Opinion
I.D. No. 0112019129
Submitted: December 4, 2002
Decided: March 14, 2003
UPON DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF DENIED. Cr.A.#ID IN02-01-1283, 1284, 1289 PN02-01-1277, 1278
James J. Davis, Wilmington, Delaware, Pro Se, Defendant.
R. David Favata, Esquire, Deputy Attorney General, New Castle County, State of Delaware, Attorney for the State of Delaware.
ORDER
James J. Davis ("Defendant") has filed this pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, wherein he seeks to set aside a judgment of criminal conviction based on a violation of his rights. For the reasons stated below, Defendant's motion is DENIED.
Statement of Facts
On May 6, 2002, Defendant entered into a plea agreement whereby, in exchange for all of the remaining charges against him being nolle prossed by the State, Defendant plead guilty to two (2) counts of Robbery First Degree in violation of Title 11 Del. C. § 832, two (2) counts of Possession of a Deadly Weapon During the Commission of a Felony (lesser included offense) in violation of 11 Del. C. § 1447, and Burglary First Degree in violation of 11 Del. C. § 826. For each of the criminal acts of Robbery First Degree, the Court sentenced Defendant to two years at Level V. For each of the Possession of a Deadly Weapon During the Commission of a Felony charges, the Court sentenced Defendant to two years at Level V. Finally, for the charge of Burglary First Degree the Court imposed a sentence of five years at Level V, suspended for five years at Level IV, suspended after serving six months at Level III, suspended after two years at Level II.
On January 28, 2002, Defendant was indicted by the Grand Jury and charged with seven (7) counts of Possession of a Firearm During the Commission of a Felony in violation of 11 Del. C. § 1447; three (3) counts of Robbery First Degree in violation of 11 Del. C. § 832; four (4) counts of Attempted Robbery First Degree in violation of 11 Del. C. § 531; Burglary First Degree in violation of 11 Del. C. § 826; Assault Second Degree in violation of 11 Del. C. § 612(a)(2); Wearing a Disguise During the Commission of a Felony in violation of 11 Del. C. § 1239; and Conspiracy Second Degree in violation of 11 Del. C. § 512.
Defendant did not appeal his conviction or sentence to the Delaware Supreme Court. Instead, on December 4, 2002, Defendant filed a Motion for Reduction/Modification of Sentence. Defendant's Motion was denied on December 30, 2002 because the sentences imposed with respect to Robbery First Degree and Possession of a Deadly Weapon During the Commission of a Felony are mandatory and cannot be reduced or suspended.
Defendant's Contentions
Defendant filed the instant motion for postconviction relief on December 4, 2002, wherein he states the following three grounds for relief: 1) that his sentence was outside the Truth-In-Sentencing guidelines; 2) that his guilty plea was coerced; and 3) that his plea agreement was not fulfilled.
As will be discussed more fully, Defendant has failed to demonstrate the existence of a procedural default pursuant to Rule 61(i)(3), which requires a showing of a "cause for relief" from the procedural default and a showing of "prejudice" from a violation of his rights. The motion thus fails on procedural and substantive grounds.
Super.Ct.Crim.R. 61(i)(3) (emphasis added).
Discussion
Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, Del. Super. C.A. No. IN90-05-1017, Barron, J. (Dec. 28, 1995) (Mem. Op.) (citing Younger, 580 A.2d at 554 (Del. 1990)).
Pursuant to this Rule, claims for relief must be brought within three years of the conviction becoming final. Super.Ct.Crim.R. 61(i)(1) more fully provides:
A motion for postconviction relief may not be filed more than three years 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 three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Super.Ct.Crim.R. 61(i)(1).
As Defendant did not take a direct appeal from his conviction, his conviction became final 30 days after his sentence was imposed on September 6, 2002. Defendant filed the instant motion approximately three months after his conviction became final thus avoiding the bar of Rule 61(i)(1). As this is Defendant's initial motion for postconviction relief, the bar of Rule 61(i)(2), which precludes consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
Rule 61(i)(3) contains another bar, that provides that "any ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default, and (B) [p]rejudice from violation of the movant's rights." Defendant's claim was not raised at the plea, sentencing, or on direct appeal, and thus Rule 61(i)(3) bars it, absent a demonstration of cause for relief from the default and prejudice. Defendant's contentions are based on a violation of Truth-in-Sentencing guidelines, a coerced guilty plea and an unfulfilled plea agreement. He has not alleged cause for his failure to have raised these issues on direct appeal. They are, therefore, procedurally barred pursuant to Rule 61(i)(3) and should be dismissed.
