Opinion
ID No. 0404010466B.
October 23, 2007.
N440 State Mail, Richard Dukes, Delaware Correctional Center, Smyrna, DE.
Dear Mr. Dukes:
On June 26, 2007, you filed a Motion for Postconviction Relief. It was your first motion and it was timely filed within three years of your conviction and sentence on August 24, 2004.
On July 3, 2007, you filed another Motion for Postconviction Relief expanding on your first Motion. On July 26, 2007, you filed yet another Postconviction Motion expanding on the first two motions. Therefore, the Court will address the final motion which alleges 26 separate grounds. I have used the memorandum to discuss the allegations. In other words, the grounds are addressed by the number assigned in your memorandum because your numbering in regard to the claims in this Motion do not match up with the memorandum. At various times I refer to you as the "Defendant".
BACKGROUND
You were convicted of a burglary and have been violated on same several times (Case No. 9803018238/VS98-0-4-0157).
You picked up new charges in 2004. These included misdemeanor drug charges and a charge of possession of a deadly weapon by a person prohibited based upon your burglary conviction.
In the meantime, you were found in violation of the burglary probation. It was your fifth violation of probation. Sentencing was deferred until resolution of the aforementioned weapons offense.
Severance of the weapons charge was granted upon motion by the defense. The weapons charge, being the more serious, was set down for trial first.
Prior to trial on the weapons offense, the Defendant elected to represent himself.
On August 24, 2007, the Defendant was convicted of the weapons offense and sentenced on both the burglary violation of probation and the weapons offense. In accordance with SB 50, as to the burglary, he was given credit for 163 days previously served and discharged as unimproved.
As to the weapons offense, which is the subject of the present Postconviction Motion, he received five years, which would be suspended upon completion of the Key Program for Level 4 CREST, followed by Level 3 probation. The Defendant chose not to participate in the Key Program by his own choice and/or misconduct. He remains incarcerated.
Before moving to the postconviction allegations, the Court will address Defendant's request that this Judge recuse himself from his case. The Defendant complains that the Court predetermined his sentence. This allegation is based upon comments made at his Track 1 Fast Track hearing on May 18, 2004. After finding the Defendant guilty of his fifth violation of probation, I deferred sentencing until the felony weapons charge was resolved and stated the following:
Basically, if the new charges are resolved in his favor, I'm going to enter an order for short-term Key. If they are not resolved in his favor, then it will be long-term Key. It is a matter of time.
On May 18, 2004 when I made this comment, you were facing up to two years in jail. You had just been violated and my comments were in response to your attorney's inquiry. With your history of violations and the TASC recommendation, this observation was not improper. They were made upon the adjudication of your guilt as to the burglary probation violation. The jury determined your guilt as to the weapons offense. There is no basis for recusal based upon the May 18, 2004 comments.
Nor is there a basis for recusal arising from the Court's refusal to modify your sentence. Your misconduct in prison has resulted in a longer sentence and the Court determined that you should not be rewarded for your misconduct. I shall not recuse myself for not granting a sentence modification.
PROCEDURAL BARS
Procedural bars will be discussed on a ground-by-ground basis.
APOLOGY
The Defendant's Motion is lengthy, rambling and frequently difficult to understand.
That has resulted in a decision that is lengthy and probably at times rambling. Hopefully it will not be difficult to understand.
GROUND ONE
You complain that you do not recall waiving your right to be indicted by the Grand Jury and that you do not have a copy of the waiver.
The docket entry for May 13, 2004 evidences that an information and waiver of indictment were filed in this Court as to the weapons offense and the misdemeanor drug offenses. Just prior to your July trial date, the defense successfully sought to sever your weapons charge from the drug charges. The trial on the weapons offense took place on August 24, 2004. Later, with the Public Defender's office representing you, you pled guilty on September 20, 2004 to a misdemeanor drug offense.
The waiver of indictment cannot be located in the file, but that does not mean it did not occur. The practice in this Court is that approximately 90% of cases are prosecuted by information.
The docket evidences a waiver was filed. Of greater significance is the transcript of the preliminary hearing which I've enclosed. It evidences you signed the waiver to proceed by information in order to obtain a copy of the police report. You were represented by the Public Defender's Office.
Based on the above, I find that you waived your right to indictment by the Grand Jury. This ground is denied.
