Opinion
No. IN 01-06-2606R1, 2607R1, 2608R1; IN 01-06-1755R1, 1756R1, 1757R1, 1758 R1, 1759R1, 1760R1, 1761R1, 1762R1, 1763R1, 1764R1, 1765R1, 1766R1, 1767R1, 1768R1, 1769R1, 1770R1, 1771R1, 1772R1, 1773R1, 1774R1, 1775R1, 1778R1, IN-01-06-2373R1.
Submitted: December 8, 2005.
Decided: March 3, 2006.
OPINION
Petitioner Aaron A. Carter seeks postconviction relief in connection with his conviction on March 13, 2002, of various felonies arising from a home invasion and robbery. His total sentence was fifty-seven years of incarceration, followed by probation.
Factual Background
In the early morning hours of March 24, 2001, Defendant Aaron A. Carter and an accomplice broke into the New Castle County residence of Michael and Gina Dudlek. After entering the master bedroom, Carter aimed a .45 caliber handgun at the couple and ordered Michael from his bed. The rest of the Dudlek family, including Gina and their two young children, were herded into a room on the first floor of the house under the guard of Carter's accomplice.
Carter ordered Michael into his car and accompanied him to several area banks to withdraw funds from ATM Machines. Michael deducted $500.00 from his joint account using his own ATM card. He was then denied further withdrawals due to established transactional limitations. Carter ordered Michael to return home to obtain his wife's ATM card, to make further deductions. Michael obtained her ATM card and was forced to return to an ATM Machine to deduct another $500.00 from the account. After the transactions were complete, Carter ordered Michael to return home. Michael had withdrawn $1000.00 on Carter's demand.
Upon returning to the Dudlek residence, Carter ordered Michael to draft a check, payable to cash, in the amount of $1000.00. With the check, the $1000.00 cash, and various items of property in hand, Carter and his accomplice left the Dudlek residence. Shortly thereafter, the New Castle County police were contacted and responded to the Dudlek residence to investigate.
Later on March 24, 2001, during a Delaware State Police officers' investigation unrelated to the events which occurred at the Dudlek residence, police contact was made with Carter. Carter was found to be in possession of a $1000.00 check, drawn on the Dudlek account and $851.00 cash. Additionally, upon a search of Carter's bedroom, .45 caliber ammunition was found. Delaware State Police officers contacted New Castle County investigators regarding their findings. Carter was arrested the same day.
On March 13, 2002, a Superior Court jury convicted Carter of first degree burglary, three counts of first degree robbery, five counts of second degree kidnapping, three counts of first degree aggravated menacing, twelve counts of possession of a deadly weapon during the commission of a felony, second degree conspiracy, and wearing a disguise during the commission of a felony. Carter was sentenced to fifty-seven years of Level V incarceration followed by probation. On October 16, 2002, the Delaware Supreme Court affirmed Carter's conviction.
Carter v. State, 808 A.2d 1204 (Del. 2002)
Indicted Charges
Carter was indicted on twenty-six counts associated with the four members of the Dudlek family and convicted on all charges. Among the indicted charges were three counts of Robbery First Degree (Counts III, V, and IX) alleging the use of force on Michael Dudlek.The indictment also contains one count of Aggravated Menacing alleging Michael Dudlek as the victim (Count XV). That count of Aggravated Menacing has an associated count of Possession of a Firearm During the Commission of a Felony (Count XVI).
There are two other counts of Aggravated Menacing alleging other family members as the victims (Count XIII — Gina Dudlek, Count XVII — Erin Dudlek). Both Aggravated Menacing charges have associated weapons charges (Count XIV and XVI).
Error of Law
Subsequent to the trial in this case, the Supreme Court decided Poteat v. State. Poteat concludes that Aggravated Menacing is a lesser-included offense of Robbery First Degree. As a result of that ruling, the convictions of Count XV — Aggravated Menacing, and the associated weapons charge — Count XVI, are stricken. The Aggravated Menacing charges associated with other family members are not effected by Poteat.
Poteat v. State, 840 A.2d 599 (Del. 2003).
The State has requested a resentencing of the defendant due to the change in sentencing. The defendant has been sentenced to serve a total of fifty-seven years at Level V, with probation to follow. The modification caused by this decision eliminates a three year minimum mandatory sentence on one weapon charge (IN 01-06-2608) and a one year sentence on the aggravated menacing charge (IN 01-06-1775). With this adjustment, he remains sentenced to fifty-three years of incarceration. Given the defendant's age, 44 years, born January 20, 1962, the likelihood that he will ever be released is negligible. Although a resentencing is legally permissible, I decline to do so under these circumstances.
White v. State, 576 A.2d 1322, 1328 (Del. 1990).
