Opinion
ID No. 0312007348.
Date Submitted: December 15, 2006.
April 27, 2007.
William B. Wilgus, Esquire, Department of Justice, Georgetown, DE.
Melanie C. Withers, Esquire, Millsboro, DE.
Memorandum Opinion — Motion for Postconviction Relief
Dear Counsel:
This is my decision on Michael H. Kurzmann's ("Kurzmann") motion for postconviction relief. Kurzmann pled guilty to one count of Assault in the Second Degree and three counts of Endangering the Welfare of a Child on April 21, 2004. I sentenced Kurzmann to seven years at Supervision Level V, suspended for declining levels of probation. The State of Delaware (the "State") alleged that Kurzmann violated his probation by, among other things, punching his wife, Lea, in the face on July 4, 2005. I held a violation of probation hearing on July 27, 2005, August 1, 2005, and August 5, 2005. The State was represented by Melanie C. Withers, Esquire ("Withers") and Kurzmann was represented by Michael R. Abram, Esquire ("Abram").
I found that Kurzmann violated his probation and resentenced him to seven years at Supervision Level V, with credit for time served, followed by six months at Supervision Level IV. Kurzmann filed an appeal with the Delaware Supreme Court. The Delaware Supreme Court affirmed my finding that Kurzmann violated his probation. This is Kurzmann's first motion for postconviction relief. It was filed in a timely manner.
Kurzmann v. State, 903 A.2d 702 (Del. 2006).
DISCUSSION
Kurzmann alleges that Abram (1) was not prepared for sentencing, (2) did not tell the sentencing judge that Kurzmann had been undergoing mental health, anger management and marriage counseling, and (3) did not file a "postconviction motion to modify the sentence" to make the sentencing j udge aware of Kurzmann's participation in various counseling programs both before and after sentencing. Kurzmann argues that the sentencing judge would have given him a lighter sentence if he had been aware of his participation in the various counseling programs.
The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must engage in a two-part analysis. First, the defendant must show that counsel's performance was deficient and fell below an objective standard of reasonableness. Second, the defendant must show that the deficient performance prejudiced the defense. Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." It is also necessary that the defendant "rebut a `strong presumption' that trial counsel's representation fell within the `wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the `distorting effects of hindsight when viewing that representation.'"
Strickland v. Washington, 466 U.S. 668 (1984).
Strickland, 466 U.S. at 687.
Id. at 687.
Id. at 687.
State v. Coleman, 2003 WL 22092724 (Del.Super.Ct.).
Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689.
1. Sentencing
Kurzmann alleges that Abram was not prepared for sentencing. His allegation is not supported by the record. Abram argued at sentencing that Kurzmann should be placed on probation with no contact with Lea except for counseling sessions with her. Abram's rationale for this was that probation would allow Kurzmann to support his family and mend his relationship with Lea. While I thought Abram's argument made sense, I ultimately concluded that Kurzmann should serve a lengthy period of incarceration for what he had done.
2. Counseling
Kurzmann alleges that Abram did not tell me at sentencing about the counseling he was undergoing. Kurzmann believes that if I had been aware of this, then I would have given him a lighter sentence. Once again, his allegations are not supported by the record. Abram stated in his affidavit that he made a conscious decision not to mention Kurzmann's renewed efforts at counseling because Kurzmann had not completed the counseling sessions and had been asked by at least one of his counselors not to return. Abram's decision was a sound one. I knew that Kurzmann had attempted counseling in the past with mixed results. I also knew that Kurzmann had been undergoing counseling prior to sentencing because he told me this before I sentenced him. In any event, I was aware that Kurzmann was undergoing counseling at the time of his sentencing and, notwithstanding that, I concluded that Kurzmann should serve a lengthy period of incarceration for what he had done.
3. Postconviction
Kurzmann alleges that Abram should have filed a motion for postcoviction relief seeking a reduced sentence. Abram stated in his affidavit that Kurzmann never told him that he was participating in various counseling programs while in prison. Thus, Abram had no reason to file such a motion. Moreover, even if Abram had done so, I would not have reduced Kurzmann's sentence because I remain convinced that Kurzmann should serve a lengthy period of incarceration for what he had done.
CONCLUSION
Kurzmann's motion for postconviction relief is denied.
IT IS SO ORDERED.