Opinion
No. 642, 2002.
Submitted: March 21, 2003.
Decided: May 5, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr.A. Nos. IN00-10-0552 IN00-10-0569
Appeal dismissed.
Unpublished opinion is below.
WILLIAM A. PARISI, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 642, 2002. Supreme Court of Delaware. Submitted: March 21, 2003. Decided: May 5, 2003.
Before HOLLAND, BERGER and STEELE, Justices
Carolyn Berger, Justice:
ORDER
This 5th day of May 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, William A. Parisi, filed an appeal from the Superior Court's October 29, 2002 order denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) After being indicted on numerous counts of burglary, theft, and conspiracy, among other charges, Parisi pleaded guilty in March 2001 to two counts of Burglary in the Second Degree. Under the terms of the plea agreement, Parisi admitted that he was an habitual offender. He was sentenced by the Superior Court on each count of second degree burglary to 8 years incarceration at Level V, to be followed by 6 months probation at Level III. Parisi did not file a direct appeal from his convictions or sentences.
SUPER.CT.CRIM.R. 11(e)(1)(C) (deleted July 1, 2001).
DEL. CODE ANN. tit. 11 Del. C. § 4214(a).
(3) In this appeal, Parisi claims that: a) his guilty plea was involuntary because he was not informed of the nature of the charges or the mandatory penalty for those charges; b) the Superior Court breached the plea agreement by disallowing any good time credits and by imposing two 6-month probationary sentences; c) the Superior Court should not have permitted him to admit to habitual offender status because the State did not present any evidence of prior convictions; and d) his counsel provided ineffective assistance by permitting him to plead guilty to second degree burglary in the absence of evidence that he had committed that crime and by failing to inform him of his right to appeal his probationary sentences.
Parisi withdraws this claim in his reply brief.
(4) Parisi's claim that his plea was involuntary is refuted by the record. The plea agreement, the guilty plea form and the transcript of the plea colloquy all clearly reflect that Parisi understood the nature of the plea and its consequences, understood that he was waiving his right to an appeal, was satisfied with the representation provided by his counsel and knowingly and intelligently entered the plea. Absent clear and convincing evidence to the contrary, Parisi is bound by the representations he made at the time the plea was entered.
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
(5) Parisi's claim that the Superior Court breached the plea agreement by imposing probation in connection with his Level V term is without merit.
The plea agreement reflects that Parisi agreed to a total of 16 years incarceration at Level V, which is what the Superior Court imposed. When imposing a term of incarceration totaling one year or more, however, the Superior Court is mandated by statute to impose probation "for a period of not less than 6 months to facilitate the transition of the individual back into society." The Superior Court properly followed the statutory requirement when imposing Parisi's sentence and Parisi can not claim error on that basis.
DEL. CODE ANN. tit. 11 Del. C. § 4204(l).
(6) Parisi's claim that his habitual offender status was improperly accepted by the Superior Court without any evidence of past convictions is without merit. Parisi agreed during the guilty plea proceedings that he qualified for habitual offender status. By accepting the plea agreement, which contained that stipulation, Parisi waived his right to a hearing to determine his status as an habitual offender.
Parker v. State, Del. Supr., No. 244, 2000, Veasey, C.J. (July 26, 2000).
(7) In order to prevail on his claim of ineffective assistance of counsel, Parisi must show 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. In order to prevail on his claim that his counsel was ineffective in connection with the entry of his guilty plea, Parisi must show that, but for his counsel's unprofessional errors, he would not have pleaded guilty but would have insisted on proceeding to trial.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Somerville v. State, 703 A.2d at 631.
(8) There is no evidence in the record that any action on the part of Parisi's counsel, either in connection with the guilty plea or otherwise, resulted in any prejudice to Parisi. Parisi's plea of guilty to two counts of second degree burglary resulted in a number of other serious charges being dropped, thus providing a substantial benefit to him. Also unavailing is Parisi's claim that his counsel improperly deprived him of an opportunity to appeal his probationary sentences. Because the Superior Court was mandated to impose a period of probation, any such appeal would have been fruitless and Parisi can, therefore, show no prejudice due to any alleged error on the part of his counsel.
Downer v. State, 543 A.2d 309, 312-13 (Del. 1988).
DEL. CODE ANN. tit. 11 Del. C. § 4204(l).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.