Opinion
No. 426, 2006.
Submitted: February 9, 2007.
Decided: March 28, 2007.
Court Below-Superior Court of the State of Delaware in and for New Castle County, Cr. ID Nos. 0204002388, 0403012959.
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices.
ORDER
This 28th day of March 2007, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Marcus Johnson, filed an appeal from the Superior Court's July 14, 2006 order denying his motion for postconviction relief. We find no merit to the appeal. Accordingly, we affirm.
(2) In August 2002, Johnson pleaded guilty to Trafficking in Cocaine. He was sentenced to four and a half years of Level V incarceration, to be suspended after three years for one and a half years of decreasing levels of probation. Johnson's sentence was deferred pending successful completion of the Boot Camp Diversion Program, at which time the balance of Johnson's sentence would be suspended for one and a half years of probation.
(3) Johnson successfully completed the boot camp portion of his sentence and was released on probation. While on probation, however, Johnson was arrested on several criminal charges, including Trafficking in Cocaine and Possession With Intent to Distribute Cocaine. In September 2004, Johnson was found to have committed a violation of probation ("VOP") with respect to his 2002 sentence. The Superior Court re-imposed his original sentence — four and a half years at Level V, to be suspended after three years for one and a half years at Level III. Johnson subsequently filed two motions for sentence modification, claiming that he was entitled to credit for the time he had spent in the boot camp program. The Superior Court denied both motions.
(4) In this appeal from the Superior Court's denial of his postconviction motion, Johnson claims that a) the Superior Court improperly failed to give him credit for the time he spent at boot camp when it re-imposed his original sentence; and b) his counsel provided ineffective assistance by failing to file motions addressing the boot camp issue.
(5) Upon a finding that a boot camp graduate has violated his probation, "the court shall proceed to sentencing on all charges for which sentencing was originally deferred . . . , and shall impose not less than the full applicable Level V sentence mandated for the offense. . . . No credit time shall be given for any time spent in boot camp. . . ." However, if a boot camp graduate who commits a VOP previously served at least six months of the Level V sentence that was deferred pending successful completion of boot camp, he is entitled to credit for the time spent at boot camp at the time his sentence is re-imposed.
(6) While Johnson appears to argue that he is entitled to credit for time spent in the boot camp program because he already was serving a Level V sentence prior to entering the boot camp program, that argument is not supported by the statute. Johnson's 2002 Level V sentence for Trafficking in Cocaine was deferred pending his successful completion of the boot camp program. Johnson had served no portion of that sentence prior to entering the boot camp program. It is immaterial that he may have been serving an unrelated Level V sentence prior to entering the boot camp program. We, therefore, conclude that Johnson's first claim is without merit.
(7) Johnson's second claim is that his counsel provided ineffective assistance by failing to file motions addressing the boot camp issue. In order to prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate that his counsel's representation fell below an objective standard of reasonableness and that, but for his counsel's unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different. Although not insurmountable, the Strickland standard is highly demanding and leads to a "strong presumption that the representation was professionally reasonable." The defendant must make concrete allegations of actual prejudice, and substantiate them, or risk summary dismissal.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
(8) It appears from the record that Johnson was not represented by counsel at the time he filed his motions for sentence modification and his motion for postconviction relief. Even if he had been, his ineffectiveness claim would be meritless because his underlying claim of entitlement to credit for the time he spent at boot camp is meritless. We, therefore, conclude that Johnson's second claim of ineffective assistance of counsel is likewise unavailing.
NOW, THEREFORE, IT IS Superior Court is AFFIRMED.
ORDERED that the judgment of the