GROUND TWO
You argue your attorneys at the Public Defender's Office were ineffective. This ground is not procedurally barred. To prove same, you must establish your attorney committed some error or that there was an omission in their performance. The Court must review such claims objectively as to representation by counsel and not subjectively through your eyes. You must also establish that any mistakes by your attorney actually caused you prejudice. Strickland v. Washington, 466 U.S. 668 (1984). A failure to establish either prong of Strickland results in the claim being denied. If you fail to establish either prong, the Court does not have to even address or discuss the remaini ng prong.
Specifically you claim your public defender was ineffective in advising you to waive your preliminary hearing. You complain that had you had a preliminary hearing, the charges would have been dismissed.
There are good reasons for an experienced criminal attorney to waive a preliminary hearing, but I need not explore same because you cannot prove the preliminary hearing "would have been the stopping point", as you allege. The jury found you guilty beyond a reasonable doubt; therefore, it is impossible for you to prove no probable cause existed. You cannot prove prejudice.
This ground is denied.
GROUND THREE
You complain that the Court predetermined your sentence based upon the comments following your fifth violation of probation. This is discussed above in the matter of your request for recusal. The fact that you ended up getting Key on the weapons offense and not the violation of probation is irrelevant because of the appropriateness to shed the older case under SB 50. This claim is denied.
GROUND FOUR
This is a repeat of Ground One concerning waiver of indictment and is denied for the same reasons.
GROUND FIVE
You claim your attorney was ineffective because she did not seek the recusal of this Judge based upon the comments about your sentence following your violation of probation. Since I have determined recusal was not necessary or required, this claim is denied.
I also note that because you chose to represent yourself, you could have made the aforementioned recusal request but did not. After choosing to proceed pro se, you cannot complain what you failed to do.
This claim is dismissed.
GROUND SIX
In this rambling allegation, the Defendant complains that his attorney who represented him up until the Court granted his motion to represent himself, was ineffective because she participated in plea negotiations when she should have known the Defendant wanted to proceed to trial.
The final case review transcript evidences that plea negotiations were ongoing and that twice you indicated a desire to resolve the charge with a guilty plea but changed your mind.
An attorney who does not explore plea negotiations might be ineffective. I do not find that your attorney's plea negotiations with the State was wrong nor can you establish those negotiations contributed in any way to your conviction by the jury. Nor, as you allege, did the negotiating result in any unreasonable delay in your trial. You were charged with having a weapon on April 14, 2004. Your jury trial took place on August 24, 2004.
This ground is denied.
GROUND SEVEN
In this ground you argue your attorney was ineffective because she told you she did not have to do what you directed her to do. This is a conclusory allegation as you do not make any specific allegations.
It is denied because (a) it is conclusory; (b) your attorney is not required to blindly do what you tell her to do; and (c) you represented yourself at trial; therefore, you could have made the arguments or motions you think she should have.
Having shown no error on counsel's part or any prejudice, this claim is denied.
GROUND EIGHT
This is a continuation of the allegations contained in Ground Seven.
The fact that your attorney gave you a bleak assessment of the outcome should the case go to trial is not an indication of ineffectiveness. Lawyers are duty-bound to give their clients and frank and realistic assessment of the case.
This ground is denied for the reasons stated in Ground Seven.
GROUND NINE
Defendant alleges counsel was ineffective for not filing a Motion to Suppress his statements to the police on the grounds he had consumed drugs prior to talking to the police.
Assuming the Defendant had consumed drugs, it is not illegal or unconstitutional for the police to interview a person under the influence of alcohol or drugs unless the person is so intoxicated he could not voluntarily decide to talk with the police.
At trial, the evidence before the jury was that the police found a handgun in front of the sofa of a house you were living in. They came to the house because the owner told them you had no permission to live in the house.
When they spoke to you, they reviewed your Miranda rights with you. You agreed to speak to the police and told them you lived in the house alone.
Miranda v. Arizona, 384 U.S. 436 (1966).
When the police showed you the revolver, you told them it looked familiar to you because you had found it in a box of clothes you obtained from a church. This was days or weeks earlier.
You testified to same before the jury. From your own testimony, the jury heard that you found a gun and kept it.
You argued that since you did not "own" the house and did not "own" the gun, you were not in possession of it.
