Opinion
C.A. No.: 1N98-06-1432R1, 0683R1, 0196R1, IN98-06-1433R1, 1578R1, 0198R1
Date Submitted: December 7, 2000
Date Decided: January 29, 2001
Upon Defendant's Motion for Postconviction Relief: DENIED.
ORDER
Upon review of Movant Victor Duonnolo ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 following a guilty plea on April 12, 1999 to two counts of Conspiracy Second, two counts of Receiving Stolen Property, and two counts of Robbery Second.
2. In support of his motion, Defendant alleges that the prosecutor and his attorney failed to investigate his case; that the prosecutor and his attorney conspired to violate his 5th, 6th and 14th Amendment rights; and that Defendant pled guilty to an illegal charge. Defendant fails to provide any substantiation for his allegations.
3. The Delaware Supreme Court has held that in reviewing motions for postconviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. Rule 61(i)(4) provides for summary dismissal by the court "[i]f it plainly appears from the motion . . . and the record . . . that the movant is not entitled to relief, the judge may enter an order for its summary dismissal . . ."
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 747 (1990).Repealed.
This Court will not address Rule 61 claims that are conclusory and unsubstantiated. Pursuant to Rule 61(a), a motion for postconviction relief must be based on "a sufficient factual and legal basis." In addition, pursuant to Rule 61(b)(2), "[t]he motion shall specify all the grounds for relief which are available to movant . . ., and shall be set forth in summary form the facts supporting each of the grounds thus specified." Defendant has failed to set forth his claims with specificity and supporting facts.
See Yaunger v State, Del. Supr., 580 A.2d 552, 555 (1990); State v. Conlow, Del. Super., Cr.A. No. 1N78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr.A. No. 1N87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
4. Defendant's claims are twofold. First, Defendant claims throughout his motion that he pled guilty to an illegal charge, that he entered an illegal plea agreement, and that he was illegally sentenced; however, the defendant fails to state why this is an illegal charge, plea agreement, or sentence. The Court therefore finds this allegation to be conclusory and unsubstantiated.
The Court can only speculate from Defendant's statement that he was "pleading guilty to a charge that was already ruled on by Judge Toliver . . . in a similar case . . ." that this is the basis for that allegation. However, Defendant never elaborates regarding the ruling by Judge Toliver, nor can this Court find anywhere in the record where Defendant was before Judge Toliver on these or any other robbery charges.
5. The remainder of Defendant's motion is essentially a claim for ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, Defendant must satisfy the two-part test set forth in Strickland v. Washington. Thus, Defendant must first show that his attorney's conduct fell below that of reasonable professional standards, and second, that such conduct caused him actual prejudice.
466 U.S. 668, 687 (1984).
Strickland, 466 U.S. at 687, 688.
Id at 687, 693.
In the context of an ineffective assistance of counsel claim, "a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal." In the case of a guilty plea, the United States Supreme Court has held that the second prong of the Strickland test becomes whether the defendant has shown that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."
Walls v. State, Del. Supr., No. 59, 1995, Holland, J. (Jan. 4, 1996)(ORDER) at 7; citing Younger, 580 A.2d at 556.
Hill v. Lockhart, 474 U.S. 52, 59 (1985). See Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988).
6. Defendant claims that counsel was ineffective because the attorney 1) did not communicate diligently to the movant regarding the crimes against him"; 2) failed to investigate; 3) failed to provide an affirmative defense; 4) failed to provide Defendant with "a complete Rule 16 motion for discovery" because counsel did not show Defendant the police reports; 5) failed to interview witnesses for both the State and the defense; and 6) failed to "negotiate a legal and respectable plea agreement."
7. Defendant's allegations that his attorney did not communicate diligently with him, failed to investigate the case, failed to provide an affirmative defense, and failed to interview witnesses, are conclusory statements and unsubstantiated in either Defendant's motion or corresponding memorandum of law. Defendant summarily states that had counsel "told [him] that the second Robbery charge was illegal and that there can only be one Robbery if there is only one actual theft and had [counsel] shown additional effort in investigating the law surrounding the second Robbery, the likelihood is, that the recommendation for the plea agreement would have changed." Similarly, in alleging that his attorney failed to interview witnesses, Defendant only states that these were witnesses that "stated that the suspect in the Robbery looked different from the movant and could prove the movants innocence." Defendant fails to state who these witnesses are, and how the failure to interview these witnesses was prejudicial to his case. Defendant accepted a plea agreement and it is unclear how the discovery of unspecified evidence would have changed the outcome of Defendant's case. Simply stating that there is a likelihood the recommendation for the plea agreement would have changed is not a concrete allegation of actual prejudice.
8. The Court also finds Defendant's other two claims to be unsubstantiated. Defendant alleges that his attorney failed to negotiate a legal and respectable plea agreement, but, as stated previously, Defendant fails to set forth how his plea agreement was illegal. Defendant then claims that counsel failed to provide Defendant with a complete Rule 16 motion for discovery by failing to give Defendant a copy of the police report. Defendant appears to misunderstand that the disclosure rule contemplates that such disclosures be made to defense counsel and the information therein then be discussed and shared with the defendant. The rule does not contemplate that Defendant have each disclosure in his, and not his attorney's, possession. Defendant fails to prove by other than conclusory reference that any disclosure made by the State to the defense was not shared or discussed with him. As a result, Defendant has failed to demonstrate that there were any deficiencies in the discovery process, and assuming arguendo that there were, he has not demonstrated that he therefore suffered prejudice or that a miscarriage of justice was committed.
9. "It is settled Delaware law that allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel." Because Defendant does not present the Court with any evidence that his counsel's conduct fell below that of reasonable professional standards or that he was prejudiced as a result of his attorney's conduct, his claim of ineffective assistance of counsel also must be denied as conclusory. Therefore, Defendant is not entitled to postconviction relief and his Rule 61 motion is hereby summarily dismissed.
State v. Brittingham, Del. Super., Cr. A. No. 1N91-01-1009-Rl, Barron, J., (Dec. 29, 1994) (ORDER) at 3 (citing Younger v. State, 580 A.2d at 556; Jordon v. State, Del. Supr., No. 270, 1994, Walsh, J. (Aug. 25, 1994)(ORDER)).
See State v. Mason, Del. Super., Cr. A. No. 1N98-02-0279R1, Barron, J. (Apr. 11, 1996) (Mem. Op.); see also Walls, No. 59, 1995, (ORDER) at 7.
For the above stated reasons, Defendant's motion for post-conviction relief is DENIED.
IT IS SO ORDERED.