Opinion
I.D. # 0110001893.
Submitted: August 1, 2005.
Decided: November 15, 2005.
Upon Defendant Joshua Hackett's Pro Se Motion for Rule 61 Post-Conviction Relief — DENIED IN PART, SUMMARILY DISMISSED IN PART
Appearances:
William L. George, Esquire, Deputy Attorney General, Carvel State Building, 820 North French Street, Wilmington, Delaware 19801, Counsel for the State of Delaware.
Joshua N. Hackett, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaware 19977, the Defendant, pro se.
Jerome M. Capone, Esquire, 1823 West 16th Street, Wilmington, Delaware 1980, former Counsel for the Defendant.
Anthony A. Figliola, Jr., Esquire, 1813 Marsh Road, Suite A, Wilmington, Delaware 19810, former Counsel for the Defendant.
OPINION
I. Factual and Procedural Background
On November 18, 2002, following a mistrial, Joshua N. Hackett (hereinafter the "Defendant") pled guilty to two counts of Robbery First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony ("PDWDCF"). On January 23, 2003, the Defendant requested to withdraw his plea, and on March 24, 2003, he moved to dismiss his attorney. Prior to sentencing, the Court granted Defendant's motion to dismiss Anthony A. Figliola, Jr. as the Defendant's attorney and appointed Jerome M. Capone to represent the Defendant. The Defendant, through Mr. Capone, then decided not to withdraw his plea and on July 11, 2003, the Defendant was sentenced. As to each count of Robbery First Degree, the Defendant received a term of five years at Level V. As to the single count of PDWDCF, the Defendant was sentenced to a term of five years at Level V, suspended after three years, with the balance to be served at Level III. These sentences are to be served consecutively.
Aff. in Resp. to Rule 61, State v. Hackett, ID No. 0110001861 (Dec. 7, 2004), at 4. (D.I. 74). The Court granted a mistrial after the State's opening statement suggested allegations of sexual misconduct of which the Defense was unaware.
Letter from Defendant, State v. Hackett, ID No. 0110001893 (Jan. 23, 2003); Tr. Sentencing, State v. Hackett, ID No. 0110001893 (July 11, 2003), at 4; Mot. to Dismiss Counsel, State v. Hackett, ID No. 0110001893 (Mar. 24, 2003). (D.I. 54, 80, 48).
The Court took this step after the Defendant expressed regret about entering his plea and alleged ineffective assistance of counsel.
Tr. Sentencing, at 4-5. (D.I. 80).
Presently, four of the Defendant's motions are before the Court. On July 15, 2004, the Defendant filed his first motion for post-conviction relief. He amended this motion on August 6, 2004, and filed a supplemental amendment on October 13, 2004. The Defendant later withdrew his August 6, 2004 amendment. Subsequently, on December 7, 2004, each of the Defendant's prior Attorneys filed affidavits in response to the Defendant's first motion. The State filed its response on January 4, 2005. On February 23, 2005, the Defendant filed his second motion for post-conviction relief. The State filed its response to this motion on May 2, 2005. Finally, on August 1 and August 10, 2005, the Defendant filed his third and fourth motions for post-conviction relief.
See Aff. of Capone, State v. Hackett, ID No. 0110001893 (Dec. 7, 2004), at 1. The Defendant's first motion erroneously identified Mr. Capone as counsel. However, the record shows Mr. Figliola as defense counsel during the plea negotiations, thus this motion actually addresses Mr. Figliola's representation. (D.I. 63, 73).
On August 2, 2004, the Defendant mistakenly filed a motion to withdraw his Rule 61 Motion. This motion to withdraw was itself withdrawn on August 4, 2004, in favor of his motion to amend. (D.I. 65, 67).
The Defendant withdrew the August 6, 2004 "typed" amended motion by letter on August 8, 2005. (D.I. 68, 85).
II. Summary of Defendant's Allegations
The Defendant filed the instant Motions for Post-conviction relief alleging ineffective assistance of counsel and requesting the withdrawal of his guilty plea. Primarily, the Defendant claims that his attorneys: (1) coerced his acceptance of an "all or nothing" guilty plea; (2) failed to investigate and mount a proper defense; and (3) failed to delay sentencing to permit his withdrawal from the coerced plea. For the reasons that follow, the Defendant's Motions for Post-conviction Relief are DENIED.