Super.Ct.Crim.R. 61(i)(3) (emphasis added).
Rule 61(i)(4) provides that "[a]ny 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 consideration of the claim is warranted in the interest of justice." The "interest of justice" exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial Court lacked the authority to convict or punish [the movant]." Invoking the "interest of justice" provision of Rule 61(i)(4) is incumbent on obtaining relitigation of a previously resolved claim whereby the movant must show that subsequent legal developments have revealed that the trial court lacked the aforementioned authority to convict or punish. Further, "[d]ifferent policy interests underlie Rules 61(i)(4) and (i)(5). While Rule 61(i)(4) allows for consideration of certain issues which have been previously litigated `in the interest of justice,' Rule 61(i)(5) provides for postconviction consideration of issues which have not been previously litigated and may entail a `miscarriage of justice.'" Defendant's grounds for relief — that the sentence was outside the Truth-In-Sentencing guidelines, the guilty plea was coerced, and the plea agreement was not fulfilled — were not formerly adjudicated. Therefore, Rule 61(i)(4) is similarly inapplicable and acts as a bar to Defendant's claim for relief.
Super.Ct.Crim.R. 61(i)(4).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
Flamer v. State, 585 A.2d 736, 746 (Del. 1990) (citing comparatively Davis v. United States, 417 U.S. 333, 342 (1974)).
State v. Rosa, 1992 WL 302295, at *7 (Del.Super.).
Lastly, the procedural bars of Rule 61 may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraphs (1), (2), and (3) shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." In that respect, the "miscarriage of justice" exception is not limited to a claim that an innocent person has been convicted and applying only when a petitioner can make a colorable claim to factual innocence. This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him. Defendant's claim does not entail a right relied upon that has been recognized for the first time after a direct appeal. Nor does Defendant's claim of coerced guilty plea, i.e., an ineffective waiver of his right to trial, to testify, to present evidence, etc., rise to the level of satisfying the "miscarriage of justice" exception of Rule 61(i)(5) as there is simply no concrete basis or proof to support such a claim.
Super.Ct.Crim.R. 61(i)(5).
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Id.
Id. (citing comparatively Younger v. State, 580 A.2d 552, 555 (Del. 1990) (fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows he was deprived of a substantial constitutional right).
Accordingly, Defendant's only potential means of relief is to proceed under Rule 61(i)(3). Turning to the substantive contentions in Defendant's motion, he states that his sentence was outside of the Truth-in-Sentencing guidelines. In support of this assertion, Defendant states that the, "[l]egislative intent with respect to looking at a person's criminal record at the time of sentencing for increased penalties does not mean that the statute of limitation for such offense can be overlooked to allow sentencing outside of T.I.S. guidelines." Defendant's argument misses the point. His sentence did not involve increased penalties or consideration of the statute of limitations. Defendant was sentenced to the mandatory incarceration periods for his offenses as mandated by Delaware law. Further, each of the sentences imposed on Defendant were within the Truth-In-Sentencing guidelines. In Defendant's case, there were no enhanced penalties. Only the statutory minimum mandatory sentences prescribed for Robbery First Degree and Possession of a Deadly Weapon During the Commission of a Felony, i.e., two years each, were imposed. Hence, Defendant's claim fails as to ground one as he has no cause for relief under Rule 61(i)(3)(A). Since there is no cause for relief, the Court need not evaluate whether the Defendant suffered prejudice from violation of his rights pursuant to Rule 61(i)(3)(B).
In this same light, Defendant claims in his third ground for relief that his, "[p]lea agreement was not fulfilled when sentence exceeded the amount of time given, No Prior Record [sic], First Time [sic] in trouble with the state [sic]." The Court sentenced Defendant according to the Rule 11(e)(1)(c) plea agreement which clearly enumerated the charges to which the Defendant would plead guilty in exchange for dismissal of the remaining charges in the indictment. The fact that the Defendant was a first-time offender is irrelevant as the sentences imposed are mandatory under Delaware law. Defendant fails once again to show cause for relief pursuant to Rule 61(i)(3)(A) and therefore, the Court need not consider the second "prejudice" prong contained in (61)(i)(3)(B).