Ineffective Assistance of Counsel
The defendant charges his counsel with failing to investigate and prepare for trial; failure to object to irrelevant evidence; failure to file a motion to dismiss the Aggravated Menacing charge as a lesser-included offense; failure to challenge defective indictment and double jeopardy issues; and errors resulting in defendant not securing a more lenient plea.
A defendant must support his claim of ineffective with concrete allegations of actual prejudice. To succeed on such a claim, a defendant, "`must show that counsel's representation fell below an objective standard of reasonableness,' and `that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'"
Austin v. State, 2002 WL 32071647 *2 (Del.Super.) (citations omitted)
Flamer, 585 A.2d at 753 (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988)).
As to the failure to investigate and prepare a claim, his counsel Neil Lapinski, Esquire, has responded that he had an adequate period of time to prepare. When assigned to the case, he quickly secured a continuance of the trial date to permit him to do the work necessary to prepare. He obtained discovery from defendant's first counsel, subpoenaed additional records, and continued the relationship prior counsel had established with a private investigator. He also took photographs, and met with the defendant on at least two occasions prior to trial. There is no indication from the defendant as to how the efforts of his counsel fell below an objective standard of reasonableness, or in what way the outcome of his case would have been different.
Letter Affidavit of Neil R. Lapinski to the Court (Dec. 7, 2005), D.I. 44
The second claim regarding failure to object to irrelevant evidence is too vague to merit consideration.
The third claim, failure to file a motion to dismiss Aggravated Menacing as a lesser included offense, is without merit. The state of the law at the time of defendant's trial did not support such a motion. More importantly, the defendant now, pursuant to this order, will receive the benefit of that change in the law.
The next claim regarding a defective indictment and double jeopardy are too vague to merit consideration.
The final claim regarding a more lenient plea is especially ironic. The Court conducted a colloquy with the defendant prior to the trial to ensure that he understood that the plea he was rejecting, which carried nine years of incarceration, was withdrawn once trial commenced. He was also informed that there was a large amount of mandatory time associated with the charges so that, if convicted, there would be a Ahuge, huge penalty." The defendant decided to go to trial; he was convicted. There is nothing in the record or in his petition to support a claim that the plea offer achieved by his counsel, and rejected by him, was less than excellent.
Trial Tr., 3-4, March 7, 2002.
The balance of the allegations are designated constitutional violations and Equal Protection denials, but there is no authority cited for any of them.
Dealing with them factually, the allegation regarding the statement of Larry Washington is without merit. Washington was a witness. The State had no duty under Rule 16 or under Brady v. Maryland to provide his recorded statement. The statement was subject to Jencks v. United States. The State exceeded its obligations. Defense counsel acknowledges that the statement was received and reviewed, and that he helped to redact the statement prior to his cross-examination of Mr. Washington.
Brady v. Maryland, 373 U.S. 83 (1963).
Jencks v. U.S., 353 U.S. 657 (1957).
Letter Affidavit of Neil R. Lapinski to the Court (Dec. 7, 2005), D.I. 44
The defendant refers to a comment I made on the record about an encounter with the victim, Michael Dudlek. Other than this bare assertion, the defendant does not explain why he considers that to be a basis for postconviction relief. It is not.
Trial Tr., 48-49, March 13, 2002.
The Court: AI ran into Mr. Dudlek at the salad bar when the case began, and I told him I couldn't talk to him. And I hope that didn't seem rude, but at the time it's very important, when legal proceedings are going on, that there not appear to be any communications that are inappropriate. And therefore, I don't talk to anybody who's involved in litigation, regardless of what their interests might be, and I don't talk to attorneys unless I talk to both of them. Those are the rules, and those make sure that our process as it proceeds isn't tainted. So when it's over with, we have a sense of finality. And I hope you understand that explanation."
The claim associated with removal of a juror is too vague to discuss, and merits no consideration. As is the claim that Ano pretrial motions were filed."
Def.'s Mot., at 3, D.I. 39
The conflict as to representation was addressed when it arose. The conflict arose when it was determined that others with an interest in the case were represented, or had been represented, by the Office of the Public Defender. Lapinski was then appointed. As Lapinski noted in his letter responding to this petition:
Mr. Carter was represented by the Office of the Public Defender at his preliminary hearing before a conflict arose. Thereafter, court appointed counsel was obtained. It should also be noted that I was in possession of the preliminary hearing transcript and reviewed it repeatedly in preparation for trial.
Letter Affidavit of Neil R. Lapinski to the Court (Dec. 7, 2005), D.I. 44
The final ground for relief is addressed above. It is factually incorrect; defense counsel did have a copy of the preliminary hearing transcript.
The defendant has failed to demonstrate any basis for postconviction relief, other than the sentence modification associated with the charges of Aggravated Menacing involving Michael Dudlek and the related weapon charge.
The Petition is DENIED. A modified sentencing is issued concurrent with this Opinion.
IT IS SO ORDERED.