Opinion
I.D. No. 0506014139.
Submitted: March 7, 2008.
Decided: March 20, 2008.
UPON CONSIDERATION OF DEFENDANT'S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF DENIED.
This 20th day of March, 2008, it appears to the Court that:
1. On August 8, 2006, Defendant Cecil Hall, who legally changed his name to Salih, pleaded guilty to two counts of Burglary in the Third Degree, in exchange for which the State dismissed two counts of Felony Theft, three counts of Criminal Mischief, one count of Attempted Burglary in the Third Degree, and one count of Attempted Felony Theft. Upon the State's motion, the Court also found that Salih was a habitual offender under 11 Del. C. § 4214.
For purposes of this motion, the Court will refer to the defendant as Salih.
2. On December 1, 2006, the Court sentenced Salih. At the sentencing hearing, counsel for Salih offered a lengthy presentation of mitigating evidence, including Salih's relapse into drug addiction and the purported reasons for it, but the Court was not persuaded to lessen his sentence on that basis. Nonetheless, although his habitual offender status made him eligible for two potential life sentences, the Court sentenced Salih to ten years at Level V with 13 days credit for time previously served on one count of burglary, and two years at Level V suspended for six months at Level IV Work Release followed by eighteen months Level III Probation for the second count of burglary.
2. Salih then filed numerous letters and motions with the Court seeking a modification and reduction of his sentence, all of which were rejected. After an evidentiary hearing to ascertain whether Salih was aware of the risks of representing himself, this Court permitted him to proceed with his appeal pro se. On appeal, Salih argued that the restitution order issued by the Commonwealth of Pennsylvania precluded any convictions for burglary in Delaware on double jeopardy grounds. He also asserted that his sentence as a habitual offender constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
While his appeal was pending, Salih filed a petition for a writ of certiorari to the Delaware Supreme Court on May 17, 2007. In re Salih, 929 A.2d 784, 2007 WL 1452724 (Del. May 17, 2007) (Table). The Supreme Court denied the petition. Id.
3. The Supreme Court rejected both arguments, finding that Salih's voluntary plea agreement amounted to a waiver of any errors or defects that occurred before his agreement. The Supreme Court further held that since Pennsylvania admitted it had no jurisdiction over Salih's crimes, and Salih was not charged or convicted in Pennsylvania, there could be no double jeopardy violation. The Supreme Court also rejected Salih's claim that his guilty plea was involuntary, finding that the record demonstrated that Salih's counsel made a lengthy presentation of the mitigating factors to the Superior Court, that Salih had knowingly, voluntarily, and intelligently waived his trial rights, and that he was fully aware of his potential exposure as a habitual offender.
Hall v. State, 937 A.2d 139, 2007 WL 3170467, at *1 (Del. Oct. 30, 2007) (Table).
Id.
Id. at *2.
4. After filing numerous requests for modification, all of which were denied, Salih filed this, his first motion for postconviction relief. In it, he raises six bases for relief. First, Salih claims that his counsel was ineffective for failing to investigate the defense of involuntary intoxication, resulting from his drug relapse and use of interferon and narcotic pain medication. Second, Salih argues that his counsel was ineffective for failing to object to his indictment on the basis that the Court's use of the name "Cecil Hall," which he legally changed to Salih, is "religiously offensive to him and . . . should vitiate the indictment." Third, Salih argues that the habitual offender statute is unconstitutional because it creates a conclusive presumption of incorrigibility. Specifically, Salih contends that three or more prior convictions may establish a rebuttable presumption of incorrigibility for a defendant, but a conclusive presumption that a defendant is incorrigible is unconstitutional. Fourth, Salih submits that his counsel was ineffective because the Public Defender's Office has overwhelming caseloads that precluded effective representation. In support of this argument, defendant relies upon a News Journal newspaper article discussing the Public Defender's caseload, but he makes no mention of how this situation may or may not have affected his attorney. Fifth, Salih again contends that double jeopardy precludes his Delaware convictions. Finally, Salih maintains that his sentence exceeds the statutory maximum and is barred by the doctrine of res judicata and by the case of Apprendi v. New Jersey.
