Opinion
ID No. 0104007691
Received: November 1, 2002
Joseph A. Hurley, Esquire
Adam D. Gelof, Esquire
Dear Counsel:
On August 22, 2002, Mr. Hurley filed a Motion for Postconviction Relief pursuant to Rule 61. On August 27, 2002, I corresponded with Rodney Don Sweet, Esquire and Leslie Alvin Stein, Esquire, who represented the defendant on September 24, 2001 when a guilty plea was entered. Pursuant to Rule 61(g), I requested that they respond to the claims of ineffective assistance of counsel and that they do so by way of Rule 61(g), which is by way of affidavit. They were given until September 30, 2002 to respond. Their response was filed on the due date. The defense was given the opportunity to respond by counter-affidavit if they so chose, but they should do so by October 18, 2002. The Court has received nothing from the defense by way of a counter-affidavit. Therefore, the case is ripe for decision.
On September 24, 2001, Mr. Clemons entered a guilty plea to trafficking in cocaine and possession with the intent to deliver cocaine. The Court found the sentence that had been negotiated between the State and the defense to be reasonable, and accepted the recommendation and imposed it. That sentence was six (6) years on the trafficking in cocaine charge. After serving the three-year minimum mandatory, the balance was suspended for three (3) years Level 3 probation. As to the possession with the intent to deliver cocaine charge, sentence was two (2) years Level 5 suspended for two (2) years Level 2 probation, which would be served consecutively to the probation on the trafficking charge. The defendant did not seek a direct appeal from any of the matters in Superior Court.
This is the defendant's first postconviction application and it alleges deficiencies in the record as to the taking of his plea, as well as ineffective assistance of counsel. The claim is not procedurally barred.
In the defendant's postconviction application, he alleges that there was incorrect information disclosed to the defendant at the time he entered the plea. The defendant is correct. The guilty plea form indicates the defendant was to enter a plea to trafficking in cocaine which was punishable by 3 to 20 years, with the three years being minimum mandatory. He was also to enter a plea to possession with the intent to deliver cocaine punishable by up to 10 years incarceration. In the guilty plea form prepared by the defendant's counsel and defendant, it notes the defendant is pleading guilty to delivery of cocaine and possession with the intent to distribute cocaine, each punishable by up to 10 years incarceration. In the plea colloquy, the Court used the maximum for both of the offenses the defendant pled as being ten years, based on the information on the guilty plea form, when in fact the maximum sentence for trafficking in cocaine is twenty (20) years. Based upon this, defendant reports that he received incorrect information concerning the penalties he faced, presumably creating confusion; but it's noteworthy, that in the Rule 61, there is no allegation as to how or why this defendant was confused or mistaken as to what he was doing. Presumably this is because the above mistake was to the benefit of the defendant in that it cut the maximum sentence on the lead charge.
The defendant also complains that the plea colloquy was insufficient because when the defendant acknowledged he possessed at least five grams of cocaine or more as a lesser included offense of the indicted charge, that this was insufficient and legally deficient because the Court did not ask him if he knowingly possessed the five grams.
The defendant complains that both of his attorneys were ineffective. Specifically, he complains they let him enter the guilty plea based upon incomplete information. He complains that he did not have all of the discovery which he was entitled to in addition to all of the statements of co-defendants.
He also complains that he had inadequate opportunity to confer with his attorneys prior to forming his decision to enter the guilty plea. The defendant alleges he did not have the proper factual and legal understanding to enable him to make a decision to enter a guilty plea.
Finally, the defendant alleges that both separately and in the aggregate the allegations aforementioned establish that this guilty plea was not knowingly, intelligently and voluntarily entered.
DISCUSSION
The defendant was charged by grand jury indictment with trafficking in cocaine, 50 grams to 100 grams, possession of cocaine with the intent to deliver, conspiracy in the 2nd degree, maintaining a dwelling for purposes of keeping controlled substances, and possession of drug paraphernalia.
At the September 24, 2001 guilty plea, Deputy Attorney General Melanie Withers represented the Attorney General's Office on behalf of Deputy Attorney General Adam Gelof, who was in another courtroom in trial. September 24, 2001 was case review day. It is obvious that mistakes were made, but I do not find those mistakes to have prejudiced the defendant in any way nor caused confusion concerning what the defendant knew about the plea and what had been negotiated. This is especially true since the defendant received exactly what was negotiated, even though he knew he could have received a period of incarceration up to twenty (20) years. Again, the up to twenty (20) years that was told to him was a mistake. But it was a mistake to the defendant's benefit as the possible incarceration for these charges was up to thirty (30) years. The Court cannot see how this mistake would cause confusion on the defendant's part such that he would wish to reject the plea offer as opposed to having the benefit of the mistake.
