to not file the suppression motion.
As to the Defendant's claim that Mr. Tyrrell told him he would get two (2) years, I note this is contrary to the document he signed, and the plea colloquy. After telling me he was going to tell me the truth, the Defendant acknowledged his sentence had to begin at three (3) years minimum mandatory up to twenty-two (22) years. The Defendant also stated he had not been promised what would happen at his sentencing. The Defendant has not provided evidence which overcomes what he reported to me during the colloquy. I do not find the existence of any promise by Mr. Tyrrell of a sentence of two (2) years. Somerville v. State, 703 A.2d 629 (Del. 1997)
Finally, in the briefing, the defense raises a Santobello claim for the first time. The defense argues that the prosecutor's comments at sentencing were contrary to the plea agreement, and therefore, he should be permitted to withdraw his guilty plea.
This ground is denied because the sentence recommendation that was in the initial plea offer made on January 17, 2008, and renewed several times by the State was rejected by the defense. The immediate sentence recommendation was never triggered because the Defendant pled guilty on the day of trial, fully understanding there would be no immediate sentencing and that following a presentence investigation, he, his lawyer, and the prosecutor would be given the opportunity to address the Court.
The prosecutor's remarks at sentencing were limited to a comment that the State did not see anything in the presentence investigation indicating the remorse the defense noted. The prosecutor also noted the Defendant's record which was in the presentence investigation. Finally, the prosecutor did not ask for any specific incarceration time.
I do not find a Santobello deal that was breached by the prosecutor.
For the aforestated reasons, the Motion for Postconviction Relief is denied.
IT IS SO ORDERED.