Opinion
ID No.0212005958.
Submitted: September 27, 2006.
December 20, 2006.
Ronald L. Cannon Sussex Correctional Institution, Georgetown, DE 19947.
Thomas A. Pedersen, Esquire, Georgetown, DE 19947.
Peggy J. Marshall, Esquire Deputy Attorney General Department of Justice. Georgetown, DE 19947.
Dear Counsel and Mr. Cannon:
This is my decision on Ronald L. Cannon's ("Cannon") motion for postconviction relief. Cannon pled guilty to Trafficking in Cocaine and Possession with Intent to Deliver Marijuana and no contest to Possession of a Firearm by a Person Prohibited. The charges arose out of an administrative search by probation and parole officers of the apartment where Cannon was staying with his girlfriend, Shawna Barnes, and her son, Nathan Smalls ("Smalls"), a 12-year-old. Cannon was on probation at the time. The probation officers found $12,005 in cash, a handgun and evidence of illegal drug activity in the apartment. The handgun was found under the mattress in a bedroom occupied by Smalls. Smalls told the police that Cannon gave him the handgun to hide. The cash was found in Cannon's pant's pocket and in a closet. Large quantities of cocaine and marijuana were found in another closet. Cannon was represented by Thomas A. Pedersen, Esquire ("Pedersen"). The State of Delaware (the "State") was represented by Peggy J. Marshall ("Marshall"). Pedersen filed a Motion to Suppress. A hearing on the motion was scheduled for April 8, 2003. The State extended a plea offer to Cannon, subject to it being withdrawn if Cannon proceeded with the suppression hearing. Cannon, who was facing a life sentence because of the current charges and his prior convictions, accepted the State's plea offer. I sentenced Cannon to nine years at Supervision Level V. Marshall and Pedersen filed affidavits in response to Cannon's allegations.
DISCUSSION
This is Cannon's first motion for postconviction relief and it was filed in a timely manner. Cannon alleges that (1) Pedersen was ineffective, and (2) the probation officers' administrative search of the apartment violated the law in a variety of ways. Given the nature of the allegations, I have concluded that an evidentiary hearing is not necessary.
I. Ineffective Assistance of Counsel
Cannon alleges that Pedersen (1) failed to discover Brady material and the information used by the probation officers to justify the administrative search; (2) failed to go forward with the suppression hearing; (3) failed to request a Flowers hearing; (4) failed to exercise Cannon's constitutional rights; and (5) coerced Cannon into acce ptin g the plea of fer. In order to prevail on his claim of ineffective assistance of counsel, Cannon must show (1) that Pedersen's actions fell below an objective standard of reasonableness; and (2) there exists a reasonable probability that, but for Pedersen's errors, Cannon would not have pled guil ty. Mere allegations of ineffectiveness will not suffice. Cannon must make specific allegations of actual prejudice and substantiate them. Moreover, any review of Pedersen's representation is subject to a strong presumption that his representation of Cannon was professionally reasonable. a. Brady Material
Brady v. Maryland, 373 U.S. 83 (1963).
Flowers v. State, 316 A.2d 564 (Del.Super. 1973). Flowers v. State, 316 A.2d 564 (Del.Super. 1973).
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
Wright, 671 A.2d at 1356; Younger v. State, 580 A.2d 552, 555-56 (Del. 1990).
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).[2] Flowers v. State, 316 A.2d 564 (Del.Super. 1973).
