Opinion
Cr. ID No. 0606015587.
Submitted: December 10, 2009.
Decided: April 1, 2010.
OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF.
DENIED.Shawn E. Martyniak, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Edmund M. Hillis, Assistant Public Defender, Wilmington, Delaware 19801.
Thomas Butts, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
PROCEDURAL HISTORY
Defendant, Thomas Butts, ("Defendant") was indicted for multiple, drug-related charges. On March 20, 2007, he entered pleas of guilty to the charges of Trafficking in Cocaine and Use of a Dwelling for Keeping Controlled Substances. On June 1, 2007, he was sentenced, for the charge of Trafficking, to 10 years incarceration, suspended after 4 years for decreasing levels of supervision. The first two years were a mandatory sentence. For the offense of Use of a Dwelling for Keeping Controlled Substances, the Defendant was sentenced to 2 years incarceration, suspended for 1 year Level III probation supervision, concurrent to the probationary sentence for the Trafficking offense.
The Defendant did not appeal his conviction or sentence. On February 19, 2009, he filed this Motion for Postconviction Relief, in which he makes three claims. First, the Defendant claims his counsel was ineffective in that he did not file a motion to suppress evidence in the case, and incorrectly informed him of the terms of the habitual offender Statute. Second, he claims actual innocence, and claims unspecified violations of Constitutional proportion which he asserts allow that which is "ordinarily unreviewable" to be "subject to review." The third ground the Defendant claims is that there was a Brady violation. It appears, from the entirety of the Submission, that the Defendant is claiming that he was not given all the facts, to which he claims he was entitled, relevant to his Status as an habitual offender. Citing all of these circumstances, the Defendant claims "[i]t is more likely than not that no plea would have been taken."
Def.'s Mot. Post-Conviction Relief ¶ 3.
Brady v. Maryland, 373 U.S. 83 (1963).
Def.'s Mot. Post-Conviction Relief ¶ 11.
STANDARD OF REVIEW
Before addressing the Substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the post conviction claim. In this matter, the Court finds that the provisions of Rule 61 (i) create a procedural bar to considering the challenges raised by Defendant. That section, titled "Bars to Relief," requires that any motion for postconviction relief must be filed within one year of the date the judgment of conviction is final. The Defendant's Motion is, therefore, untimely, and will be DENIED.DISCUSSION
Even if the Motion were timely, it would not be granted. Addressing the issues seriatim, the Defendant is claiming that because his trial counsel did not move to suppress evidence, he was prejudiced in his efforts to defend against the charges against him. Those claims are, however, no longer available to him because, by entering a voluntary guilty plea, he has waived his right to challenge any alleged errors occurring prior to the entry of the plea. In addition, the Defendant now claims actual innocence. However, at sentencing, the Defendant, in fact, admitted the drugs were his, and stated, "I lost a job and I just, you know, I kicked myself in the-excuse me — in the behind every day thinking about this here. Because it's crazy, because as soon as I purchased these drugs I found another job the next week."Finally, the Defendant alleges that he was not properly informed regarding his Status as an habitual offender. The State contended he was eligible to be sentenced as an habitual offender in the plea agreement, but did not seek his sentencing as an habitual offender at the time of sentencing, citing the fact that they could not receive records regarding one of the felonies timely, and decided to simply go forward with the sentencing on the date scheduled. The Defendant benefitted from the State's decision, and the reason for that decision was not that the Defendant did not qualify as an habitual offender, but that the State chose not to seek an extension of time to so establish he did qualify.
Sentencing Tr. 6:1-8, June 1, 2007.
All of these contentions were known to the Defendant at the time of his entry of the pleas of guilty, and thereafter, during the year period following his sentencing, when the filing of his postconviction motion would have been timely. Defendant had time and an opportunity to raise any fact or argument at the time of the entry of the plea, at the sentencing hearing and since. Having failed to do so, they are now procedurally barred. There is no just cause for relief for Defendant's failure to timely file his motion for post conviction relief.
Further, the remedy the Defendant seeks is to withdraw his plea of guilty. The decision to permit a defendant to withdraw his guilty plea rests in the sound discretion of the Court. A defendant seeking to withdraw his guilty plea after the imposition of a sentence bears the bürden of proving that the plea was not voluntarily entered or was entered because of misapprehension or mistake as to the defendant's legal rights.
State v. Phillips, 2007 WL 3105749 (Del. Super 2007) citing Brown v. State 250 A.2d 503, 505 (Del. 1969).