With this background, I do not find that you have established your attorney committed any mistake in not purs uing a Motion to Suppress your statement due to your own voluntary intoxication. There is nothing in your record or pleadings to establish that you were so intoxicated that the police took advantage of you and obtained an involuntary statement.
Therefore, this ground is denied.
GROUND TEN
This is another ineffective assistance of counsel allegation. You allege your attorney would not file a motion that you did not possess a "deadly weapon". You argue both possession and that the gun was not a deadly weapon because "The gun was inoperable".
Whether or not you possessed the revolver was a matter for the jury to determine, not your attorney. You acknowledged you lived in the house where the gun was found. You acknowledged having the gun, i.e. found it days or week earlier. Ownership is not an element of possession.
As a matter of law, a firearm is a deadly weapon whether it is operable or not. No matter how unfair you personally think the law may be, it's still the law.
Your attorney was not ineffective for refusing to file a motion to dismiss as to either the "possession" argument or the "inoperability" argument.
This ground is denied.
GROUND ELEVEN
In Ground Eleven, you repeat your claims that your attorney should have filed pretrial motions; and in not complying with your wishes, she was ineffective. This ground has been discussed earlier and is likewise denied.GROUND TWELVE
You allege collusion between your attorney and the Court. Shortly after your attorney was successful as to the Motion to Sever the charges, you sent a letter to the Court complaining about your attorney. Judge E. Scott Bradley wrote to you and told you he was sending a copy of your letter to your attorney for her to take action she deemed appropriate. When a Defendant complains about an attorney, the Court forwards the complaint to the attorney requesting that the attorney take appropriate action. The Court does not make a ruling as to the matters creating any dissatisfaction. The Court expects the attorney and the client to communicate to try to resolve their differences. As noted above, your attorney does not have to file motions just because that is what you want. She cannot file motions that she believes have no merit just to satisfy you.
In your letter received July 14, 2004, you did not ask that she be discharged, nor did you ask to represent yourself. Therefore, you are mistaken in alleging that Judge Bradley should have ruled on your request to dismiss counsel.
This ground is denied.
GROUND THIRTEEN
This allegation is labeled ineffective assistance of counsel. As best I can understand it, you allege that your attorney was ineffective for not filing the motions you wanted filed because of her own interest, perhaps in her professional reputation or that such filings would create problems for her with the Court or the prosecution.
These allegations are conclusory and amount to nothing more than a repeat of your general complaints against your lawyer.
There is nothing in your pleadings to suggest your lawyer did not abide by her professional duties to you and to the Court.
This conclusory ground is denied.
GROUND FOURTEEN
On August 2, 2004, you did file a Motion to Disqualify your public defender. You alleged that you did not find her to be competent and she would not file motions pursuant to your directions.Judge Richard F. Stokes denied this Motion on August 5, 2004 noting it was conclusory and filed on the eve of trial with the consequence of delaying the trial.
You then filed a Motion to be co-counsel which was denied by Judge Stokes on August 9, 2004. You have no right to be co-counsel.
On Wednesday, August 18, 2004, I presided over your final case review on the weapons offense. At this hearing, your attorney advised that you had twice decided to take a plea but changed your mind, as was your right. The case was mandated for trial, as scheduled, on August 24, 2004.
At this final case review, you requested that you proceed pro se, representing yourself. The transcript evidences I asked you "You want to proceed pro se?" and you replied "I most certainly would like to".
I told you I wanted you to think about such a serious decision and warned you against it. I told you the case was going to trial the next week with or without your attorney. A request by your attorney for a continuance to allow you the opportunity to try to hire another lawyer was denied as it was on the eve of trial.
The decision by Judge Stokes as to your conclusory request to disqualify your attorney because you were not satisfied with her decision to not file the motions you wanted was not erroneous. You do not get a new attorney because you do not get along with your attorney. You have a right to an attorney. You do not have a right to the attorney of your choice or an attorney who will be at your beck and call.
This claim is denied.
GROUND FIFTEEN
I do not understand your complaint as to Ground 15.
When your lawyer was successful as to the Motion to Sever, a second file was created in the Prothonotary's Office: one for the weapons offense which went to trial on August 24, 2004 and a second for the remaining drug charges which were resolved when you pled guilty on September 8, 2004.
You and the Court were both aware of your letters and motions regardless in which file the papers were placed.
