Opinion
Def. ID #0012013447
March 8, 2002
Motion for Post Conviction Relief (R-1).
Ezra Pendleton, SBI #00290102, Sussex Correctional Institution, Georgetown, DE.
Dear Mr. Pendleton:
This is the ruling concerning the Motion for Post Conviction Relief you filed on January 16, 2002.
In your motion you allege that your attorney was ineffective in that she misled you into signing a plea agreement for more time than you had discussed with her. Therefore, you have charged that she was ineffective and that you did not receive the plea bargain you expected. Finally, you argue the plea was a coerced guilty plea in that you weren't really guilty of these charges but were forced into the deal because it included a nolle prosequi or a dropping of the Kent County charges.
Pursuant to Superior Court Criminal Rule 61(g), I have expanded the record to obtain a response from your attorney as well as from you. Additionally, I have reviewed a copy of the transcript of the plea.
The issues you raise are not procedurally barred because they are grounded in a claim of ineffective assistance of counsel, and that your attorney forced you to enter into the plea.
In order to succeed on a claim of ineffective assistance of counsel you must establish that your attorney's performance was deficient by showing that her representation fell below an objective standard of reasonableness. You must also show that your attorney's errors actually prejudiced you. In establishing prejudice you must show that the unprofessional errors created a reasonable probability of undermining the confidence in the outcome of either your trial or your decision to accept the guilty plea. Strickland v. Washington, 466 U.S. 668 (1984)
If you fail to establish either error by counsel or prejudice, then your claim of ineffective assistance of counsel must be denied.
Your claim concerning the allegations that you were coerced into entering the guilty plea is a fact-driven claim which I will review below.
DISCUSSION
The transcripts and the affidavit of your attorney satisfy me that your claims are groundless. Your attorney's Rule 61(g) response was thorough and included exhibits. In her response she outlines the negotiations she undertook on your behalf, which resulted in the State making a series of offers. Some of the original offers did not include the Kent County charges being dropped, but the plea which you accepted on December 7, 2001, did include the Kent County charges being dropped. Ultimately you accepted a plea where you were exposed to a period of ten years incarceration on the Possession with the Intent to Deliver Cocaine charge, and a period of one year each on the Possession of Paraphernalia and Resisting Arrest charges. In other words, the Court had the authority to sentence you to jail for twelve years.
There was a plea agreement executed by you and your attorney and the State. In that plea agreement you agreed to plead guilty to the three aforementioned charges, with the recommendation of seven years hard time, followed by one year Level 4 probation, followed by Level 3 probation. The Kent County charges were to be dropped pursuant to this plea. It is important to note that it was only a recommendation. After reviewing this with you in the plea colloquy, the Court ultimately accepted the recommendation as being reasonable, and imposed it.
Your claim is that the recommendation was really five years and thus you had an unfulfilled plea agreement. There is nothing in the Court's file, or the plea agreement, or the guilty plea form, to support your position. There was a change on the guilty plea form concerning the minimum mandatory penalty being originally five years and then changed to seven years, but it is clear from the plea agreement that there was a total of seven years of incarceration and that five of those seven years would be pursuant to the minimum mandatory under the Possession with the Intent to Deliver Cocaine charge, the two years would be under the provisions of 11 Del. C. § 4204(k). This brought it up to seven years. The affidavit you filed in this Court on March 2, 2002, included the plea agreement that the Court accepted. On the Possession with Intent To Deliver charge, it was originally five years minimum, with an additional two more years at Level 5. The two years additional was marked through, but the agreement you supplied still has a year on each of the two remaining charges, and this is under 11 Del. C. § 4204(k). In other words, the agreement was to nine years until the two years was struck out. That left seven years on the plea agreement. The Court's agreement is the same agreement you included with your affidavit.
Your attorney, in her affidavit, reported that there was much negotiation involving the sentence and the Kent County charges. She further reports that the plea agreement accurately reflects the deal that was made with the State and the deal she reviewed with you.
In the plea colloquy I made it clear to you that what was being recommended to the Court was just a recommendation, and that you faced a potential of twelve years of incarceration. You acknowledged that and also reported to me that you knew no one could promise what the sentence would be, and that no one had in fact promised you what the sentence would be.
At the time the plea was taken I asked you questions under oath. At the time I asked you these questions, you were aware of the aforementioned plea recommendation, as it had been read into the record. You were asked if you were satisfied with your lawyer. You were asked if you had enough time to consult with her. You responded "yes" to each of these questions. Further, you were asked if you had any complaints as to how she handled your case, and as to whether or not she was forcing you or threatening you into this plea. To each of these you responded "no". You were asked if this was your personal decision to resolve and dispose of the charges with this plea, and you reported to me "yes". Also in the plea colloquy I asked you if you were in fact guilty of the offenses to which you were pleading guilty, and you acknowledged you committed each offense.
Based on the aforementioned, your Motion for Post Conviction Relief is denied. Specifically, I do not find that your attorney committed any error, nor do I find that you have been prejudiced in any way. The plea colloquy does not support your argument that you were tricked or coerced into pleading guilty. While not required to, the Court's sentence tracked what was negotiated. Having failed to establish your claims, the post conviction relief application is denied.
SO ORDERED.