Opinion
I.D. No. 9801009576
Date submitted: February 24, 1998
Date decided: March 26, 2001
ORDER and OPINION
Upon review of Movant Patrick C. Byrd's ("Movant") Motion for Post Conviction Relief and the record, it appears to the Court:
1) On February 24, 1998, Movant motioned for post conviction relief pursuant to Rule 61. Michael W. Modica, Esq. ("Plea Attorney") represented Movant during Movant's plea agreement and plea colloquy to the Court. Cynthia R. Kelsey, Deputy Attorney General, ("DAG" or "State") represented the State and offered Movant a plea agreement that included State v. Byrd, Rule 61 Motion for Post Conviction Relief Trafficking in Cocaine, Driving With Suspended License, and Violation of Probation. Nolle prosequi was entered on other charges in exchange for Movant's agreement to the guilty plea.
Movant indicated that the attorney he preferred was Mr. James Bayard, Esq. who refused representation. The Court then appointed Ms. Street, Esq. to represent Movant. Later, Movant's parents paid Mr. Modica, Esq. to represent the Movant. See Reply letter to plea attorney and deputy attorney general's responses to movant's Rule 61 motion, [3, note], State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. (December 20, 2000).
Trafficking in Cocaine requires that the defendant possess 5 — 50 grams of Cocaine. See 16 Del. C. § 4753A(a)(2)(a).
2) The DAG dropped among other charges a Possession with Intent to Deliver Cocaine. The DAG indicated that if Movant had not agreed to the offered terms of the plea agreement, the DAG would have pursued the Possession with Intent to Deliver Cocaine. The Plea Attorney correctly informed Movant that if Movant rejected the plea agreement, the Movant could have taken his case to trial. Plea Attorney also correctly informed Movant that if Movant was found guilty of the Possession with Intent to Deliver Cocaine charge, Movant would face a mandatory minimum sentence of 15 years because Movant had already been convicted of a prior Possession with Intent to Deliver Cocaine charge. However, all three parties, the Movant, the Plea Attorney, and the DAG, conducted their agreement without the presence of the medical examiner's report concerning seized substances and their weights found on the Movant's person or in his vehicle.
See State's Response to Movant's Motion for Post Conviction Relief, [1], State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. (October 30, 2000). See also Michael W. Modica, Esq.'s Response to Movant's Motion for Post Conviction Relief, [2 — 3], State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. (October 25, 2000).
See Michael W. Modica's Response at [2], supra. See also "Immediate Sentencing Form," [1 — 23, State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. [February 24, 1998 (presumed)].
3) The medical examiner's report later indicated that Movant had possessed only 2.86 grams of Cocaine. Now, Movant asserts that he plead involuntarily, unknowingly, and unintelligently to the charge of Trafficking in Cocaine where such a charge was unsupported by the facts, i.e., Movant possessed only 2.86 grams of Cocaine and not the required 5 — 50 grams of Cocaine cited by statute.
See "Controlled Substance Laboratory Report," [1], State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. (April 03, 1998).
4) Movant attacks his conviction as "illegal" on what would appear to be two issues. He asserts that 1) the Plea Attorney "had not investigated the law or the facts of the case" nor had Plea Attorney conducted discovery and therefore provided ineffective counsel; and 2) the State withheld exculpatory evidence. Because the crux of Movant's motion consists of the Plea Attorney's alleged failure to procure the medical examiners report and the failure of the State to provide said report, both shall be considered.
See Reply letter to plea attorney and deputy attorney general's responses to movant's Rule 61 Motion, [1], State v. Byrd, Del. Super., I.D. No. 9801009576, Gebelein, J. (December 20, 2000).
Id. at [2]. Movant also asserts that the medical examiner's substance report would be at Movant's case review. See id.
However, DAG credibly states that the State did not withhold the medical examiner's report. The plea agreement occurred on February 24, 1998, and the medical examiner's report was produced on April 03, 1998. Therefore, the incomplete report was not available at the time of the plea agreement.
5) In Bacon v. State the Delaware Supreme Court stated that the Court "will set aside convictions due to discovery violations only when the State's failure to comply with Rule 16 prejudices the substantive rights of the defendant."
633 A.2d 368, 1993 Del. LEXIS 388 [11] (1993) (citing Skinner v. State, Del. Supr., 575 A.2d 1108, 1126 (1990)).
6) However, in State v. Ortiz the Superior Court held that when the State fails to comply with discovery requests, a defendant's arguments are without merit "because by having pleaded guilty, [defendant] waived his constitutional right to a trial. Ortiz also held that "settled Delaware law clearly states that "a voluntary and intelligent plea agreement waives all defects allegedly occurring before the defendant enters the plea. . . .'"
1999 Del. Super. LEXIS 22, [21 (citing Sheppard v. State, 367 A.2d 992, 994 (Del.Supr. 1976).
Id. (citing Haskins v. State, 599 A.2d 413 (Del.Supr. 1991), 1991 Del. LEXIS 277, [3]) (ORDER) (emphasis added).
7) But, nonetheless, defense attorneys are bound by the Strickland v. Washington test in which
a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
466 U.S. 668, 690 (1984). See also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (holding that the Strickland test equally applies to challenges to guilty pleas based on ineffective assistance of counsel).
The Strickland test presents a high threshold which a Movant is required to meet.
