Opinion
No. 0303015975.
July 25, 2005.
Dear Mr. DuPree:
On May 23, 2005, you filed a Motion for Postconviction Relief with this Court. It is a brief document that contains conclusory allegations. You allege your attorney was ineffective because he did not sufficiently provide you with the nature of the plea offer the State made. You further allege that he admits he didn't explain it to you sufficiently and had he done so, you would have accepted the plea. You allege there was physical evidence that was presented at trial that "was not mine". You complain that the State's opening arguments in characterizing the burglary as a theft from someone's residence was wrong and that the Court did not properly instruct the jury. Finally you complain the Court allowed amendments to the charging documents.
HISTORY
Prior to the trial, this case had a long history. There were too many continuances due to several issues, but those continuances and the multiple final case reviews arising from the continuances provide background for disposition of your first claim.
Ultimately, upon being tried, you were found guilty of multiple counts of burglary in the 2nd degree, multiple counts of theft both felony and misdemeanor, and multiple counts of criminal mischief. You were declared a habitual offender and sentenced accordingly.
Upon appeal, there was an attack on the Court's denial of your Motion to Suppress which included a contention that your statement was involuntary. Your conviction was affirmed on April 12, 2005. DuPree v. State, 2005 Del. LEXIS 147 (Del. 2005).
DISCUSSION
Ground One claims that your attorney was ineffective. To establish an ineffective assistance of counsel claim, you must prove that your attorney committed an error, based upon an objective standard, and that that error actually caused you prejudice. Strickland v. Washington, 466 U.S. 668, (1984). You allege that your attorney did not sufficiently provide you with information concerning the nature of the plea offer.
The transcripts of the final case reviews prior to your trial lead me to conclude that an evidentiary hearing is unnecessary. On January 21, 2004, your attorney reported to the Court that plea negotiations began with the State's recommendation of life in jail. At some point, your attorney's negotiations with the State resulted in a recommendation of eight (8) years of incarceration followed by probation. You rejected that plea offer.
Your attorney reported that when he was with you on December 5th, he spent almost the entire day discussing the nature of the plea bargain which by then had gone up to nine (9) years and that you had rejected that plea offer. Mr. Schwartz explained that he told you that as the case got closer to trial and more energy and effort was put into the case, you could expect that the prosecutor would be less willing to negotiate favorably. Also, your attorney reported that as of January 21, 2004, you were still rejecting plea offers and instead wanted to take the case to trial. Because the case had to be rescheduled, another final case review was scheduled on March 3, 2004. Although plea negotiations had previously broken off, your attorney reported that the prosecutor made another plea offer. Under that plea, you were looking at a minimum of 11 years incarceration, and up to life imprisonment.
Your attorney reported that he had talked to you about his position as to the plea bargains, but nevertheless you were desirous of going to trial, as was your right.
Based upon the finding that you were a habitual offender, the Court is aware that you are not "a babe in the woods" as far as the criminal justice system is concerned. You chose to reject the plea offers and play hard ball in an environment where you knew the plea bargains that were being offered were getting tougher as you got closer to trial.
Based upon the record, I am satisfied that you were fully aware of the plea offers and the consequences of these offers. You made the decision to reject them, as was your right. I am not satisfied that you have shown any error on the part of your attorney by him not fully advising you of the consequences and nature of the plea offer. Furthermore, I am not satisfied that you have established any prejudice in light of your strong desire to proceed to trial. This ground is dismissed.
In Ground Two, you complain about the evidence at trial. This is a conclusory allegation and has no underlying factual basis. It is dismissed as being conclusory. Also, it is dismissed as it is procedurally barred under Rule 61(i)(3) as there has been no explanation as to why this complaint was not raised earlier and also presented to the Supreme Court on appeal nor has there been a showing of specific prejudice.
Ground Three is a general complaint about the State's opening argument concerning a burglary being a theft at someone's residence and about the Court's instructions. Ground Three is also a conclusory statement with no underlying factual detail to establish the basis of this claim. It is denied as being conclusory. Likewise as to your complaint about the jury instructions and the amendment. This claim is also procedurally barred under Rule 61(i)(3) as there has been no explanation as to why this claim was not presented earlier and prosecuted on appeal, nor has there been any showing of specific prejudice.
The Defendant's Motion for Postconviction Relief is denied.