Opinion
I.D. No. 0701002735 (R-1).
April 20, 2007.
Joseph A. Levan, Sussex Correctional Institution, Georgetown, DE.
Dear Mr. Levan:
On February 26, 2007, the Court received your Motion for Postconviction Relief. In same you raised two grounds. First, you allege ineffective assistance of counsel. As to that claim, you allege your attorney pushed you into taking a plea, and that she did not pursue a suppression motion because she said you "would not win it".
In your second ground, you allege an unfulfilled plea agreement. You state that after you signed the plea agreement, the recommended period of incarceration was changed from 5 to 6 years.
Neither of these grounds would be procedurally barred as the plea entered on January 30, 2007 is being attacked for ineffective assistance of counsel and misrepresentation.
The Court has obtained a transcript of your guilty plea; and based upon my review of same, your Motion for Postconviction Relief is denied.
A defendant is bound by his answers during a plea colloquy in the absence of clear and convincing evidence to the contrary. Summerville v. State, Del. Supr., 703 A.2d 629 (1997).
Prior to the colloquy, I asked you if you were going to tell me the truth and you stated you would. I asked you if you were satisfied with your lawyer's services. You replied "yes". I asked you if you had any complaints. You replied "no". I asked you if your lawyer or anyone else was forcing you to plead guilty. You replied "no". You acknowledged your guilt and you also acknowledged that you were stepping up to the plate and saying "I did wrong".
Based on this portion of the colloquy, I find that you were not forced or pushed into taking a guilty plea.
An attorney is not required to file every motion that his or her client wishes to be filed. An attorney is required to use their best judgment, based on the law and the facts, as to whether or not it is appropriate or necessary to file a motion. Assuming you wanted a suppression motion filed and she chose not to file it, that does not establish ineffective assistance of counsel. To establish this claim, you must show that she was not only wrong in not filing it, but that you were prejudiced, i.e., that had she filed it, you would have succeeded. Strickland v. Washington, 466 U.S. 668 (1984). You failed to address the Strickland requirements, and this claim is denied.
As to Ground 2, you allege that there was a 5 instead of a 6 in the recommendation portion of the plea agreement. I note that there is a number underneath the 6, but I also note that the 6 is written out as "six". More importantly, in the plea colloquy when you were standing before me, the recommendation was read into the record as being 6 years and therefore you were aware of same prior to the entry of the plea. This means that it was in fact 6, or you chose not to correct it. I am satisfied that the statements in the transcript, made in your presence, accurately reflect the recommendations as negotiated.
Alternat ively, you informed me that nobody promised you what your sentence would be and you knew that it was a recommendation only. You could have received up to 28 years plus the balance of the violation of probation. Knowing it was a recommendation only, you have no basis to claim you relied on it.
Therefore, based upon my determination that you were in fact informed that it was a 6 year recommendation, and alternatively that you knew that it was a recommendation only, there is no basis to grant Rule 61 relief and this claim is denied.
Defendant's Motion for Postconviction Relief is denied.
IT IS SO ORDERED.