Opinion
ID No. 0603002912.
Date Submitted: January 4, 2008.
January 16, 2008.
John W. Cooper, Jr., SBI#, Smyrna, DE.
Dear Mr. Cooper:
Pending before the Court is a motion for postconviction relief which defendant John W. Cooper, Jr. ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). This is my decision denying the pending motion.
On or about March 5, 2006, defendant was arrested for sexual crimes committed against his daughter after he called the police in order to confess to the crimes. Thereafter, the Grand Jury indicted defendant on eight counts of rape in the first degree, eight counts of unlawful sexual contact in the second degree, and one count of continuous sexual abuse of a child.
On August 23, 2006, defendant pled guilty to a charge of rape in the third degree, a lesser included offense of count one, rape in the first degree, and he pled guilty to the charge of continuous sexual abuse of a child.
The plea agreement, which defendant signed, set forth the terms and conditions of the plea and the potential sentences on each charge.
In the Truth-In-Sentencing Guilty Plea Form ("TIS Form"), which defendant signed,
defendant answered, "Yes", to the following:
Do you understand that because you are pleading guilty you will not have a trial, and you therefore waive (give up) your 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 jury;
(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?
Defendant affirmed in the TIS Form that he was satisfied with his lawyer's representation of him, that he was satisfied that his lawyer had fully advised him of his rights and his guilty plea, that he had read and understood all the information contained in the form, and that he freely and voluntarily had decided to enter the plea. He answered, "No" to the questions of whether anyone had promised him what he sentence would be and whether his attorney or anyone had threatened or forced him to enter this plea.
Pertinent portions of the plea colloquy are set forth below.
Trial counsel summarized the case's history:
[TRIAL COUNSEL]: ***
I can indicate to the Court that Mr. Cooper went into the police department and admitted to the police department that he had committed this offense, these, several years ago. As a result of his admissions, the State began their investigation, also made contact with the family, did the interviews, and verified the information that was provided to the police by Mr. Cooper.
Transcript of August 23, 2006, Proceedings at 3-4.
The colloquy between the Court and defendant followed:
THE COURT: What your lawyer shared with me, was it accurate?
THE DEFENDANT, Yes, sir.
THE COURT: Did you disagree with anything your lawyer had to share with me?
THE DEFENDANT: No, sir.
THE COURT: Have you had enough time to go over your case with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the representation you have received from your lawyer?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any complaints with the representation at all?
THE DEFENDANT: No, sir.
THE COURT: I ask people this, sir. Are you able to read?
THE DEFENDANT: Yes, I am.
THE COURT: I have the plea agreement, the truth-in-sentencing guilty plea form, and immediate sentencing form, did you read and sign these forms?
THE DEFENDANT: Yes, I did.
THE COURT: Did your lawyer explain the information in these forms to you?
THE DEFENDANT: Yes, he did.
THE COURT: The checkmarks on this guilty plea form, are these your checkmarks?
THE DEFENDANT: Yes, they are.
THE COURT: Is the information provided truthful and accurate?
THE DEFENDANT: It's truthful, yes, sir.
THE COURT: Nobody can force you to plead guilty because when you plead guilty, you incriminate yourself; do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: You are presumed innocent. The State is required to prove the State's case against you beyond a reasonable doubt; do you understand that?
THE DEFENDANT: Yes, I do.
THE COURT: You have the right to a speedy trial and a public trial; do you understand that?
THE DEFENDANT: Yes.
THE COURT: You have the right to trial by jury; do you understand that?
THE DEFENDANT: Yes, sir, I do.
THE COURT: You have the right to hear and question the witnesses against you; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You have the right to present evidence on your behalf; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You have no obligation to present evidence. The State has the obligation to prove guilt beyond a reasonable doubt; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: You have every legal and moral right to remain silent and require the State to make its case against you beyond a reasonable doubt; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Of course, you can present evidence on your behalf; do you understand that?
THE DEFENDANT: Yes, I do.
THE COU RT: You can t est ify or not te stify. It `s up to you. If you didn't tes tify, the jury will be told not to take it against you; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: If you had a bad day and lost, you could appeal to the Supreme Court and ask the Court to reverse it; do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: It is your desire and free choice to give up all of these rights and say: Yes, I committed the crime in Count 1 of rape in the third degree, and yes, I committed the crime of continuous sexual abuse of a child in Count 17?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did your lawyer explain the nature of the crimes of rape in the third degree and continuous sexual abuse of a child?