Your pleading states no basis to grant relief. This ground is denied.
GROUND SIXTEEN
You complain that you were never adequately notified of the August 24, 2004 trial.
The Prothonotary's file indicates that at the May 18, 2004 Track 1 Calendar the trial on all charges was set for July 15, 2004. When the severance motion was granted, the weapons case was set for August 24, 2004 with a final case review on August 18, 2004.
I don't know about your communications with your attorney but you were in Court on August 18, 2004 and knew why you were there. You knew you had an attorney and that a continuance to hire another lawyer was not granted. Subsequently, on August 23, 2004, you chose to go to trial without your at tor ney.
Therefore, when you first got notice of the August 24, 2004 trial date is not critical. You made your decisions with your eyes open wide.
The Defendant has not established any basis to make a claim he was somehow prejudiced by not knowing when his trial was scheduled.
This ground is denied.
GROUND SEVENTEEN
This is a repeat of Ground Sixteen.
The only additional argument is that Justice of the Peace Civil Rule 12 permits a continuance when a defense is raised at trial or in such close proximity to trial that the other party would be prejudiced. This rule is not applicable to a Superior Court criminal trial and there is nothing in the record to suggest any continuance request was made other than to get another lawyer.
If the Defendant thought the Court abused its discretion in denying the continuance request on final case review, then he had the obligation to file an appeal. He did not.
Therefore, this allegation is procedurally barred under Rule 61(i)(3). It is also denied on its merits for the above reasons.
GROUND EIGHTEEN
We return to allegations of ineffectiveness of counsel. You claim your lawyer misrepresented your position as to a continuance request to obtain other counsel. You allege this was done on August 23, 2004, the day before trial when the pro se colloquy took place. In my review of the transcripts, I find her request occurred on August 18, 2004 at the final case review.
I need not address your allegation because you make no allegation as to how this prejudiced you.
This claim is denied
GROUND NINETEEN
You complain that your sentence was outside the SENTAC guidelines and is therefore illegal and unlawful. You were sentenced within the statutory maximum for the crime for which you were fou nd gu ilty.
The Court noted your prior history, the violation of probation as well as the TASC recommendation for Key and Crest. The need for treatment was noted by the Court in sentencing you to the Key and CREST programs. The sentence was legal. The Court noted your crack cocaine problem and sentenced you to a treatment program. If you had taken care of your business at prison, you would have been through both the Key and CREST programs long ago.
This claim is denied.
GROUND TWENTY
This is a repeat of Ground Nineteen and other allegations. You state you could have received eight (8) years, but received five (5) years. Nevertheless, you argue that I exceeded the guidelines. This is denied for the reasons stated in Ground Nineteen.
GROUND TWENTY-ONE
The Defendant alleges that comments by his attorney during the pro se colloquy somehow prejudiced the Court in its sentencing decision. All she did was correctly respond to the Court's inquiry as to the maximum sentence you faced if convicted. I had to know that you knew the maximum sentence in making your decision to represent yourself.
You acknowledge she was accurate in stating eight (8) years, but argue she should have told me something less was appropriate. I asked for the maximum as I had to do, not what was appropriate.
This claim is frivolous and is denied.
GROUND TWENTY-TWO
Defendant alleged his attorney was ineffective for not doing a full investigation as to his treatment history. He alleges she would have learned of his previous treatment failures.I am not sure where this allegation takes us. You did not want to take a plea while she represented you. Therefore, she had no opportunity to argue for the position the Defendant now takes.
You represented yourself at sentencing and you were free to address all relevant sentencing issues.
There is no basis to conclude that his attorney was not aware of the Defendant's treatment history but what she knew or did not know is mooted by the Defendant's decision to go it alone.
This ground is denied.
ADDITIONAL GROUNDS ALLEGED
The Defendant's pleadings list twenty-six (26) grounds for relief. His memorandum in support of his allegations lists twenty-two (22) grounds for relief.
As discussed above, there is much overlap in what the Defendant alleges, but there is a perjury allegation which is not discussed in the memorandum.
PERJURY BY POLICE
The Defendant makes a conclusory allegation as to false testimony. It is denied.
CONCLUSION
For the aforestated reasons, the Defendant's Motion for Postconviction relief is denied.
IT IS SO ORDERED.