Opinion
Cr. ID No. 0110006694A-R1.
Submitted: August 1, 2007.
Decided: August 20, 2007.
ORDER
This 20th day of August, 2007, upon consideration of the defendant's motion for postconviction relief and the responses of the State and defense counsel, Brian Bartley, it appears that:
1. On January 14, 2003, defendant, Donald Cole (Cole) pled guilty to one count of Attempted Murder 1st, two counts of Possession of a Firearm During the Commission of a Felony (PFDCF), and one count of Assault 1st. A nolle prosequi was entered on all other charges.
2. On March 28, 2003, Cole was sentenced on the charge of Attempted Murder 1st to Level V incarceration for eighteen (18) years, suspended after fifteen (15) years, followed by decreasing levels of probation; the first fifteen years is a mandatory sentence. He was sentenced on each charge of PFDCF to Level V incarceration for three (3) years, also mandatory time. He was sentenced on the charge of Assault 1st to Level V incarceration for one (1) year.
3. Cole did not file a direct appeal of his conviction.
4. On February 10, 2006, Cole filed this motion for postconviction relief alleging four grounds for relief including two claims of ineffective assistance of counsel, coerced confession and prosecutorial misconduct. The motion was held in abeyance until his appeal in another murder case was resolved. The Supreme Court affirmed that conviction on March 12, 2007. I will address each of the four grounds for relief in turn.
Cole v. State, 922 A.2d 364 (Del. 2007).
5. The first claim in Cole's Rule 61 motion is ineffective assistance of counsel. To prevail on a postconviction relief claim based on ineffective assistance of counsel, defendant is required to meet both prongs of the test set forth in Strickland v. Washington. That is, a movant must show both "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." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Strickland v. Washington, 466 U.S. 668.
Id. at 694.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Flamer, 585 A.2d at 753.
6. Cole alleges that, "[c]ounsel for movant fail [sic] to inform court that movant wanted to withdraw said plea of guilt before the sentencing date of movant. Furthermore, counsel never filed a direct appeal concerning the prosecution misconduct and handling of movant statement(s) concerning the misleading of movant in which movant pleaed [sic] guilty under false pretense(s) [sic]."
7. Mr. Bartley filed an affidavit in response to this claim in which he states:
Cole's decision to plead guilty was a voluntary one . . .The genesis of Mr. Cole's decision to plead guilty was Mr. Cole's moral concern over the likely conviction of his co-defendant Elwood Hunter who Mr. Cole insisted was, unlike himself, innocent.
* * *
There was 'no deal behind [Defendant's] back' made between prosecution and myself. Moreover, because the agreement specifically provided that the statements would be made pursuant to D.R.E. 410, the statement(s) could not be used to support Mr. Cole's conviction.
The defendant did express an interest to me at one point in withdrawing his guilty plea. However, upon discussing this with Mr. Cole, the request turned out to be ill-informed and not in his best interest. As it turned out, the motive behind Cole's request was not to assert his innocence and proceed to trial but rather only to be [sic] reach a position in which he could re-negotiate a plea which would carry fewer minimum mandatory years than those that accompanied the charges to which Cole had already pled guilty.
In My professional judgment, there was no basis for a motion to withdraw Cole's guilty pleas prior to sentencing. This was in light of Cole's guilty plea during trial and the compelling factual basis underlying for that plea set forth in Cole's January 14, 2003 audio-taped statement as well as his attorney-client statements made to me on January 13 and January 14. It was also my professional judgment that the mitigating force of Cole's guilty pleas to exonerate Hunter might very well be forfeited, or at least weakened, by a futile and misguided motion to withdraw his guilty pleas prior to sentencing. Cole agreed with and accepted my counsel in this regard. Therefore, Cole abandoned his request that his guilty pleas be withdrawn. For that reason, I did not inform the Court that Cole wanted to withdraw his plea of guilt before sentencing.
I agree that I "never filed a direct appeal concerning the prosecution misconduct and handling of movant statement(s) concerning the misleading of movant in which movant pleaded guilty under false pretenses. (sic)" Because this involved a guilty plea which constitutes a waiver of direct appeal rights and because the charges in this case against his co-defendant were nol-prossed pursuant to Mr. Cole's understanding, there was no basis for a direct appeal in this case. The rights and remedy for prosecutorial misconduct rested, if at all, in the then-inchoate murder prosecution in which Cole was represented by independent counsel.
8. During the plea colloquy the Court inquired into Cole's intention to plead guilty, the State's sentencing recommendation, and the competency of Mr. Bartley's representation. Cole indicated he was freely and voluntarily pleading guilty, that he was satisfied with Mr. Bartley's representation, and that he understood the sentence he faced. At the conclusion of the plea colloquy, the Court gave Cole the opportunity to ask any final questions.