THE DEFENDANT: Yes, he did.
THE COURT: Did your lawyer review the evidence with you?
THE DEFENDANT: Yes, sir.
***
THE COURT: Drawing your attention to Court 1, sir, do you admit, in fact, you committed the lesser-included offense of rape in the third degree in Count 1?
THE DEFENDANT: Yes, sir.
THE COURT: Drawing your attention to Count 17, do you admit, sir, you committed the charged offense of continuous sexual abuse of a child.
THE DEFENDANT: Yes, sir.
Transcript of August 23, 2006, Proceedings at 5-13.
On the rape in the third degree conviction, the Court sentenced defendant to 15 years at Level 5, and after serving five years at Level 5 (the first two years of which are a minimum sentence) and upon successful completion of the Family Problems Program, the balance is suspended for probation. On the continuous sexual abuse of a child conviction, the Court sentenced defendant to two years at Level 5, which is a minimum mandatory sentence.
Defendant did not appeal therefrom. On August 2, 2007, he filed the pending motion for postconviction relief. In that motion, he asserts trial counsel was ineffective in two ways.
First, defendant maintains trial counsel misrepresented the facts to him in order to induce him into entering a plea of guilty to rape in the third degree. In support of this contention, he advances the following.
When he talked with the police, he told them he had had sexual contact with his daughter two years before. The police asked if he touched her and had oral sex with her. Defendant replied he thought so but was not sure of all the details because he was abusing drugs and the facts were foggy. His daughter was interviewed; she said the incident happened five years before and she did not recall any oral sex. Defendant felt reassured that the only offense that occurred was unlawful sexual contact. The morning of his case review, trial counsel discussed the plea offer with him. Defendant asked why he was being charged with rape since his daughter's statement was that she did not recall oral sex having occurred. The trial attorney told him that in an interview of the daughter within the preceding week, she had changed her account of what happened, stating that oral sex did occur. The defendant relied on this statement when he pled guilty to rape in the third degree. Several months later, defendant discussed the scenario with his mother and he learned then that there never was an additional interview nor did his daughter make such a statement.
In the Affidavit of Probable Cause, the investigating officer avers defendant stated "that the molestation involved everything except intercourse." Furthermore, defendant "advised . . . he performed cunnilingus on his daughter 8-10 times and that he touched her vagina with his hand 8-10 times."
Again, in the Affidavit of Probable Cause, the investigating officer reported:
On 03/05/2006, the victim . . . was interviewed at the Sussex County Child Advocacy Center. She was emotionally distraught. She recalled about ten occurrences when the accused touched her vagina both on top and beneath her clothes. She did not recall cunnilingus but stated she was trying to block out the incidents and that it was possible.
In support of the assertion that there never was an additional interview or that his daughter never made such a statement, he submitted two affidavits. The first is his own affidavit. In that affidavit, he states that he has had conversations with his mother and sister and they have had regular contact with the victim and the victim's mother. He and his mother learned that there was no additional interview and the victim did not change her account of what happened. He asserts either his attorney or the prosecutor lied. He then maintains:
I think it is very wrong for the prosecution or public defender to lie to me about what occurred so I would agree to a plea bargain for a crime they know I didn't commit. Therefore I ask that the plea I entered into because of the misrepresentation of material facts be set aside.
His mother also submitted an affidavit in support of this motion. In that affidavit, she states as follows:
I asked him why he accepted a rape charge when that didn't happen. He told me that the public defender said there were subsequent interviews in which my grand daughter changed her story. When I asked [the victim's mother] about this she told me that she had stopped the interviews because they were not trying to help [the victim] they were trying to make a case against my son. She also said that oral sex was not something he did as he really didn't like it, so she couldn't figure out why he would say that he did something like that.
