Opinion
ID. No. 0511017020.
Submitted: July 2, 2009.
Decided: August 4, 2009.
Upon Defendant's Motion for Postconviction Relief.
DENIED.James T. Wakley, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State.
Jerome M. Capone, Law Office of Jerome M. Capone, Wilmington, Delaware, Attorney for Defendant.
ORDER
This 4th day of August 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On November 30, 2006, a jury convicted Defendant on one count of Rape Second Degree, three counts of Sexual Exploitation of a Child, three counts of Sexual Solicitation of a Child, and three counts of Possession of Child Pornography. The Court sentenced Defendant to 16 years at Level 5 followed by probation.
2. Defendant filed a direct appeal to the Delaware Supreme Court, alleging that the State violated his speedy trial rights. Defendant, however, only challenged his rape conviction. The Supreme Court noted that:
Most speedy trial violations result in dismissal of an indictment. Dabney, however, claims only that the delays in prosecuting the Rape Second Degree charges prejudiced him and claims no prejudice from the delayed prosecution of the balance of the charges. Counsel confirmed this remarkable position at oral argument on appeal.
Dabney v. State, 953 A.2d 159 (Del. 2008).
After concluding that the State caused an "unnecessary and prejudicial delay" in Defendant's case going to trial, the Supreme Court reversed Defendant's rape conviction and remanded the case to this Court for resentencing.
Id.
3. On remand, this Court sentenced Defendant to 12 years at Level 5 followed by probation. Defendant appealed his sentence and the Supreme Court affirmed.
Dabney v. State, 2009 WL 189049 (Del. Supr).
4. Defendant's motion for postconviction relief seeks to vacate his remaining convictions on the ground that his counsel was ineffective by limiting his speedy-trial claim on appeal to the rape conviction. To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Failure to satisfy one prong will render the claim unsuccessful and the court need not address the remaining prong. Moreover, the "court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Id. at 689.
5. Defendant fails to demonstrate that his counsel did not act reasonably because it was Defendant's decision to only appeal the rape conviction. As defense counsel stated at Defendant's resentencing, "Mr. Dabney instructed me as his attorney to seek only the reversal of the one offense for which he believes he did not commit."
May 16, 2008 Resentencing Tr. at 8.
6. As the United States Supreme Court has noted, the Sixth Amendment "speaks of the `assistance' of counsel, and an assistant, however expert, is still an assistant." The accused has the "ultimate authority" to make the certain fundamental decisions regarding the case, including whether take an appeal. It therefore follows that "a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." 7. It is clear from the two sentencing transcripts in this case that Defendant admitted to his actions, except for the rape, and sought to take responsibility for those actions. At his first sentencing, defense counsel stated: "I do want to emphasi[ze] to the Court that my client has always been remorseful for this . . . The only thing that he has contested is [whether] there was, in fact, penetration." At his second sentencing Defendant told the sentencing judge that "I've always from the beginning admitted to what I have done. I just wanted to be held responsible for what I did do [and] get treatment for what I have done; I feel justice has been served."
Faretta v. California, 422 U.S. 806 (1975) (holding that the trial court deprived the defendant of his constitutional right to conduct his own defense by forcing the defendant to accept against his will a state-appointed public defender).
Jones v. Barnes, 463 U.S 745, 751 (1983). See also Cooke v. State, 2009 WL 2181678 (Del.Supr.) (stating that "the defendant has autonomy to make the most basic decisions affecting his case" and that "[a]lthough these fundamental decisions are indeed strategic choices that counsel might be better able to make, because the consequences of them are the defendant's alone, they are too important to be made by anyone else").
Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Jones, 436 U.S. at 751).
February 16, 2007 Sentencing Tr. at 3.
May 16, 2008 Resentencing Tr. at 14.
8. Given that it was Defendant's decision to only appeal the rape conviction (apparently because as to the other charges he felt remorseful and thought he should be justly punished), he cannot now claim that his counsel was ineffective for failing to appeal his other convictions. Defense counsel's "role as advocate requires that he support his client's appeal to the best of his ability." That is precisely what defense counsel did in this case.
Anders v. California, 386 U.S. 738, 744 (1983).
9. Therefore, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.