Opinion
ID 93009252D1
Submitted: August 1, 2000
Decided: December 29, 2000
Motion for Postconviction Relief. Denied.
Timothy Barron, Esquire, Wilmington, Delaware. Attorney for State of Delaware.
Albert Drake, Wilmington, Delaware. Pro se.
ORDER
This 29th day of December, 2000, upon consideration of Defendant's pro se Motion for Postconviction Relief, it appears to the Court that:
1. In October 1994, the Defendant plead guilty to one count of Unlawful Sexual Intercourse in the First Degree and one count of Unlawful Sexual Contact in the Second Degree. After his motion to withdraw his guilty plea was denied, the Defendant was sentenced in November 1995 to a total of twenty-seven years at Supervision Level V, suspended after fifteen years for six months at Supervision Level IV and the balance of the sentence to be served at Level III probation.
State v. Drake, Del. Super., ID 93009252, Carpenter, J. (Nov. 1, 1995)(ORDER).
2. Subsequently, the Defendant appealed to the Supreme Court and his counsel filed a brief and motion to withdraw pursuant to Supreme Court Rule 26(c), asserting no arguably appealable issues. The Defendant raised several issues for the Supreme Court's consideration, and the State moved to affirm the Superior Court's decision. The Supreme Court granted the State's motion on June 13, 1996.
Drake v. State, Del. Supr., No. 490, 1995, Walsh, J. (June 13, 1996)(ORDER).
3. Consequently, the Defendant filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, asserting the following grounds:
(1) The Superior Court lacked jurisdiction over the offense because the jurisdiction of the proper offense was vested in the Family Court;
(2) He unknowingly and unintelligently accepted the plea agreement;
(3) Court prejudice resulted in that the Superior Court misrepresented facts and contradicted statements, which led to an improper review of other courts;
(4) Ineffective assistance of counsel; and
(5) Vindictive prosecution and prosecutorial misconduct.
4. Grounds one, two and three were previously addressed by the Delaware Supreme Court in its Order of June 13, 1996. As such, consideration of these issues are barred under Rule 61(i)(4) unless the Court finds that reconsideration of the claims is warranted in the interest of justice. After reviewing the Defendant's motion, the Court finds that reconsideration is not warranted. These issues have been thoroughly considered by this Court as well as the Delaware Supreme Court, and the Defendant has merely reiterated those same arguments in this motion.
Id.
5. The Defendant's claim regarding vindictive prosecution relates to the decision of the Attorney General to reindict him on this matter after his arraignment and the returning of the original indictment. Although the Supreme Court addressed this issue under a different context of whether the Defendant's plea was entered voluntarily and knowingly, it considered the same underlying claim and found that "the State's dismissal of the original indictment and reindictment of Drake several months prior to his scheduled trial date is not evidence of vindictive prosecution, nor was any prejudice cause to Drake as a result of the reindictment." As such, according to Rule 61(i)(4), the Court finds this claim barred.
See State v. Drake, Del. Super., ID 93009252, Carpenter, J. (Nov. 1, 1995)(ORDER) at 8.
6. The final ground asserted by the Defendant relates to the representation provided to him by his attorneys during the trial and appeal stages of this litigation. The Defendant initially complains about the conduct of Mr. O'Connell, who represented him during his motion to withdraw his plea, sentencing, and subsequent appeal. In essence, the Defendant asserts that Mr. O'Connell's Rule 26(c) motion before the Supreme Court evidences his failure to be an effective advocate regarding obvious appealable issues before the Supreme Court and transformed his counsel to nothing more than an "amicus curiae" in those proceedings. While the Defendant fails to articulate those issues, which he believes the Supreme Court failed to address in its ten page Order, he also perhaps missed the statement of the Court as to their review of the record and the conduct of his counsel. Justice Walsh, writing for the Court, stated:
This Court has reviewed the record carefully and has concluded that Drake's appeal is wholly without merit and devoid of any arguably appealable issue. We also are satisfied that Drake's counsel has made a conscientious effort to examine the record and has properly determined that Drake could not raise a meritorious claim in this appeal.
Drake v. State, Del. Supr., No. 490, 1995, Walsh, J. (June 13, 1996)(ORDER) at 10.
In order to prevail on this claim, the Defendant must show that his counsel's representation fell below an objective standard of reasonableness and that, but for counsel's unprofessional errors, a different result would have been reached. There is simply no basis in the Defendant's summary comments to overcome the previous findings of the Supreme Court or to support an ineffective assistance of counsel claim regarding Mr. O'Connell's representation. As such, the Court finds this ground to be without merit.
Stevenson v. State, Del. Supr., 469 A.2d 797 (1983); Albuty v. State, Del. Super., 551 A.2d 53, 58 (1988) (citing Strickland v. Washington, 466 U.S. 668, 694 (1984)).
7. Finally, the Defendant's ineffective assistance of counsel claim relates to the conduct of his trial counsel, Mr. Otlowski. In both the initial Rule 61 motion, as well as the subsequent supplemental pleading, the Defendant makes general assertions of ineffectiveness relating to his counsel's failure to "raise jurisdictional issues, equal protection issues, arraignment/arrest issues, discovery, prejudicial trial date, challenge the new indictment, lying to the defendant . . . and states vacillation between so many different charges to name a few." The Defendant provides no support for any of these assertions, and even if they did occur, they were waived by the Defendant as a result of his guilty plea.
The Defendant was allowed to supplement his petition based upon an assertion that he did not have sufficient time to set forth his ineffective assistance claim.
The final argument made by the Defendant is that he had an affirmative defense as to the Unlawful Sexual Intercourse charge under 11 Del. C. § 441, which, if pursued by counsel, would have resulted in his acquittal or conviction of the lesser offense of Incest. The Defendant argues that he engaged in sexual conduct with his daughter under ignorance or mistake of fact that his parental relationship was synonymous with the statutory term, voluntary social companion. Since the indicted Unlawful Sexual Intercourse First Degree offenses charged him with engaging in this conduct, not as his daughter's voluntary social companion, his ignorance of this legal fact would have negated the required state of mind. The Defendant's argument is flawed for several reasons. First, the required state of mind for Unlawful Sexual Intercourse is intentional and relates to the Defendant engaging in sexual intercourse, not his social companion status. Secondly, the definition of "voluntary social companion" found in 11 Del. C. § 761(h) specifically states that when the victim is less than sixteen (16) years of age at the time of the offense, she cannot be a social companion of one in whose custody and care she is placed. Therefore, instead of being synonymous with voluntary social companion, his parental status excludes him from meeting the definition since his daughter was less than sixteen (16) when the offense occurred. Finally, it is repugnant to any meaningful interpretation of the Unlawful Sexual Intercourse statutes to believe that the Defendant's status as a parent provides him greater rights and latitude to sexually abuse his daughter. The Defendant may believe these acts were a internal family matter upon which the authorities have inappropriately interfered but neither the law or this Court will ever support his warped contention. The Court finds this final argument to also be without merit and would have had no bearing on the outcome of this litigation. The Defendant has failed to demonstrate the Strickland requirements necessary to support an ineffective assistance claim.
Strickland, supra. at note 6.
8. In conclusion, for the reasons set forth above, the Rule 61 motion filed by the Defendant is hereby DENIED.
IT IS SO ORDERED.