III. Discussion
Pursuant to Superior Court Criminal Rule 32(d), after sentencing, a plea may only be set aside by motion under Rule 61. Rule 61 Motions "are addressed to the sound discretion of the Superior Court." Before addressing the merits of claims underlying a motion for post-conviction relief, the Court must determine whether the procedural bars of Superior Court Criminal Rule 61 apply. After reviewing the Defendant's present motions, the Court finds they are not procedurally barred. These motions were timely filed and allege only ineffective assistance of counsel claims that have not been previously adjudicated.However, Rule 61(d)(4) permits a judge to "summarily dismiss a post-conviction relief motion if it is plain from the motion that the movant is not entitled to relief." As explained below, the Court finds subsection (d)(4) applies to the following ineffective assistance of counsel claims made by the Defendant: (1) Mr. Figliola failed to hire a private investigator to investigate the crime, (2) Mr. Figliola failed to file an ex parte motion for expenditure of funds to mount a proper defense, (3) Mr. Figliola failed to interview "any of the witnesses for the defense" and "to subpoena the witnesses . . . because they were self admitted drug dealers," (4) Mr. Figliola failed to disclose prior unrelated disciplinary actions, (5) Mr. Capone was unfamiliar with the case and the Defendant's dispute with Mr. Figliola, and (6) Mr. Capone failed to "delay the sentencing to find out what was happening."
Clayton v. State, 1993 WL 21987, at *1 (Del.Supr.).
Def. Mot. Post-conviction Relief, State v. Hackett, ID No. 0110001861 (Feb. 23, 2005); Def. Mot. Post-conviction Relief (Aug. 1, 2005); Def. Mot. Post-conviction Relief (Aug. 10, 2005). (D.I. 76, 81, 84).
To succeed on any of these claims, the Defendant must satisfy the test set forth in Strickland v. Washington. The Defendant's bare allegations, which constitute the above claims, fail to satisfy this test. Under the Strickland test a defendant must demonstrate that "(a) his counsel's conduct fell below an objective standard of reasonableness; and (b) there is a reasonable probability that, but for his counsel's errors, he would not have pled guilty but would have insisted on going to trial." A defendant asserting such a claim must "make concrete allegations of cause and actual prejudice to substantiate a claim . . . to avoid summary dismissal."
Strickland v. Washington, 446 U.S. 668 (1984).
Grosvenor v. State, 849 A.2d 33, 35 (Del. 2004), citing Hill v. Lockhart, 474 U.S. 52, 58 (1985).
Grosvenor, 849 A.2d at 35, citing Younger, 580 A.2d at 556.
In the case at bar, the Defendant offers no proof or evidence of unreasonable conduct by either of his Attorneys in support of these claims. In his allegations against Mr. Figliola, the Defendant fails to identify the "witnesses for the defense" that required contacting, offers no insight into their potential testimony and proffers no explanation for how "it would have been helpful to the defense at trial." Likewise, the Defendant offers no explanation for why or how an ex parte motion for expenditure of funds would have aided his defense. The Defendant also fails "to demonstrate actual prejudice stemming from counsel's alleged failure to disclose to him a prior attorney disciplinary matter in which counsel was involved."
Cousins v. State, 2004 WL 1097700, at *3 (Del.Supr.).
Id. at *3.
Similarly, the record establishes that the Defendant's above allegations as to Mr. Capone's representation are groundless. It is evident from the record that Mr. Capone actively investigated the plea and reviewed the Defendant's file. Moreover, contrary to the Defendant's assertion, Mr. Capone did request a continuance of sentencing in order to complete this review.
Tr. Sentencing, at 4-5; Aff. Capone, at 1-2. (D.I. 80, 73).
The Court granted this request on May 21, 2003. (D.I. 58).
The Court finds that the Defendant's claims set forth above "do not rise factually or legally to the threshold required by Rule 61" and, because "conclusory allegations are insufficient," the Court SUMMARILY DISMISSES those claims. The Court will now address the Defendant's remaining arguments that arise from the Defendant's guilty plea agreement.
State v. Boyd, 1997 WL 127979, at *3 (Del.Super.Ct.) (adopting the Commissioner's Report).
A. Defendant Seeks to Withdraw His Plea Due to Ineffective Assistance of Counsel
To withdraw a guilty plea, a defendant "must establish that his plea was either `not voluntarily entered or . . . entered because of misapprehension or mistake' as to his legal rights." With regard to such requests, "[i]t is well settled Delaware law that when a defendant seeks to withdraw his guilty plea after sentencing, he `has the burden of showing prejudice amounting to manifest injustice.'" To meet this "heavy burden," where a guilty plea is challenged based on ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland. Again, under this test, a defendant must demonstrate that: "(1) his counsel's conduct fell below `an objective standard of reasonableness'; and (2) his counsel's actions were prejudicial, such `that there is a reasonable probability that, but for counsel's . . . errors, the result of the proceeding would have been different.'"
