Opinion
0210012355B.
May 2, 2007.
John H. Benge, Jr. SBI, Sussex Correctional Institution, Georgetown, DE.
Dear Mr. Benge:
Before the Court are two motions filed by John H. Benge, Jr., formerly John H. Benge, Jr., Esquire (hereinafter referred to as "Benge"). Benge attacks the guilty pleas entered on January 20, 2004, to Possession of a Deadly Weapon By a Person Prohibited and two counts of Criminal Contempt. He was sentenced on January 20, 2004, with the benefit of a presentence investigation. He was previously convicted of Assault in the Second Degree, lessor included offense of Attempted Murder in the First Degree, Criminal Trespass in the First Degree, lessor included offense of Burglary in the Second Degree and Offensive Touching, lessor included offense of Assault in the Second Degree and sentenced by the Honorable E. Scott Bradley to nine (9) years and thirty (30) days at level V pursuant to 11 Del. C. § 4204K, followed by six (6) months of level IV work release.
The guilty pleas entered on January 20, 2004, were to charges that had been severed from those Benge went to trial on before the Honorable E. Scott Bradley.
Benge also pled guilty to three counts of Wiretaps, two counts of Burglary in the Third Degree, lessor included offenses of Burglary in the Second Degree and Attempted Wiretaps in New Castle County Superior Court on January 13, 2004. Benge was sentenced in New Castle County Superior Court on March 19, 2004 to three (3) years at level V followed by probation.
The guilty pleas on January 20, 2004, were made on the morning of trial and were taken as an exception to the Court's general policy on not allowing plea negotiations on the morning of trial. Benge was represented by Joseph A. Hurley, Esquire, an attorney specializing in criminal defense law.
In this case, Mr. Hurley filed pretrial motions arguing that count 6 (weapon offense) and count 12 (contempt) were "multiplicious." He also argued counts 11 and 12 (both contempt charges) were "multiplicious."
On January 20, 2004, the Court questioned the similarity of the weapon offense and the contempt offense. The defense then specifically waived this issue, seeking to pursue the plea bargain. The negotiated plea recommendation was for probation on the weapon offense and fifteen (15) days on each of the contempt offenses.
After accepting the plea, reviewing the presentence report generated for Judge Bradley's sentence, Benge ultimately received the following sentences:
The sentence was later corrected to reduce probation from 18 months to 12 months on Count 6.
Count 6 — Possession of a Deadly Weapon by a Person Prohibited — 2 years at level V suspended after serving 6 months under 11 Del. C. § 4204K, followed by 12 months level 2.
Count 11 — Contempt/PFA — 15 days at level V.
Count 12 — Contempt/PFA — 15 days at level V.
There was no appeal. In December, 2006, Benge filed a Motion for Post-Conviction Relief and a Motion for Rule 35 Relief. They tracked each other and perhaps were filed based on the cautiousness of what Benge learned as a practicing attorney, i.e. cover all bases.
The Rule 61 Claims
(a) Count 6, the weapon offense, and count 12 are in reality the same charge and are barred by double jeopardy. Count 6 allege she had a weapon but was prohibited from same by a Family Court PFA. Count 12 alleges he failed to obey the order by possessing a firearm.
(b) Apprendi v. New Jersey , 530 U.S. 466 (2007) and Blakely v. Washington , 542 U.S. 296 (2004) require a jury to make the factual determinations necessary before a judge can sentence above SENTAC guidelines.
(c) The pleas were not made knowingly, voluntarily and intelligently.
(d) The State breached the plea agreement as to the recommendation.
The Rule 35 Claims
(a) The same double jeopardy claim raised in the Rule 61 motion.
(b) The same Apprendi claim made in the Rule 61 motion.
The Plea
Prior to the plea, the Court told Benge that, although there was a recommendation as to the sentence, it was not binding on the Court. Being aware of same, Benge chose to proceed with the entry of the plea.
During the plea, the Court raised its concern, as raised in the earlier defense motion, that the weapon offense and contempt offense might be problematic under Blockberger . The defense specifically waived this potential objection or problem.
Blockberger v. United States , 284 U.S. 299 (1932).
Benge admitted he possessed a deadly weapon while prohibited from doing so, and that he was in contempt of two Protection from Abuse ("PFA") orders issued by Family Court. He knew he faced two (2) years on the weapon offense and one year each on the contempt offenses. He understood he could get up to four (4) years total.