Cannon alleges that Pedersen failed to obtain all of the Brady material and the information used by the probation officers to justify the administrative search. His allegations are not supported by the record. Pedersen did receive, in a timely manner, the police reports, discovery and the information used by the probation officers to justify the administrative search. He also received copies of the transcript of Cannon's preliminary hearing and Smalls' plea agreement. Based on the information that he obtained through discovery, Pedersen filed a motion to suppress. A hearing on the motion to suppress was scheduled, but was cancelled when Cannon accepted the State's plea offer. Cannon has not identified any Brady or other material that Pedersen should have obtained, but did not. Thus, Cannon's allegations are non-specific and conclusory.
b. Suppression Hearing
Cannon alleges that Pedersen was ineffective because he did not go forward with the suppression hearing. He believes that the Court would have granted his motion to suppress and excluded the evidence that was obtained as a result of the probation officers' administrative search. However, Cannon does not explain why the evidence should have been suppressed. Thus, once again, Cannon's allegations are non-specific and conclusory. However, it is clear that if Cannon went ahead with the suppression hearing, the State would have withdrawn the plea offer. Faced with an uncertain situation and the possibility of a lifetime in prison, Cannon accepted the plea offer instead of proceeding with the suppression hearing. Cannon, not Pedersen, decided to do this.
c. Flowers Hearing
Cannon alleges that Pedersen was ineffective because he did request a Flowers hearing. He alleges that a Flowers hearing would have provided him with information about the informant. However, Cannon has not established that he would have been entitled to a Flowers hearing and he has also not explained how information about the informant would have helped his case, which focused on Cannon's possession of drugs and a handgun, not the alleged involvement of an informant in these crimes. Once again, Cannon's allegations are non-specific and conclusory.
d. Cannon's Constitutional Rights
Cannon alleges that Pedersen was ineffective because he did not exercise any of his constitutional rights. He alleges, in support of this argument, that Pedersen should have exercised his right to confront witnesses, to be informed of the nature of the charges against him, to have compulsory process in obtaining witnesses, and to the assistance of counsel. Cannon certainly was entitled to exercise these rights. However, they are not absolute and they can be waived. Cannon did waive them. These rights are listed on the Truth-In-Sentencing Guilty Plea Form. The following question is also on the Truth-In-Sentencing Guilty Plea Form:
Do you understand that because you are pleading guilty you will not have a trial, and you therefore waive (give up) you constitutional right:
1. To be presumed innocent until the State can prove each and every part of the charge(s) against you beyond a reasonable doubt;
2. To a speedy and public trial;
3. To trial by ju ry;
4. To hear and question the witnesses against you;
5. To present evidence in your defense;
6. To testify or not testify yourself; and
7. To appeal to a higher court?
The possible answers are "Yes" and "No." Cannon answered "Yes." I also discussed the wai ver o f th ese r ight s with C ann on. The fol low ing i s an excerpt of the plea col loq uy:
The Court: Do you see the seven rights in bold print on this form?
The Defendant: Yes.
The Court: Did you discuss them with Mr. Pedersen?
The Defendant: Yes.
The Court: Do you understand those rights?
The Defendant: Yes.
The Court: Do you understand that you are waiving those rights by entering these pleas?
The Defendant: Yes.
The Court: Do you understand there will not be a trial because you are entering these pleas?
The Defendant: yes.
I discussed with Cannon the significance of waiving these rights. Cannon stated that he understood these rights and clearly expressed his desire to waive them. Cannon's allegation that he did not have assistance of counsel is without merit. Pedersen represented Cannon through the plea process and sentencing. As for not being aware of the nature of the charges against him, the indictment clearly identifies the charges Cannon was facing. Moreover, I asked Cannon if he understood the nature of the charges and he said that he did. The following is an excerpt of the plea colloquy:
The Court: Mr. Cannon, it is my understanding that you want to plead guilty to the charges of trafficking in cocaine. What was the weight on that one? The range?
Ms. Marshall: A little bit over 50 grams.
The Court: Between 50 and 100?
Ms. Marshall: Yes.
Mr. Pedersen: Yes.
The Court: That you want to plead guilty to that charge, you want to plead guilty to possession with the intent to deliver marijuana; is that correct, Mr. Cannon?
The Defendant: Yeah
The Court: Do you understand the nature of each of those charges?
The Defendant: Yes.
The Court: You do understand that you are pleading guilty to; is that correct?