Albury v. State, 551 A.2d 53, 58 (Del. 1988).
Brown v. State, 1989 WL 114629, at *1 (Del.Supr.) (citing Allen v. State, 509 A.2d 87, 88 (Del. 1986); Albury v. State, 551 A.2d 53 (Del. 1988); State v. Insley, 141 A.2d 619, 622 (Del. 1988)).
Brown, 1989 WL 114629, at *1 (citing Albury, 551 A.2d at 58; Strickland, 466 U.S. at 687-88).
Brown, 1989 WL 114629, at *1 (citing Albury, 551 A.2d at 58; Hill, 474 U.S. at 58).
This is a highly demanding but not "insurmountable" standard, which under its first prong presents a "strong presumption" that counsel's representation was "professionally reasonable." The second prong requires that a defendant affirmatively prove "prejudice." In the context of a guilty plea challenge, proof under this prong requires a showing "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." The United States Supreme Court has held that requiring this "showing of `prejudice' from defendants who seek to challenge the validity of their guilty pleas on the ground of ineffective assistance of counsel will serve the fundamental interest in the finality of guilty pleas." 1. Defendant is Bound by his own Representations to the Court Regarding his Plea
Flamer v. State, 585 A.2d 736, 753-54 (Del. 1990) (citing Albury, 551 A.2d at 59).
Albury, 551 A.2d at 59-60 (citing Hill, 474 U.S. at 58).
Id. at 60.
See Hill, 474 U.S. at 58.
The Defendant's representations in connection with his acceptance of the plea agreement contradict his ineffective assistance of counsel and coercion allegations. The Defendant claims both of his Attorneys were ineffective and coerced his plea in the following ways: (1) by explaining that if he opted to proceed to trial the State would not accept his brother's plea; (2) by assuring him the plea would result in a six year sentence; (3) by leaving him with "the confirm [sic] belief" that the plea was binding on the Court; and (4) by allowing his brother's attorney to threaten him during a joint meeting.
The Defendant was charged and tried, and finally plead with his brother and co-defendant, Adam Hackett.
Mr. Joseph A. Gabay represented Adam Hackett.
However, the record shows that on November 18, 2002, the Defendant signed his Truth-In-Sentencing Guilty Plea Form, clearly acknowledging that: (1) he was not promised anything that was not stated in his written plea agreement; (2) he freely and voluntarily decided to plead guilty; (3) neither his attorney, the State, nor anyone else threatened or forced him to enter his plea; (4) he was "satisfied" with his lawyer's representation, (5) his lawyer had fully advised him of his rights; and (6) the total consecutive maximum penalty for his offenses was sixty years incarceration. During the plea colloquy, the Defendant confirmed, inter alia, that: (1) no promises were made to him that were not contained in his written plea agreement; (2) no one promised him what his sentence would be; (3) he freely and voluntarily decided to plead guilty; (4) neither his attorney, the State nor anyone else threatened or forced him to enter his plea; (5) the maximum consecutive penalty for the two felonies to which he pled guilty was sixty years in prison; and (6) he was satisfied with Mr. Figliola's representation and Mr. Figliola had fully advised him of his rights.
Truth-In-Sentencing Guilty Plea Form, State v. Hackett, ID No. 0110001861 (Nov. 18, 2002).
Tr. Plea Colloquy, State v. Hackett, ID No. 0110001861 (Nov. 18, 2002), at 9-13. (D.I. 49).
"[A]bsent clear and convincing evidence to the contrary, [a defendant] is bound by his answers on the Truth-in-Sentencing Guilty Plea Forms and by his testimony prior to the acceptance of the guilty plea." "It is well established that a `defendant's statements to the Court during the guilty plea colloquy are presumed to be truthful.'" "Those contemporaneous representations by a defendant pose a `formidable barrier in any subsequent collateral proceedings.'" Accordingly, the Court finds the Defendant's statements contained in the record belie his assertions that Mr. Figliola "tricked" and "coerced" him into his guilty plea or that the Defendant found Mr. Figliola's representation unsatisfactory at the time of the plea. The Defendant fails to establish any coercive conduct by Mr. Figliola that would fall below "an objective standard of reasonableness" necessary to satisfy the first prong of the Strickland test for the ineffective assistance of counsel. 2. The Record Establishes the Plea was Entered Voluntarily and Not Made Out of Misapprehension or Mistake
Savage v. State, 2003 WL 214963, at *2 (Del.Supr.) (citing Somerville, 703 A.2d at 632).