Finally, to the extent that the Defendant avers a coerced guilty plea in his second ground for relief, the record clearly contradicts his allegations. Defendant asserts that, "[P]rosecution and Defense Counsel [sic] led defendant to believe that he would be receiving a sentence for Possession [sic] Deadly Weapon During Commission of [sic] Felony within T.I.S. guidelines." The basis for the entry of a guilty plea must appear on the record to permit appellate review. In considering the proper procedures that are a condition precedent for the Court to accept a guilty plea, this Court has held that a "rigid, formalistic approach to compliance" is not necessary. Numerous safeguards are afforded to the defendant offering a guilty plea. Prior to accepting a guilty plea, the trial judge must address the defendant in open court. The judge must determine that the defendant understands the nature of the charges and the penalties provided for each of the offenses. The record must reflect that the defendant understands that the guilty plea constitutes a waiver of a trial on the charges and a waiver of the constitutional rights to which he would have been entitled to exercise at trial. The trial judge must also determine that a guilty plea is not the result of force, threats, or promises apart from the plea agreement, i.e., that it is voluntary.
Sullivan v. State, 636 A.2d 931, 937 (Del. 1994).
Patterson v. State, 684 A.2d 1234, 1237 (Del. 1996).
Sullivan, 636 A.2d at 937.
Id.
Id. (citing Super.Ct.Crim.R. 11(c)).
Id. (citing Super.Ct.Crim.R. 11(d)); Howard v. State, 458 A.2d 1180, 1184-85 (Del. 1983).
In this case, the record reflects that the Defendant indicated on the Truth-In-Sentencing Guilty Plea Questionnaire that he understood that the statutory penalty for Robbery First Degree was two to twenty years incarceration and that the T.I.S. guideline was two to five years incarceration at Level 5; that the statutory penalty for Possession of a Dangerous Weapon During the Commission of a Felony was two to twenty years incarceration and that the T.I.S. guideline was two to five years incarceration at Level 5; and that the statutory penalty for Burglary First Degree was zero to ten years incarceration and that the T.I.S. guideline was three 10 months incarceration at Level 5. Further, the Truth-In-Sentencing Guilty Plea Questionnaire indicated that the crimes carried a total minimum mandatory penalty of eight years. Defendant acknowledged his awareness of this fact by checking the "yes" block next to this statement. Further, during the guilty plea colloquy, the Defendant acknowledged to the Court that he had read and understood the Truth-In-Sentencing Guilty Plea Questionnaire, discussed the matter fully with his attorney, and was satisfied with his attorney's representation.
In addition to his written acknowledgement, the Court advised the Defendant verbally during the plea colloquy that the statutory penalty provided for a minimum mandatory incarceration of eight years. At the same time, the Defendant acknowledged to the Court that the plea agreement was the entire agreement between himself and the prosecution. The Defendant further denied that anyone had threatened or forced him to plead guilty nor was he promised anything to induce his guilty plea. With or without the witness oath, a defendant's statements to the Court during the guilty plea colloquy are presumed to be truthful. Those contemporaneous representations by a defendant pose a "formidable barrier in any subsequent collateral proceedings." Defendant now contends that at the time he entered into the plea agreement, his attorney and the prosecution led him to believe that he would be receiving a lesser sentence pursuant to the T.I.S. guidelines. The record reflects that Defendant acknowledged that his plea agreement contained the entire agreement with the prosecution. There is no indication on the plea agreement that any promises had been made regarding Defendant's sentence nor did Defendant acknowledge the existence of any promises on the agreement. In the absence of clear and convincing evidence to the contrary, Defendant is bound by his answers on the Truth-In-Sentencing Guilty Plea Questionnaire and by his sworn testimony prior to the acceptance of the guilty plea. Once again, Defendant has failed to substantiate a showing of cause for relief and the Court need not address the potential for prejudice pursuant to Rule 61(i)(3)(A) and (B).
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).
Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985) (quoting Blackledge v. Allison, 431 U.S. 63, 73 (1977)).
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); cf. Patterson v. State, 684 A.2d 1234, 1238 (Del. 1996).
Conclusion
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is procedurally barred under 61(i)(3) and is hereby DENIED.
IT IS SO ORDERED.