The Court required trial counsel to submit an affidavit regarding these allegations. Therein, trial counsel states as follows:
On March 5, 2006, at approximately 6:10 a.m., Sgt. Hudson of the Delaware State Police interviewed Mr. Cooper. This interview was audio recorded. After explaining his Miranda warnings, Mr. Cooper admitted that while at a residence in Shady Acres Mobile Home Park (located in Laurel, Delaware) he licked his daughter's vagina 8 to 10 times and that he touched her vagina with his hands 8 to 10 times.
On March 5, 2006, the victim was interviewed at the Child Advocacy Center. During that interview, the victim stated that Mr. Cooper had touched her vagina both over her clothing and under clothing a great number of times. She did deny that the Defendant ever performed cunnilingus on her.
In reviewing the tape of this interview, it is very obvious that the victim became very emotional at the questioning about the contact and the alleged cunnilingus.
As a result of the Defendant's statements and the CAC interview with the Victim, the Defendant was arrested on 8 counts of Rape in the First Degree, that is, performing cunnilingus on the victim between January 1, 2001 and October 1, 2006. He was also charged with 8 counts of unlawful sexual contact, that is, placing his hand on her vagina, during the same time period.
***
Counsel for the Defendant is aware that the victim participated in seven or eight further forensic interviews concerning this matter. That during these interviews the victim continued to demonstrate considerable emotional difficulties in discussing this matter.
At the time of the final case review, DAG Adam Gelof advised that during his interviews with the victim, she acknowledged the Defendant performed cunnilingus on her during this time period.
***
With respect to Ground One: Misrepresentation of Material Facts. I believe that Mr. Cooper is referring to my conversation with him on the date of the final case review. On that morning, Mr. Dowling, our psycho-forensic evaluator, and I met with Mr. Cooper. I relayed to him my conversation with Mr. Gelof. In that conversation, Mr. Gelof, stated that during his conversations with the victim, she told him about the cunnilingus that had occurred during the time frame. I don't believe she "changed her account of what happened stating that oral sex did not occur" but added to her first account.
In this case, the Defendant called the police and confessed to having had sexual contact with his daughter and having performed cunnilingus on her a number of times. The victim admitted that the Defendant had had sexual contact with her during the same period of time. I believe the experts that interviewed the victim on a number of occasions would have testified to the victim's state of mind during the initial CAC interview and subsequent interviews. I believe they would have testified that the victim had tried to block these memories and that she did not want to recall these incidents. After some period of time and working with the counselors, she became more comfortable in discussing these issues.
Defendant alleges as his second ground of ineffective assistance of counsel that trial counsel failed to file a motion to suppress in light of defendant's "drugged condition he was in and the vagueness of his statements that were made only by the prompting of the officer conducting the interview."
In his affidavit, trial counsel provides the following information in response to this allegation:
[O]n March 5, 2006, at approximately 3:10 in the morning, Tpr. Stock of the Delaware State Police responded to a Delmar, Delaware, residence in response to a Domestic disturbance. Mr. Cooper told Tpr. Stock that he had taken two ecstasy pills at approximately 8:45 pm and that the pills effects were causing him to tell the truth. Tpr. Stock wrote in his report that Mr. Cooper admitted molesting his daughter about 2 years before. That he "had done everything to her except having sex with her". Mr. Cooper stated that "he had fingered her and that he had licked her in her area".
Tpr. Stock wrote that he contacted the on call physician at Nanticoke Memorial Hospital and was told that enough time had elapsed from the time Mr. Cooper took the pills until the time of the call and the officer did not have to take him to the hospital.
On March 5, 2006, at approximately 6:10 am, Sgt. Hudson of the Delaware State Police interviewed Mr. Cooper. This interview was audio recorded. After explaining his Miranda warnings, Mr. Cooper admitted that while at a residence in Shady Acres Mobile Home Park (located in Laurel, Delaware) he licked his daughter's vagina 8 to 10 times and that he touched her vagina with his hands 8 to 10 times.
***
As indicated above, there were two interviews. One at 3:10 am and one at 6:10 am. In listening to the taped interview at 6:10 am, I did not think that the Defendant was in any way under the influence of drugs or alcohol. His conversation with the officer was similar in manner to his conversations with me.
The first interview was the result of the Defendant calling the police and volunteering the information to them. The second interview was the result of the Defendant's first interview. The only "prompting" by the officer was in asking what the Defendant did to his daughter that "was everything except having sex with her". Based upon what I heard, I did not see any grounds to suppress the statement based upon any "drugged condition" of the Defendant nor any impermissible questioning by the officers.