8) In Hill v. Lockhart, the U.S. Supreme Court stated that "where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, " prejudice is ascertained by determining if the error caused the Movant to plead guilty rather than go to trial. Prejudice "will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea." The Supreme Court proceeded to also state that "predictions of the outcome at a possible trial, where necessary, should be made objectively, without regard for the "idiosyncrasies of the particular decisionmaker.'"
Hill at 59 (emphasis added).
Id.
Id.
9) It would seem that the Delaware Superior Court's decision in State v. Ortiz contradicts the U.S. Supreme Court's decision in Hill v. Lockhart. The Ortiz Court held that when a defendant pleads guilty, the defendant waives his constitutional right to a trial; it also held that a voluntary and intelligent plea agreement serves to waive any defects allegedly occurring before the defendant enters a plea. On the other hand, the Hill Court held that when a defendant alleges that counsel is ineffective due to the failure to investigate or discover potentially exculpatory evidence, prejudice can be adduced by objectively determining if the error caused the defendant to plead guilty rather than go to trial. This Court adopts the Hill standard as outlined by the U.S. Supreme Court.
Ortiz at [2].
Hill at 59.
10) Movant alleges that the Plea Attorney failed to investigate and discover potentially exculpatory evidence. Movant is correct. The Plea Attorney did fail to investigate and discover the exculpatory evidence embodied in the medical examiner's report. Movant alleges that Plea Attorney was made aware that Movant believed that the package containing Cocaine weighed less than the statutory requirement of 5 — 50 grams of Cocaine. The medical examiners report indicated that Movant possessed Cocaine only in the amount of 2.86 grams, substantially less than the 5 gram minimum to sustain a Trafficking in Cocaine charge. It is readily apparent that Plea Attorney did not investigate or discover potentially exculpatory evidence that would likely lend to the Movant's acquital on a Trafficking in Cocaine charge. Plea Attorney admits to not having proceeded with an investigation or discovery.
See "Controlled Substance Laboratory Report" at [1], supra. Plea Attorney admits that Movant relayed suspicions that the Cocaine weight was less than 5 grams. Michael W. Modica, Esq.'s Response to Movant's Motion at [2].
Michael W. Modica, Esq.'s Response to Movant's Motion at [2], supra.
11) In Hill the U.S. Supreme Court instructed that prejudice is ascertained by determining if the Plea Attorney's error caused the Movant to plead guilty rather than go to trial. The Court further explained that prejudice depends on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea." Movant had the option to either plead guilty to the Trafficking in Cocaine charge or go to trial with the DAG prosecuting Movant for Possession with Intent to Deliver Cocaine. Had the Movant proceeded to trial, it is likely a verdict of guilt would have been returned. Movant was indicted for Trafficking in Cocaine, Possession with Intent to Deliver Cocaine, Use of a Vehicle for Keeping Controlled Substances, Criminal Impersonation, Speeding, No Possession of a Registration Card, No Proof of Insurance, and Driving while License is Suspended; Movant was also subsequently charged with Violation of Probation. Sufficient objective evidence existed that would have likely resulted in conviction of some if not all of these charges. The Plea Attorney's failure to properly investigate and discover exculpatory evidence, however, would not have objectively caused the Movant to go to trial rather than settle with a plea agreement.
Hill at 59.
Id.
See "Indictment by the Grand Jury," [1-4], State v. Byrd, Del. Super., I.D. No. 9801009S76, (February 17, 1998 (presumed)].
12) Movant was faced upon conviction of the PWID charge with at the very least a 15 year minimum, nondiscretionary sentence because Movant had already been convicted of one Possession with Intent to Deliver Cocaine charge. The DAG indicated at the time of the plea itself, and, continues to maintain that if Movant were to withdraw his plea, the DAG will pursue Possession with Intent to Deliver Cocaine against the Movant. Therefore, Plea Attorney's error did not prejudicially cause the Movant to plead guilty to the charges eventually agreed to. Defendant's Attorney precluded the State from withdrawing its Plea offer and subjecting the defendant to a likely mandatory 15 years in prison.
"Immediate Sentencing Form" at [1-2].
See State's Response to Movant's Motion at [1], supra. See also Michael W. Modica, Esq.'s Response to Movant's Motion at [2 — 3], supra.
13) Ultimately fatal to the Movant's argument is his knowledge that the Cocaine was not in excess of 5 grams. While Movant has not shown in the record how Movant could have known for sure, his awareness of the less than 5 grams of Cocaine could have allowed him to reject the plea agreement and wait for the medical examiner's report. The Court objectively believes that Movant did not wait for the medical examiner's report because Movant appreciated that by accepting the Plea he would not face the harsher 15 year minimum sentence should he be found guilty of to Possession with Intent to Deliver Cocaine. The Court finds that Movant entered into this plea agreement voluntarily, knowingly, and intelligently despite the discovery errors of Plea Attorney.
14) Finally, the Court notes, that Defendant's Attorney would not have changed his recommendation had he known of the lesser quantity of Cocaine. The Attorney recognized that the Movant was plea bargaining to a charge that carried less incarceration time not withstanding the lack of evidence. He informed Movant that the plea offered by the DAG was appreciably less risky than taking a chance at trial with a 15 year minimum sentence imposed should Movant be found guilty.
15) The Court finds that despite Movant not having access to the medical examiner's report and despite the Attorney not properly discovering the medical examiner's report, Movant entered the plea agreement voluntarily, knowingly, and intelligently.
For the foregoing reasons, Movant's motion for post conviction relief is DENIED.
IT IS SO ORDERED.