State v. McCurley, 2004 WL 2827857, at *5 (Del.Super.Ct.) (citing State v. Denston, 2003 WL 22293651, at *5 (Del.Super.Ct.)).
Somerville v. State, 703 A.2d 629, 632 (Del. 1997) (citing Voytik v. United States, 778 F.2d 1306, 1308 (8th Cir. 1985)).
Brown, 1989 WL 114629, at *1.
The Defendant asserts that his attorneys coerced his plea by explaining it in "all or nothing" terms, leading him to believe the plea was binding on the Court and that it would result in a six-year sentence. However, the facts set forth in the Defendant's motions and his prior attorneys' responses directly contradict these assertions. His attorneys' submissions indicate that they both recommended the plea because it was in his best interest, because his chances at acquittal were "not good" in light of the State's evidence, and because of the "huge amount of mandatory time he was facing" if convicted. The Defendant's attorneys thoroughly explained the State's "wired" or "package deal" plea to him. It is also apparent that both attorneys explained to the Defendant that his charges carried a minimum mandatory sentence of six years incarceration and a maximum sentence of sixty years incarceration. Again, the Defendant himself acknowledged on his Truth-In-Sentencing Guilty Plea Form that there was a minimum mandatory penalty of "6 yrs" and a total consecutive maximum penalty of "60 yrs" incarceration for his crimes. Mr. Figliola stated in his response that he repeatedly explained to the Defendant that the Judge had no discretion as to minimum-mandatory sentences. Although Mr. Capone's response indicates that he may have told the Defendant that he thought the Defendant would receive roughly six years, he also explained to the Defendant that this sentence could not be guaranteed. The Defendant's representations contained in his Truth-in-Sentencing Guilty Plea Form confirm that no one promised him what his sentence would be or promised him anything not contained in the written plea agreement.
Def. Mot. Post-conviction Relief, State v. Hackett, ID No. 0110001861 (July 15, 2004); Aff. Capone, at 2; Aff. in Resp. to Rule 61, at 3-4. (D.I. 63, 73, 74). The record shows that, in addition to the victims' videotaped statements, the other co-defendants and one unindicted co-conspirator positively identified the Defendant, who physically matched the description of the assailant holding the gun. Moreover, even though his brother indicated he would testify to exonerate the Defendant, his brother steadfastly refused to divulge the actual assailant's name. Finally, the Defendant's girlfriend was his alibi witness.
Def. Mot. (July 15, 2004); Def. Mot. (Oct. 13, 2004); Aff. in Resp., at 4; Aff. Capone, at 2. (D.I. 63, 71, 73, 74).
Aff. in Resp. to Rule 61, at 4; Tr. Plea Colloquy, at 4; Tr. Sentencing, at 5. (D.I. 74, 49, 80).
Truth-In-Sentencing Guilty Plea Form.
Aff. Resp. Rule 61, at 6. (D.I. 74).
Aff. Capone, at 2. (D.I. 73).
Truth-In-Sentencing Guilty Plea Form.
Finally, prior to sentencing, the Court and Mr. Capone reviewed the transcript of Defendant's plea colloquy. The Defendant's colloquy was thorough and contains "multiple points" at which the Defendant was advised of and acknowledged the minimum-mandatory time he could receive both under the plea and upon conviction. Also, as recounted above, the Court found the Defendant was questioned directly as to whether anything or any sentence was promised to him, whether he plead voluntarily, whether he was advised of his rights, and whether he was satisfied with his representation. Again, his verbal responses indicated no promises were made, his plea was voluntary, he was advised of his rights, and he was satisfied with his representation. Thus, before sentencing, this Court was satisfied that the Defendant's plea was knowing, intelligent, voluntary and only entered after a great deal of frank discussion between the Defendant and his attorneys.
Tr. Sentencing, at 32-33; Aff. Capone, at 2. (D.I. 80, 73).
Tr. Plea Colloquy, at 11-12; Tr. Sentencing, at 33. (D.I. 49, 80).
See generally, Part I.A, supra.
Id.
Tr. Sentencing, at 33. (D.I. 80).
After reviewing the record and the circumstances surrounding his plea, the Court finds the Defendant was fully advised as to the terms of the plea, the minimum sentencing requirements for his crimes, that minimum sentences are not guaranteed, and that the sentence recommendation is not binding on the Court. Contrary to the Defendant's claim post-sentencing, the Court finds he wasnot promised a six-year sentence. For these reasons, it is the Court's conclusion that the Defendant's plea was entered voluntarily and without misapprehension or mistake. Consequently, the Defendant fails to show prejudice that amounts to the manifest injustice necessary for the Court to permit his plea withdrawal.