The first step this Court takes in addressing this Rule 61 motion is to determine if the claims defendant advances therein may proceed or if they are procedurally barred.
In the version of Rule 61(i) which applies to defendant's case, it is provided as follows:
Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than one year after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any 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.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Defendant's motion is timely filed. Super. Ct. Crim. R. 61(i)(1).
A claim for ineffective assistance of counsel is not heard on direct appeal. Desmond v. State, 654 A.2d 821 (Del. 1994). Thus, the ineffective assistance of counsel claims are not procedurally barred since the first time defendant could raise them is by way of this Rule 61 motion.
As the Supreme Court recently explained in Cannon v. State, Del. Supr., No. 20, 2007, Steele, J. (Aug. 2, 2007) at 2: "In order to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, a defendant must demonstrate that, but for counsel's unprofessional errors, he would not have pleaded guilty, but would have insisted on proceeding to trial."
Defendant's first claim is that the factual misrepresentations of his trial counsel produced a coerced plea. However, as the recitation of the facts set forth above show, there were no misrepresentations. The prosecutor interviewed the victim and she admitted to him that cunnilingus occurred. The prosecutor then informed trial counsel about the victim's affirmation of the cunnilingus and trial counsel told defendant that the victim had affirmed defendant's previous confessions. Defendant's recitation of hearsay within hearsay does not address the prosecutor's interview with the victim. Instead, it focuses on the CAC interviews. Thus, there are no facts to support defendant's contention there was a misrepresentation.
The Court has not provided defendant with the opportunity to comment upon trial counsel's affidavit because defendant's original contentions do not address the prosecutor's interview with the victim. To provide him time and opportunity to comment would be a waste of time and resources. For the same reason, no need exists to hold a hearing. The pertinent facts are not in dispute.
In this case, defendant admitted to the crimes charged. The plea itself and the circumstances under which it was taken established the factual basis for the plea. Frady v. State, 765 A.2d 951 (Del. 2000);Evans v. State, 765 A.2d 951 (Del. 2000); Raison v. State, 469 A.2d 424, 426 (Del. 1983). Absent clear and convincing evidence to the contrary, defendant is bound by his answers on the plea form and sworn testimony given during the colloquy. Cannon v. State, supra at 3; Artis v. State, 782 A.2d 262 (Del. 2001). Defendant has presented absolutely nothing to dispute the facts that he committed the crimes to which he pled guilty or that his plea was anything other than voluntary. Thus, defendant's first claim fails.
Defendant's second argument concerns the filing of a motion to suppress.
As explained in State v. Powell, Del. Super., Def. ID# 0111014286, Gebelein, J. (Jan. 10, 2003):
Generally, by pleading guilty, a defendant waives his right to challenge the sufficiency of the evidence against him and, therefore, Defendant would be deemed to have waived his right to challenge the admissibility of evidence or sufficiency of a search warrant. However, a defendant's plea of guilty does not waive his right to argue that his decision to enter the plea was not knowing or voluntary because it was the result of ineffective assistance of counsel. [Footnotes and citations omitted.]
Being under the influence in and of itself does not render invalid an otherwise valid waiver of rights. Virdin v. State, 780 A.2d 1024, 1033 (Del. 2001). In this case, trial counsel reviewed the facts, examined the evidence, considered the law, and determined there was no basis for filing a motion to suppress. Trial counsel's actions were reasonable.
Again, no point exists to allow defendant to comment on trial counsel's affidavit. Defendant could not add anything to trial counsel's explanation of his decision. For the same reason, no need exists to hold an evidentiary hearing on the matter.
Even if trial counsel's actions were deemed unreasonable, defendant has failed to establish the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984). He has not shown that had he filed the motion to suppress, he would have succeeded, State v. Levan, Del. Super., Def. ID# 0701002735, Graves, J. (April 20, 2007), and even though successful, he would not have entered the plea, Cannon v. State, supra at 2.
Defendant's second claim of ineffective assistance of counsel also fails for the foregoing reasons.
For the reasons stated above, defendant's motion for postconviction relief is denied.
IT IS SO ORDERED.