Opinion
ID No. 9805010748 Cr.A. No. IN-09-06-0107-R2
Submitted: December 4, 2002
Decided: March 20, 2002
Defendant's Motion for Postconviction Relief — DENIED
Mr. Bryon Brown #257877, Wilmington, DE 19802.
Dear Mr. Brown:
You filed two separate motions for postconviction relief in connection with your guilty pleas and the sentences on those pleas. Your first was with Judge Gebelein, who took your guilty pleas to two counts of possession of heroin, one reduced from possession with intent to deliver, and resisting arrest. Your other postconviction relief motion is addressed to me as the judge who sentenced you.
While two motions have been filed, the claim is essentially the same. It is that your attorney provided ineffective assistance of counsel. Specifically, you contend your attorney failed to bring to my attention your cooperation with police authorities in drug investigations. You assert that, as a result of that cooperation, you were to be sentenced to level 3 probation and outpatient treatment. Counsel's failure to tell me of your cooperation resulted, you contend, in a different sentence.
Instead of the suspended jail sentence, I sentenced you on the possession of heroin (reduced from possession with intent to deliver) to three years at level 5, but upon successful completion of Key, the balance of the level 5 would be suspended for level 3. On the other possession of heroin charge, I sentenced you to two years at level 2 and on the resisting arrest charge, the sentence was one year of concurrent level 2 probation.
When you pled guilty to these three charges, you were aware that the maximum amount of time you could receive was seven years in jail. Since you have a prior drug conviction, the maximum penalty for each of the two possession charges was raised from one to three years.
16 Del. C. § 4763(a)(1)b.
Your accusations against your counsel were sent to him for comment. He states, in part:
You have asked that I address Ground Two in which [Brown] alleges I provided him ineffective assistance in the sentencing phase of his cases. I unequivocally deny that allegation. [Brown] received a very reasonable plea which came about after extensive negotiations with the State. The matter of his involvement with the State was discussed at length with the prosecutors and they gave us a plea which was accepted. The State through Ms. Knoll was not impressed with his cooperation. I spoke directly with Officer Sullivan and he was not impressed with [Brown]'s cooperation. Officer Sullivan wanted him to do additional work for the State.
All of this was explained to [Brown] and he took the plea. I wrote him explaining that the pre-sentence investigation would be critical so he should cooperate with the pre-sentence office. In spite of this, [Brown] did not meet with the pre-sentence office and capiased on his sentencing date. [Brown]'s cases had been already delayed because he was a victim of a crime on one occasion. A second time he came to court with an infectious disease either Shingles or Chicken Pox. These continuances also assisted in my plea negotiations with the State.
Crosse letter (October 30, 2001).
Counsel's complete letter was sent to you on October 31, 2001. In addition, I sent you the prosecutor's (Ms. Knoll) letter of October 16, 2001 to whom your attorney referred in his letter.
In Ms. Knoll's letter, she pointed out that your plea to the reduced charge of possession of heroin avoided a minimum jail sentence of fifteen years due to a prior conviction of possession with intent to deliver. The prosecutor writes that the plea she offered you, and which was accepted, was in recognition of your cooperation. But, she adds, she never agreed to your attorney's request that the State recommend no incarceration. Instead, she notes, the State wanted a presentence investigation and would likely ask for incarceration. Her letter says this was made known to your lawyer before your plea.
Judge Gebelein ordered a presentence investigation after he accepted your pleas. You failed, however, to appear for your presentence interview. In your response to the prosecutor's letter, you offered several explanations for this failure. Primarily, you say, it was due to your ongoing work with the police and being evicted from your residence. Appearing at the presentence office, of course, would have enabled you to explain your cooperation with the police. What the presentence investigation revealed was your serious criminal history, recent capias history and difficulty dealing with requirements of probation. That history, naturally, included drug activity.
It is against all this background that you now claim your attorney was ineffective for failing to present the mitigation of cooperation to me when I sentenced you. To succeed on a claim of ineffective assistance of counsel, you must show (1) counsel's representation fell below an objective standard of reasonableness and (2) but for counsel's errors, there is a reasonable probability that the outcome of your sentencing would have been different.
Stone v. State, 690 A.2d 924 (Del.Supr. 1996).
Judge Gebelein has already addressed and rejected your ineffective assistance claims that your cooperation was not taken into account in the plea negotiations. I reach the same result he did as it relates to your sentencing proceedings. The record shows your attorney did the best he could. You received a favorable plea offer in light of your record and the extent of the cooperation provided. Your belief that you would get only a suspended jail sentence is a product, on this record, of self-delusion.
State v. Brown, Del, Super., Cr.A. No. IN-98-06-0107-R1, Gebelein, J. (October 11, 2001).
The mitigation of sentence which you claim was due was reflected in the plea offer made to you, particularly avoiding a 15-year mandatory sentence for a second possession with intent to deliver, and which you accepted. The prosecutor's letter makes that clear and indicates the State was going to ask for some jail time. It is unlikely under these circumstances that you can meet the burden of showing your attorney was ineffective for not mentioning to me your cooperation. Absent such a showing, you cannot meet the first of the two prongs of attorney ineffectiveness, that of showing professional error. On that basis, your ineffective assistance claim fails.
Dawson v. State, 673 A.2d 1186 (Del.Supr. 1996).
Where your claim of ineffectiveness really falls flat, however, is on the prejudice prong. Assume your counsel should have mentioned to me at sentencing your efforts at cooperation. Your lawyer's letter alone raises serious doubts about the quality of that help based on his conversation with Det. Liam Sullivan. In addition, had your attorney thought there was something positive to offer, the prosecutor's letter makes it clear the State would have vigorously disagreed.
In addition, if all of this had been brought to my attention at sentencing, the sentence I imposed would not have changed. Your drug involvement history and lack of response to "community supervision," i.e., probation, demanded a different approach. I felt drug treatment was a paramount need but that you needed it in a custodial setting such as Key offers. I did not impose jail time as such. Your jail time is suspended when you finish Key.
All of this means you cannot show that if your counsel mentioned your cooperation, it would have made a difference. It would not have. To put it another way, you cannot show prejudice. On this basis, too, your claim of ineffective assistance of counsel fails.
Sommerville v. State, 703 A.2d 629 (Del.Supr. 1997).
CONCLUSION
For the reasons stated herein, defendant Bryon L. Brown's motion for postconviction relief is DENIED.IT IS SO ORDERED.