Q. All right. I'm going to ask you again, because now is your opportunity if you have any questions or any concerns whatsoever about any aspect of your plea, or about anything I've discussed with you, about anything on the form, or any of the ramifications or results that can flow from you pleading guilty, I need you to let me know right now.
A. I have no question.
Q. Do you have any questions for your attorney?
A. No
THE COURT: All right. The Court finds your plea is knowingly, intelligently and voluntarily given, and I will accept it.
January 14, 2003 Plea Colloquy Proceedings, page 20, lines 2-14.
9. Cole was given the same opportunity to speak at sentencing. Again, he said nothing about withdrawing his guilty plea.
March 28, 2003 Sentencing Proceedings, page 26, lines 7-9: "THE COURT: And, Mr. Cole, is there anything else that you wanted to say? MR. COLE: No that's it."
10. Despite numerous opportunities, Cole has never expressed to the Court the desire to withdraw the guilty plea. As he acknowledged by signing the Truth-In-Sentencing Guilty Plea Form, Cole waived his right to appeal to a higher court.
Grosvenor v. State, 2006 WL 1765846 at *1 (Del. 2006) (citing Downer v. State, 543 A.2d 309, 311-12 (Del. 1988)) ("A voluntary guilty plea constitutes a waiver of any alleged defects or errors occurring prior to the entry of the plea.").
11. Applying the Strickland standard, Cole has failed to demonstrate that Mr. Bartley's performance fell below an objective standard of reasonableness. Given this conclusion, the Court need not consider any prejudice to the defendant.
Strickland, 466 U.S. at 697 ("there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
12. Cole's second claim is that his confession was coerced. Cole alleges that "[p]rosecution and defense counsel came together in a persuade [sic] manner of threatening movant to plead guilty to the within offense(s) in which movant now bring's [sic] before this court. Prosecution and defense counsel made deal behind movant back, movant having no knowlegal [sic] of what defense counsel said or did with prosecution whereas counsel support prosecution in getting criminaling [sic] statement(s) from movant to support conviction."
13. This claim is procedurally barred by Superior Court Criminal Rule 61(i)(3), which states that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A) Cause for relief from the procedural default and (B) Prejudice from violation of the movant's rights."
14. As addressed by Mr. Bartley in his affidavit, the decision to plead guilty was made by Cole. His statement to the prosecutor was given against Bartley's advice. After a careful colloquy, the Court found the plea to have been offered knowingly, intelligently and voluntarily. Cole has not shown cause for relief or prejudice. This claim is barred by Rule 61(i)(3).
15. Cole's third claim is prosecutorial misconduct. Cole alleges that "[t]he state misrepresented favorable evidence(s) [sic] that could/would have shown that movant could not have been directly or indirectly involve [sic] in the matter at which is under attack in this motion. Movant has been informed of physical evidence(s) that the state withheld, whereas a fair trial was denied movant."
16. This claim is also procedurally barred by Superior Court Criminal Rule 61(i)(3).
17. Cole fails to identify the physical evidence that he alleges the State withheld. More importantly, Cole specifically admitted his role in the crime in the statement he gave on January 14, 2003, and again at the time of sentencing.
THE COURT: Why did you go there that night? Why did you go to shoot Mr. Malloy?
MR.COLE: It was a robbery.
THE COURT: It was a robbery?
MR. COLE: Yes. And I didn't know whose house we was going to, or nothing, until we got there, until we went inside.
THE COURT: Who shot Mr. Malloy?
MR. COLE: I shot him first in the back.
March 28, 2003 Sentencing Proceedings, page 21, lines 8-16.
18. Again, Cole has not shown cause for relief or prejudice so this claim is also barred by Rule 61(i)(3).
19. The final claim in Cole's Rule 61 motion is another claim of ineffective assistance of counsel. Cole alleges that "[c]ounsel was ineffective by failing to raise incompetency defense, and by failing to file a motion for a competency hearing."
20. Mr. Bartley filed a supplemental affidavit responding specifically to this claim. He states:
During the entire course of my representation of Mr. Cole, he never gave me any indication that there might be an issue concerning his legal competence. Nor did any third party make such a suggestion. I made no observations which would raise a possible issue regarding Mr. Cole's legal competence. I am unaware of any ground that would have warranted exploration of Mr. Cole's legal competence. In my professional opinion, there was no basis to request a competency determination.
July 26, 2007 Supplemental affidavit of Brian J. Bartley in response to defendant's motion for postconviction relief, docket No. 56.
21. Cole's Rule 61 motion fails to provide any basis for why Mr. Bartley should have requested a competency hearing. He simply concludes that Mr. Bartley was ineffective for failing to request such a hearing.
22. Applying the Strickland standard, Cole has failed to demonstrate that Mr. Bartley's performance fell below an objective standard of reasonableness. Given this conclusion, the Court need not consider any prejudice to the defendant.
Strickland, 466 U.S. at 697 ("there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
WHEREFORE, defendant's motion for post-conviction relief is DENIED.
IT IS SO ORDERED.