State v. Phillips, 2007 WL 3105749, at *1 (Del. Super. 2007).
The Court will review the entire record in a case to ascertain whether the Defendant's bürden is met. The Court has reviewed the transcripts of the plea colloquy and the sentencing as well as the various documents in the case, and has determined there are no procedural defects in the entry of the plea, and that the record clearly Supports a finding that the Defendant knowingly and voluntarily entered into the plea agreement. Further, the Court finds the Defendant has not shown his legal counsel to be inadequate, or in any way deficient to warrant relief
The Court engaged the Defendant in an extensive plea colloquy to ascertain that his plea was entered knowingly, intelligently, and voluntarily. Before accepting the Defendant's plea, the Court confirmed the Defendant understood the Truth-in-Sentencing Guilty Plea form and his rights at trial and that the Defendant had discussed the Truth-in-Sentencing Guilty Plea form and the plea agreement with his counsel. When asked by the Court if he was satisfied with his counsel's representation, the Defendant answered that he was. Defendant further told the Court that he understood the possible sentences the Court could, in its discretion, impose, and that no one had promised him what his actual sentence would be.
Plea Colloquy Transcript at 10.
Plea Colloquy Transcript at 10; Truth-In-Sentencing Guilty Plea Form dated March 20, 2007.
The Defendant signed a Plea Agreement indicating that he wished to plead guilty to the charges. That document also indicates that the State would request a Presentence Investigation and, at sentencing, recommend sentencing as an habitual offender, a Status that would expose the Defendant to a possible life sentence. In a colloquy with the Court, the Defendant indicated that no one had threatened or forced him to enter into that Agreement. The Defendant also signed a Truth-In Sentencing Guilty Plea Form in which he acknowledged the possible sentence for the offenses to which he was pleading guilty. That form includes both the sentences to which the Defendant was exposed if he was not sentenced as an habitual offender, and those to which he was exposed if he was so sentenced. Therefore, the Defendant was aware that he may not be sentenced as an habitual offender, and that the total possible penalty, if he was not so sentenced, was twenty-eight years, and that there was a minimum mandatory sentence of two years. Further, he indicated that his attorney had fully advised him of his rights. Additionally, he affirmed that he had "freely and voluntarily decided to plead guilty"
Plea Colloquy Transcript at 6; Truth-In-Sentencing Guilty Plea Form dated March 20, 2007.
Plea Colloquy Transcript at 8-9; Truth-In-Sentencing Guilty Plea Form dated March 20, 2007.
Truth-In-Sentencing Guilty Plea Form dated March 20, 2007.
Plea Colloquy Transcript at 6.
A defendant is bound by his answers on the guilty plea form and by his testimony at the plea colloquy in the absence of clear and convincing evidence to the contrary. The record before the Court, including the forms completed by the Defendant and the Defendant's own Statements, do not in any way Support the Claims in his postconviction motion.
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del.Super. October 7, 2008).
In order to prevail in a claim that his attorney was ineffective, the Defendant must establish that the defense counsel's Performance was below accepted Standards, and that, but for the unprofessional conduct of the attorney, the result would have been different. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide ränge of reasonable Professional assistance.
Strickland v. Washington, 466 U.S. 668 (1984).
Younger, 580 A.2d at 556.
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
The Defendant also must show, even if counsel was deficient, that the result would have been different. Here, the Defendant claims his attorney should have filed a motion to suppress evidence in the case and that he received incorrect Information regarding his habitual offender Status. At the time of the entry of the plea, however, the Defendant indicated he was satisfied with the representation he had received from counsel, and did not reference any suppression issues or disputes with counsel regarding that issue. Further, given the fact that the Defendant was not sentenced as an habitual offender, and was fully informed of the penalties he faced if he were not so sentenced, his argument has no merit.
The Truth-in-Sentencing Guilty Plea form and the plea colloquy clearly demonstrate that the Defendant knowingly, voluntarily, and intelligently entered guilty pleas to the charges, understood the penalties he faced, and acknowledged his guilt. He further understood that there was no guarantee what his actual sentence would be.
The Defendant has not demonstrated that his counsel's representation was inadequate and has not met his bürden of showing that he should not be bound by his prior representations under oath. The record reveals no basis to permit the withdrawal of Defendant's guilty plea.
CONCLUSION
Defendant failed to timely file any motion for postconviction relief Even if he had filed timely, he has not provided any basis upon which this Court could conclude that there are sufficient grounds to provide any relief. For the reasons stated above, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.