Opinion
Defendant ID No. 0001000052.
April 24, 2003.
Motion for Postconviction Relief
Edward C. Gill, Esquire
Adam D. Gelof, Esquire
Dear Mr. Gill and Mr. Gelof:
This is the Court's decision on the Defendant's pending Motion for Postconviction Relief filed by Mr. Gill.
The following background is taken from my review of the file. In early January 2000, Mr. Parker was arrested for a series of offenses ranging from trafficking in cocaine to driving while under the influence. He engaged the services of Andre M. Beauregard, Esquire. Discovery took place and a Motion to Suppress was filed by Mr. Beauregard. Eventually the case was given a case review date in early April and a trial date in May. He also had a pending violation of probation which was scheduled for April 7. The State made a plea offer which would expire in the first week of April if not accepted. That plea offer included 15 years minimum mandatory for a charge of possession with the intent to deliver cocaine. The 15-year minimum mandatory was based upon Mr. Parker's prior record. The State warned that they believed they had the basis to pursue a life imprisonment under the habitual offenders statute. The cocaine seized weighed in at 11 grams.
On April 7, 2000, Mr. Parker accepted the State's offer and he pled guilty to possession with the intent to deliver cocaine carrying a 15 year minimum mandatory, driving under the influence and resisting arrest. Additionally the State in its negotiations would not seek a Level 5 time on the two violations of probation to the 1990 and 1994 cases.
The case was negotiated under then Rule 11(e)(1)(C). Not included in the negotiated sentence was a provision concerning Key. I included in the sentencing order that Key should be completed while at Level 5. I informed Mr. Parker when I included Key and Crest as a portion of the sentencing order, that if there was any complaint the defense was to inform the Court by having him communicate with his lawyer within seven (7) days. While there have been many Motions for Modification over the past three years, the issue of exceeding the bounds of the Rule 11(e)(1)(C) has not heretofore arisen. The Defendant received the 15 year minimum mandatory sentence followed by lengthy probation.
GROUNDS ALLEGED IN PRESENT MOTION
The Defendant alleges that he was coerced into pleading guilty because his defense attorney interjected race into the plea negotiation process. Specifically, he alleges that his defense attorney told him that "he is black, the Judge is white, the Prosecutor is white, and the jury is white. As a result of that, he was probably going to lose the case."
The second ground alleged is that the court exceeded the Rule 11(e)(1)(C) plea agreement by including the Key program in the sentence.
PROCEDURAL BARS
Ground 1 concerning the coerced plea is not procedurally barred. This is the defendant's first Rule 61 application and this claim attacks the voluntariness of the plea.
The second ground, concerning the Court exceeding the Rule 11(e)(1)(C) plea agreement is procedurally barred. The Defendant was given an opportunity to revisit the sentence if he had a complaint concerning it. He didn't. The Defendant could have appealed the Court's inclusion of the Key program as being beyond the Rule 11(e)(1)(C). He didn't. Therefore, it is barred under Rule 61(i)(3) as the Defendant has shown no cause for relief from his procedural default in not raising this matter to the Superior Court, nor appealing it; nor has he shown any prejudice from a violation of his rights. Again, I note that the sentence was thirty-five months old before the Defendant raised the issue that the Court exceeded the Rule 11(e)(1)(C). I also note that the Court was clear in including the Key- Crest programs.
MERITS AS TO GROUND ONE
The Court expanded the record under Rule 61(g) and I have received affidavits from both Defendant and his attorney. Mr. Beauregard's affidavit response as to Ground One is as follows:
"Concerning the allegations of Mr. Parker, there was no racist comment in the plea negotiation. In speaking to Mr. Parker, I reviewed the evidence against him, the prosecutor involved and the likelihood of conviction. Also, because of his pending VOP's and his prior criminal drug record, "rolling the dice" would have been a higher risk than a first time offender. After reviewing the facts and his record, ad nausea with Mr. Parker, a comment was made as to the practical affects [sic] of Mr. Parker going to trial. I informed Mr. Parker that it has been my experience that a Defendant and drugs charges would more likely than not be found guilty in front of a Sussex County jury.
The discussion as to the likelihood of a not guilty verdict was based solely on the specific facts of the matter and not the racial background of the defendant."
Mr. Parker's response in his affidavit is as follows:
"That the Affidavit set forth by Mr. Beauregard is incorrect. He specifically informed me that due to the fact that I was black, the Judge and Prosecutor being white, and the jury panel possibly being all white. I would lose going to trial here in Sussex County, especially with drugs being involved."
In making the determination as to whether or not the Defendant's plea was involuntary, I also note that the Defendant corresponded with this Court on numerous occasions. He submitted memoranda. He has written to the Governor and Attorney General. In all of his communications, I can find no mention that he was coerced into pleading guilty or that his plea was involuntary, much less any allegation that race was interjected into his decision whether or not to accept the plea. He complained that 15 yeas was too long a sentence.
I have also reviewed the transcript of the colloquy between the Court and the Defendant. Below are portions of the transcript which touch upon the issue of whether or not the Defendant entered into a knowing, voluntary and intelligent plea.
THE COURT: These are very serious matters that are here, with a lot of jail time.
THE DEFENDANT: Yes.
THE COURT: You have thought about it?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Have you had enough time to meet and discuss with your attorney what you are doing today?
THE DEFENDANT: Yes.
THE COURT: Have you discussed the possibility of going to trial and what the defenses may be and alternatives to what you are doing here today?
THE DEFENDANT: Yes.
THE COURT: This is your personal decision as to how you want to resolve this?
THE DEFENDANT: Yes.
THE COURT: Do you have any complaints at all concerning your attorney?
THE DEFENDANT: No.
THE COURT: Is Mr. Beauregard or anybody else forcing you to do this?
THE DEFENDANT: No.
THE COURT: Mr. Parker, I ask these questions and I want you to be mindful why I ask the questions. I will bet the ranch and I will bet my life savings that you will write to me and you will ask for modifications and you will complain about the process, and you may very well make complaints about your attorney because you will want to get out of jail, and, therefore, you will point the finger at anybody and everybody in order to get out of jail.
I tell you right now, speak now or forever hold your peace. Is this your personal decision to enter the guilty plea today?
THE DEFENDANT: Yes.
After reviewing all of the Defendant's rights and his admissions of guilt, the plea colloquy ended with the following:
THE COURT: Again, I ask you, Mr. Parker, do you have any questions?
THE DEFENDANT: No.
THE COURT: This is the end of the line.
THE DEFENDANT: Yes.
Based upon the affidavits submitted, the sworn statements of the Defendant while under oath at the plea colloquy, and the Court's review of the Superior Court file, I am satisfied that race was not injected into the plea negotiations causing the Defendant to involuntarily enter into a guilty plea.
I remain satisfied that the plea was intelligently, voluntarily and knowingly entered and therefore, the Defendant's Motion for Postconviction Relief is denied.
SO ORDERED.