He advised he had gone through the guilty plea form line by line with Mr. Hurley and that he understood it. He had no questions about it. After reviewing all of his trial rights, he advised the Court he wished to waive t hose rights and plead guilty.
With the agreement of the parties, the Court sentenced Benge, after reviewing the presentence report from the earlier trial.
At sentencing, Mr. Hurley laid out the position concerning its pretrial motions and then noted that "my client has waived the ability to make those arguments premised upon what he believes is a fair sentencing recommendation by the State and knowing that the Court is not bound by the recommendation."
Prior to the plea the State informed the Court of it's recommendation. In the comments at sentencing, the State did not recommend any additional time directly or by inference. When the defense was permitted to respond to the State's remarks, as is my custom, no complaints were voiced that the State had violated the recommendation by making it's comments.
Procedural Bars
Each of the claims made in Benge's Rule 61 motion were known at the time he was sentenced. This includes the claim that his plea was not knowingly, voluntarily and intelligently entered, because Benge states he knew the law, including Apprendi, at the time of his sentence and was confused. All of Benge's claims could have been raised on appeal, but he chose not to appeal. Therefore, Rule 61(i)(3) is applicable in that he has not shown cause for not pursuing an appeal of known claims, nor has he shown prejudice. The interest of justice exception contained in Rule 61(i)(5) should not be a door opener when the defendant, a legally trained individual, and/or his attorney, were aware of all of the above claims but chose not to appeal them. Under these facts, the claims are waived. Finally, I note that Benge does not attack his attorney as ineffective.
Alternative Ruling — Merits
In the event that it is determined that Benge's claims are not procedurally barred, I deny them based on the merits.
(a) Double jeopardy — I find that any claim that the charges were duplications were waived (i) by the entry of the guilty plea, Haskins v. State , Del. Supr. 188, 1991, Moore, J. C. (August 19, 1001) (Order); and (ii) by Benge's knowing and voluntary waiver, done in order to obtain a plea recommendation. Benge is bound by his agreement and the waiver in open Court. If a person can plead guilty to a charge that does not exist, Downer v. State , Del. Supr. 543 A.2d 309 (1988), he surely can waive his known constitutional rights pursuant to a plea. He is estopped from now taking a contrary position.
(b) Apprendi does not limit this Court's authority to sentence up to the statutory maximum, Riego v. State , Del. Supr., 171, 2005, Jacobs, J. B. (October 4, 2005) (Order); Shabazz v. State , Del. Supr., 545, 2004, Ridgely (June 14, 2005) (Order); Benge v. State , Del. Supr., 137, 2004, Berger (November 12, 2004) (Order); Siple v. State , Del. Supr., 453, 1996, Holland. The SENTAC guidelines are just that, guidelines.
(c) The defendant claims his plea was not knowingly, intelligently and voluntarily entered as to Court 6, Possession of a Deadly Weapon By A Person Prohibited. He was charged in the indictment with this offense, specifically 11 Del. C. § 1448(a)(6). In the negotiations, as established on the record, and in the guilty plea form, the maximum penalty was stated to be two (2) years. Now Benge argues that, because it could have been eight (8) years because he possessed a firearm, his plea was not entered knowingly, voluntarily and intelligently. This argument is absurd and is denied for the following reasons:
(1) The statute contains two potential penalties. Benge's negotiations resulted in him being exposed to the lower of the two.
(2) The Court sentenced Benge to the lower of the possible sentences, i.e., he did not get anything more then he thought he was potentially going to get.
(3) Finally, he attacks the prosecutor for creating the problem in the guilty plea form. I note that the guilty plea form was filled out by the defendant and his lawyer, not the prosecutor. The guilty plea form tracks the plea as stated on the record. The only confusion is that which the defendant attempts to create.
(d) There is no factual basis to infer that the prosecutor violated the agreement. The Court was told by the prosecutor that the State was recommending fifteen (15) days each on the contempt charges and probation on the weapon offense. Her final sentencing comments were directed to why the thirty (30) days was appropriate and nothing more.
Conclusion
In summary, Benge's Post Conviction Motion is denied as being procedurally barred. Alternatively, it is denied as to the merits. Likewise, the Rule 35 Motion is denied for the reasons stated above.