In the plea colloquy, I addressed the defendant and told him that I understood he wished to plead guilty to trafficking in cocaine, which carried a three-year mandatory period of incarceration, up to ten years, and further that he wished to plead guilty to possession with the intent to deliver cocaine which carried a penalty of up to ten years. I told him that the plea agreement recommendation was not binding on the Court and asked him if it was his desire to plead guilty. He answered "Yes". The defendant was sworn and I asked him if he was satisfied with both of his lawyers or whether he had any complaints. He advised that he was satisfied and had no complaints. I asked him if his lawyers or anyone on earth was forcing him to enter the plea, and he advised "No". He further responded that he had had enough time to talk with them and consult with them about his decision. I referenced the charging document and asked him if he committed the offense of trafficking in cocaine, that is did he possess at least five grams of cocaine or more. He answered "Yes". I then asked him that if he had a problem with the plea that he should tell me at that time and he reported he had no problem, and that he wanted to do this, and again that it was his personal decision. He then received the sentence that had been negotiated, as it was found to be reasonable.
As noted, the defendant had two attorneys. One attorney is local and a general practitioner. As a general practitioner, that attorney appears before this Court regularly representing persons charged with crimes. His co-counsel was from Baltimore, M.D. and has a practice limited to criminal law.
The Rule 61(g) affidavits from these attorneys paint a picture that the defendant was fully involved in his defense, was in communication with his attorneys, was aware that his brother was prepared to expose defendant's full involvement in the sale of cocaine in order to resolve his own charges, and that if the State became aware of his involvement through his brother's cooperation, things would probably go south very quickly. Specifically, the defendant admitted to his attorneys his involvement in a very large cocaine distribution enterprise. He informed his attorneys that he was very concerned about his brother, and that there was a feeling that his brother's predicament was caused by the defendant's criminal activity.
Defense counsel initially saw the "attractiveness of going to trial because of the lack of physical evidence connecting the defendant to the cocaine which formed the basis of the substantive charges". But as time went by, the defendant's brother's attorney made the defendant's attorneys aware of his brother's intentions.
The State, if they had the brother as a witness, together with other co-defendants that had cooperated, would have a very strong case at trial. Counsel were concerned that the information about the extent of the defendant's drug activity was soon to fall into the State's hands. The 61(g) affidavits evidenced that the defendant was visited at the prison by his attorneys, was in communication with his attorneys by a series of collect calls, and with their meetings with him at Court.
This was not a take-it-or-leave it plea given by the State, but a negotiated plea in which the State's initial request that the defendant complete the Key program while incarcerated and then to Level 4 at the end of three years was removed from the plea agreement by way of the negotiations.
Defense counsel were aware that what they had received from the State by way of discovery was not complete, but defendant was aware of his brother's immediate cooperation with the authorities and the brother's statements incriminating the defendant and providing a strong connection between the defendant and the recovered cocaine. Again, more importantly, his brother's attorney made the defendant's attorneys aware that the brother had information as to the defendant's full involvement in cocaine distribution and was ready to make his own deal with the State, to the detriment of the defendant.
CONCLUSIONS
In order for defense counsel to be found ineffective, defendant must establish that his attorneys' performance was deficient by way of an objective standard. Additionally, the defendant must establish that he was actually prejudiced by the deficient performance of his attorneys. If defendant fails in either of these prongs, then the defendant's claim of ineffective assistance fails. Strickland v. Washington, 466 U.S. 668 (1984). I find that the only mistake made by the attorneys was that the guilty plea in which delivery of cocaine and its penalties were written in instead of trafficking in cocaine. The Court likewise made a mistake in that the Court did not pick up the error and relied on the ten-year period of incarceration as to cap on the trafficking charge.
In all other respects, I find that the attorneys' performance was professional, appropriate, and effective. Based upon the contents of the rule 61(g) affidavits, which are uncontradicted, I find that defense counsel were fully involved in the representation of their client, and had obtained the necessary knowledge by which to provide guidance to their client, both through their own client's communications with them as well as the communications with the prosecutor and co-defendant's counsel. Time was important in light of the defendant's brother's communication that he would cooperate with the State. It is clear that that cooperation would have at least subjectively changed the State's view of this defendant and how big a player he was.
Having established the mistake in the guilty plea form as to the ten years, which was compounded by this Judge, I nevertheless find that there is no prejudice. Instead of being informed that the possible penalty was up to 20 years, the defendant was informed the possible penalty was up to 10 years. Based upon the plea colloquy, I am satisfied that the defendant has shown no prejudice, and therefore, his petition for Rule 61 relief is denied. The defendant received exactly what he bargained for. The Court did not exceed in either its sentence or the probation the erroneous ten-year maximum upon which the defendant's plea was entered.
Defendant's Motion for Postconviction Relief is denied.
SO ORDERED.