Opinion
ID No. 9709015080. Nos. K97-10-0237-R1, K97-10-0238-R1
January 21, 2000.
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Marie O'Connor Graham, Esq., Deputy Attorney General, Dover, Delaware 19901, for the State of Delaware.
Joseph Bennett, pro se.
COMMISSIONERS REPORT AND RECOMMENDATION
On March 30, 1998, the day his trial was to begin, the defendant, Joseph Bennett ("Bennett") pled guilty to one count of Robbery in the First Degree, 11 Del. C. § 832 and one count of Criminal Mischief, 11 Del. C. § 811. At the request of the parties, a presentence office investigation was ordered. Prior to Bennett's entering the guilty plea, the State put Bennett, his attorney, and the Court on notice of its intention to file a motion to declare Bennett a habitual offender. On April 7, 1998, the State formally filed its motion to declare Bennett a habitual offender. The motion was heard by the Court on August 21, 1998 before Bennett's scheduled sentencing. At the request of Bennett's counsel, the Court ordered Bennett to undergo a psychiatric evaluation to determine his competency to stand trial and be sentenced. Prior to his sentencing, the Court found Bennett competent based upon the psychiatric evaluations. At the hearing on his habitual offender status, Bennett acknowledged he had the requisite felony convictions and did not oppose the motion.
Transcript of guilty plea colloquy ("plea colloquy") at 3-7. See also the Plea Agreement between Bennett and the State.
Transcript of Colloquy Before Sentencing at 5.
The Court proceeded to grant the State's motion and declared Bennett a habitual offender. Next, the Court sentenced Bennett to 40 years incarceration pursuant to 11 Del. C. § 4214(a) to be served consecutively to a Sussex County sentence. Bennett did not appeal his conviction or sentence to the State Supreme Court.
Bennett has now filed a motion for postconviction relief alleging the following grounds for relief:
Ground one: That his sentence violated the double jeopardy clause of the United States Constitution.
Ground two: That he was not provided a "fair and impartial" hearing concerning his habitual offender status.
Ground three: That his counsel was ineffective for failing to petition the Court for a psychiatric evaluation.
Under Delaware law, the Court must first determine whether Bennett has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of his postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within three years of the conviction becoming final. Bennett's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Bennett's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, Del. Supr., 588 A.2d 1121 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255 (1989)). See Dawson v. State, Del. Supr., 673 A.2d 1186, 1190 (1996).
Super. Ct. Crim. R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgement of conviction are thereafter barred unless the movant demonstrates: 1) cause for the procedural fault; and 2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or to a colorable claim of miscarriage of justice stemming from a constitutional violation that "undermines the fundamental legality, reliability, integrity or fairness of the proceeding leading to the judgement of conviction."
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Only Bennett's third ground for relief makes any effort at alleging cause for his failure to have raised it sooner. That ground alleges ineffective assistance of counsel. Bennett's first and second grounds for relief consequently should be barred by Rule 61(i)(3). Furthermore, Bennett has not made an attempt to claim any colorable constitutional violation as to any of his grounds for relief. Bennett has therefore only alleged cause for not having asserted his third and final ground for relief at trial and on direct appeal by claiming ineffective assistance of counsel. This type of claim is not normally subject to the procedural default rule, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal. For this reason, many defendants, including Bennett, allege ineffective assistance of counsel in order to overcome the procedural default.
However, this path creates confusion if the defendant does not understand that the test for ineffective assistance of counsel and the test for cause and prejudice are distinct, albeit similar, standards. The United States Supreme Court has held that:
State v. Gattis, Del. Super., ID No. 90004567DI-R2, Barron, J. (Dec. 28, 1995) (Mem. Op.) at 8.
[i]f the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that the responsibility for the default be imputed to the State, which may not "conduc[t] trials at which persons who face incarceration must defend themselves without adequate legal assistance" ineffective assistance of counsel then is cause for a procedural default.
Murray v. Carrier, 477 U.S. 478, 488 (1986).
A movant who interprets the final sentence of the quoted passage to mean that he can simply assert ineffectiveness and thereby meet the cause requirement will miss the mark. Rather to succeed on a claim of ineffective assistance of counsel a movant must engage in the two part analysis enunciated in Strickland v. Washington and adopted by the Delaware Supreme Court in Albury v. State.
466 U.S. 668 (1984) ( "Strickland").
Del. Supr., 551 A.2d 53 (1988).
The Strickland test requires the movant show that counsel's errors were so grievous that his performance fell below an objective standard of reasonableness. Second under Strickland the movant must show there is a reasonable degree of probability that but for counsel's unprofessional error the outcome of the proceedings would have been different, that is, actual prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland at 687. See Dawson, 673 A.2d at 1190.
Id. at 694; Dawson, 673 A.2d at 1190; Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Righter v. State, Del. Supr., 704 A.2d 262, 264 (1997); Younger v. State, 580 A.2d 556; Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989): Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER): Kerchliner v. State, Del. Supr., No. 451, 1994, Holland, J. (June 21, 1995) (ORDER); Accord Wells v. Petstock, 941 F.2d 253, 259-60 (3rd Cir. 1991).
Generally, a claim for ineffective assistance of counsel fails unless both prongs of the test have been established. However, the showing of prejudice is so central to this claim that the Strickland court stated that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed" In other words, if the Court finds that there is no possibility of prejudice even if a defendant's allegations regarding counsel's representation were true, the Court may dispose of the claim on this basis alone. Furthermore, the defendant must 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 at 687.
Id. at 697.
State v. Gattis, Mem. Op. at 9.
Strickland at 689; Dawson, 673 A.2d at 1190; Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996).
In the case at bar, Bennett attempts to show cause for his procedural default by making a conclusory assertion of ineffectiveness of counsel. In regards to prejudice, I can discern no effort to make concrete allegations of actual prejudice or to substantiate said allegations of prejudice. As the record clearly shows, Bennett's counsel did in fact request a psychiatric examination. The conclusion of the examining physician was that Bennett was competent to stand trial and was basically exaggerating to avoid the consequences of his actions. Clearly, Bennett's allegations are factually erroneous and completely meritless. These failures are fatal to Bennett's Rule 61 petition and should result in summary dismissal for his ineffective assistance of counsel claim.
See, e.g., Wright v. State, Del. Supr., 671 A.2d 1353, 1356 (1996); Skinner v. State, supra, Brawley v. State, Del. Supr., No. 372, 1992, Moore, J. (Oct. 7, 1992) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1991) (ORDER). See also, Dixon v. State, Del. Supr., No. 153, 1991, Holland, J. (Jan. 14, 1992) (ORDER).
In conclusion, I recommend that the Court deny Bennett's postconviction motion as procedurally barred by Rule 61(i)(3) and as meritless.