The Defendant: Yeah.
The Court: And it's my understanding that you want to plead no contest to the third charge. That charge is possession of a firearm by a person prohibited; is that correct?
The Defendant: Yes.
The Court: Do you understand the nature of the charge as well?
The Defendant: Yeah.
I have no doubt whatsoever that Cannon knowingly, intelligently and voluntarily waived all of his constitutional rights.
e. Coercion
Cannon alleges that Pedersen coerced him into accepting that State's plea offer. He alleges, in support of this argument, that Pedersen threatened to quit if he did not accept the plea. Pedersen denies this allegation. The record supports Pedersen's denial of Cannon's allegations. The following question is on the Truth-In-Sentencing Guilty Plea Form:
Has your attorney, the State, or anyone threatened or forced you to enter this plea. The two possible answers on the form are "Yes" and "No." Cannon answered "No." The following is an excerpt of the plea colloquy:
The Court: Has anybody forced you to take these pleas? The Defendant: No.
The Court: Did anybody coerce you into taking these pleas, Mr. Cannon? The Defendant: You can say that, but-
The Court: Well, Mr. Cannon, it is very important that you are d oing thi s knowingly, int ell igen tly, and voluntarily. If it's not, then there is no point in doing this. Do you understand you are looking at a nine-year minimum-mandatory sentence and that you may not be anxious to do this, but you are also facing, it looks like 33 years.
Ms. Marshall: Actually 41 years. The Court: I'm sorry, 41 years?
Ms. Marshall: He is a habitual offender eligible for the possession of marijuana and the possession of a f irearm during t he co mmi ssi on of a fe lon y.
The Court: I understand the two choices are not attractive. I need to know that you are doing this vol unt ari ly. The Defendant: Yeah.
The Court: I want to run over that again. Has anybody coerced you into doing this? The Defendant: No.
The Court: Has anyone promised you anything in exchange for doing this?
The Defendant: No.
The Court: Has anyone forced you to do this?
The Defendant: No.
The Court: You are doing this because you think it's the best choice among the alternatives that you have, is that correct?
The Defendant: Yes.
It is well-established that a "defendant's statements to the Court during the guilty plea colloquy are presumed to be truthful." Further, "[t]hose contemporaneous represen tations by a defendant pose a `formidable barrier in any subsequent collateral proceeding.'" Consequently, in the absence of clear and convincing evidence to the contrary, Cannon is bound by his statements on the Truth-in-Sentencing Guilty Plea Form and by his sworn testimony prior to my acceptance of the guilty plea. Pedersen did not coerce Cannon into accepting the plea.
State v. Denston, 2003 WL 22293651 at *5 (Del.Super.Ct.), citing Bramlett v. A.L. Lockhart, 876 F.2d 644, 648 (8th Cir. 1989); Davis v. State, Del. Supr., No. 157, 1992, Walsh, J. (Dec. 7, 1992)(Order).
Denston, 2003 WL at *5, quoting Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (quoting Blackledge v. Allison, 431 U.S. 63, 73 (1977)).
Denston, 2003 WL at *5 citing Fullman v. State, Del. Supr., No. 268, 1988, Christie, C.J. (Feb. 2, 1988) (Order). See Little v. Allsbrook, 731 F.2d 238, 239-40, n. 2 (4th Cir. 1984); cj. Patterson v. State, 684 A.2d 1234, 1238 (Del. 1996).
I have concluded, based on the forgoing, that Pedersen's representation of Cannon did not fall below an objective standard of reasonableness.
II. The Administrative Search
Cannon alleges that there were a number of violations of law regarding the probation officers' administrative search of the apartment. However, since I have concluded that Pederson's representation of Cannon was reasonable and did not leave Cannon with no choice but to ple d gui lty, Cannon's decision to accept the State's offer and plead to the three charges is a waiver of any alleged problems with the administrative search.
State v. Davis, 2002 WL 31478008 at *1 (Del.Super.).