The Court recognizes the "all or nothing" plea agreement is at the root of the Defendant's dissatisfaction. As was explained to the Defendant by both of his attorneys, "all or nothing" plea offers generally require "all of the defendants to accept" or the "offer is revoked as to all" defendants. The Delaware Supreme Court has held that such "[a] condition attached to the plea offer by the State requir[ing] that this be an all or nothing plea, or a `wired plea' or a `package deal'" is within the State's broad prosecutorial discretion and does not violate public policy, "provided that defendant's decision to forego a trial is otherwise voluntary."
Guess v. State, 2003 WL 60491, at *3 (Del.Supr.).
Id. (citing United States v. Gonzales-Vasquez, 219 F.3d 37, 43 (1st Cir. 2001); United States v. Gonzales, 918 F.2d 1129, 1134 (3d Cir. 1990); United States v. Crain, 33 F.3d 480, 487 (5th Cir. 1994); Nguyen v. United States, 114 F.3d 699, 704 (8th Cir. 1997)).
As explained above, the record establishes that Defendant's plea was voluntary, not forced or threatened. He was not coerced simply because the plea offered was part of a "package deal," requiring the Defendant to "fall on the sword" for his brother." Moreover, the Court finds that counsel fully explained the terms of the a plea agreement and the sentencing range, and advised the defendant appropriately. Therefore, neither attorney's conduct in presenting the terms of the State's offer to the Defendant fell below the objective standard of reasonableness required by Strickland. 3. There was No Conflict of Interest Created by Joint Plea Discussions
Tr. Sentencing, at 28. (D.I. 80).
Strickland, 446 U.S. 668, 687-88 (1984).
The Defendant asserts "gross negligence on the part of his counsel" arising from a "conflict of interest during plea bargain discussions" attended by the Defendant, his brother and each of their attorneys. Specifically, the Defendant alleges that his right to "conflict-free counsel" was denied when Mr. Figliola allowed "joint plea negotiations," during which the "all or nothing" plea was presented simultaneously to both the Defendant and his brother. The Defendant argues this prevented exploration of a "possible separate additional plea negotiation and . . . agreement to testify . . . in exchange for a more lenient sentence." These claims are unfounded. As Mr. Figliola explains in his response, a joint meeting was necessary so both the Defendant and his brother could view videotaped victim statements alleging sexual misconduct. After watching the videotape, the Defendant maintained he was not involved. His brother indicated he could testify to that effect. However, the Defendant's brother refused to identify the assailant, a precondition to the State's offer to drop the charges pending against the Defendant. During the meeting, the plea offer was presented by the co-defendants' attorneys, who explained the "package deal" to the co-defendants.
Def. Mot. (July 15, 2004). (D.I. 63).
Id.
Aff. Resp. Rule 61, at 3. (D.I. 74).
Id. at 2-3. The Defendant "swore" the assailant was his younger brother Justin Hackett. Upon receipt of this information, the State indicated it would not proceed against the Defendant if Adam Hackett confirmed Justin's involvement.
The next day the Defendant and Mr. Figliola met again, by themselves, to review the evidence. It was during this second meeting that Mr. Figliola urged the Defendant to accept the plea, which he believed to be in the Defendant's best interest. It was not until the day of trial that the Defendant approached Mr. Figliola about accepting the plea.
Aff. Resp. Rule 61, at 4; Def. Mot. (July 15, 2004). (D.I. 74, 63).
Aff. Resp. Rule 61, at 4. (D.I. 74).
Based on these facts, the Court finds no conflict of interest was created by the joint meeting.
See State v. Grosvenor, 2004 WL 692720, at *3 (Del.Super.Ct.), aff'd., 2004 WL 2743543, at *2 (Del.Supr.).
IV. Conclusion
There is no factual or legal basis for the Defendant's allegations of ineffective assistance of counsel or coercion of his plea. He fails to satisfy either prong of the Strickland test. He has failed to establish that his attorneys' conduct caused him to enter his plea involuntarily or under misapprehension or mistake. Instead, the record demonstrates the Defendant made a knowing, intelligent and voluntary decision to plead guilty. Therefore, the Court finds no manifest injustice in sustaining the plea.For the foregoing reasons, certain of the Defendant's claims are SUMMARILY DISMISSED and his Motions for Post-conviction Relief are DENIED.