Opinion
Case Nos. 0705008191, 0705029012.
Submitted: October 3, 2007.
Decided: March 4, 2008.
Upon Consideration of Motion for Postconviction Relief: DENIED.
ORDER
This 4th day of March, 2008, upon consideration of Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, it appears to the Court that:
1. Defendant was sentenced on August 27, 2007 on two counts.
2. For count 1, delivery of a schedule II narcotic, defendant is to serve six years at Level V, suspended after one year, for five years at Level IV home confinement. The Level IV portion is suspended after six months for 18 months at Level III.
3. For count two, robbery in the second degree, defendant is to serve five years at Level V, suspended after 18 months for three years and six months at Level IV home confinement. The Level IV portion is suspended after six months for 18 months at Level III.
4. Before addressing the merits of any post conviction relief claim, the Court must determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. Superior Court Criminal Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within one year of a final order of conviction; 2) any ground for relief that was not asserted in a prior postconviction proceeding is thereafter barred; 3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and 4) any ground for relief must not have been formerly adjudicated in any proceeding leading to the judgment of conviction.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5. The motion for post conviction relief was timely filed and is not repetitive. Thus, the Court will consider its merits.
6. Defendant claims that counsel made errors which rendered his assistance ineffective.
7. Under Strickland v. Washington, and Flamer v. State, the test for ineffective assistance of counsel is (1) whether counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. There is a strong presumption that legal representation is professionally reasonable.
466 U.S. 668 (1984).
585 A.2d 736 (Del. 1990).
Strickland, 466 U.S. at 688, 694.
Flamer, 585 A.2d at 753-54.
8. Specifically when analyzing a postconviction relief motion that challenges a guilty plea, the "defendant must show 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.'" The burden is on defendant.
MacDonald v. State, 778 A.2d 1064, 1075 (Del. 2001) quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Id.
9. As a result of the plea negotiated by defense counsel in this case, the state elected to enter a nolle prosequi of 13 charges.
10. Defense counsel negotiated with the state and defendant rejected the initial plea offer. Defendant accepted the second offer extended.
11. Accordingly, defendant signed the (1) plea agreement, (2) truth in sentencing form, and (3) revocation of defendant's driving license as a result of his guilty plea to the two remaining charges.
12. Unlike in MacDonald, this was not a hasty plea agreement as both defense counsel and the State have recounted numerous attempts at communication in order to resolve this case. Also unlike MacDonald, defense counsel contacted defendant's family, monitored his progress while in custody prior to the plea, and renegotiated the plea agreement at defendant's insistence.
13. Aside from bald assertions which are without factual support, defendant has not demonstrated that absent counsel's actions, he would have insisted upon going to trial.
14. Based upon the above reasoning, Defendant's Motion for postconviction Relief is DENIED.
IT IS SO ORDERED.