Salih initially filed this motion as a "Motion to Amend Motion for Correction of Sentence by Adding a Claim Pursuant to Superior Court Criminal Rule 61." Salih also filed the appropriate paperwork for a motion for postconviction relief. On March 3, 2008, Salih sought to add three more claims, some of which are duplicative of other claims. Docket 79. For purposes of this motion, the Court will consider Salih's additional claims.
Docket 69.
530 U.S. 466 (2000).
5. In response, counsel for Salih denies that his representation was ineffective. He submits that he discussed the strengths and weaknesses of Salih's case, including the physician's report, in great detail with him and concluded that a defense of involuntary intoxication was inapplicable. Counsel further contends that Salih admitted in court documents and to the presiding judge that he was known as Cecil L. Hall, Cecil Hall, Cecil LaRoy Hall, Salih, and Salih Hall, thus precluding any objection to the indictment on the basis of his name change.
Counsel submitted his response before Salih added three additional claims to his motion. Since all three additional claims have been addressed by the Supreme Court, the Court will proceed to rule on them.
6. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
7. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply "to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
8. Salih has failed to overcome the procedural bars to post-conviction relief. Although this is Salih's first postconviction motion, and was filed four months after the Supreme Court's final order of conviction, he did not assert in his appeal that the involuntary intoxication defense was applicable to him, that the habitual offender statute was unconstitutional, or that his conviction was barred by the doctrine of res judicata. Moreover, this Court will not consider his double jeopardy claim because the Supreme Court has formerly adjudicated that claim and found it to be without merit. Thus, unless Salih can establish an exception to the procedural bars the Court cannot consider the merits of his motion.
Hall, 937 A.2d 139, 2007 WL 3170467 at *1.
9. A claim of ineffective assistance of counsel is "a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding." Moreover, consideration of his constitutional challenge to the habitual offender statute is warranted "in the interest of justice." Accordingly, the Court will address the remaining five claims of Salih's motion.
State v. Morla, 2007 WL 2566012, at *3 (Del.Super.Ct. Aug. 30, 2007).
10. To evaluate Salih's ineffective assistance of counsel claims, the Court applies the two-part test of Strickland v. Washington. Under Strickland,
446 U.S. 668 (1984).
"the defendant must show that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." In applying the two-part Strickland test to a defendant's claim, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
11. Salih's claim that his counsel was ineffective for failing to discuss the defense of involuntary intoxication with him or raise it before the court is unavailing. Section 423 of Title 11 of the Delaware Code states:
In any prosecution for an offense it is a defense that, as a result of intoxication which is not voluntary, the actor at the time of the conduct lacked substantial capacity to appreciate the wrongfulness of the conduct or to perform a material element of the offense, or lacked sufficient willpower to choose whether the person would do the act or refrain from doing it.
Despite Salih's belief that he could raise involuntary intoxication as a defense, the report upon which he relies, authored by Dr. Stephen Mechanik, explicitly rules out that possibility:
Although Mr. Hall's Mood Disorder substantially affected his thinking, feeling, and behavior, there is no evidence that it caused Mr. Hall not to know the nature and quality of the acts he was doing or not to know that what he was doing was wrong. . . . Mr. Hall was not "intoxicated" with interferon at the time of the conduct charged. His mental state would not be consistent with a finding of involuntary intoxication. It is likely that Mr. Hall was under the influence of opiates at the time of the charges. However, if Mr. Hall was intoxicated at the time of the conduct charged, this would not meet the criteria for a finding of involuntary intoxication. . . . In any case, the available evidence indicates that Mr. Hall's memory and other cognitive problems that were part of his Mood Disorder did not cause him to be unable to form the intent to commit those crimes. . . .
Docket 78, Ex. A.
Moreover, counsel's sworn statement, as well as the colloquy at Salih's guilty plea, indicate that he reviewed the report from Dr. Mechanik, spoke with Salih about the strengths and weaknesses of his case, and ultimately determined that involuntary intoxication was inapplicable because of the lack of evidence supporting the defense. As a result, Salih has failed to show that his counsel's representation fell below an objective standard of reasonableness.
Specifically, Salih informed the Court that counsel had given him satisfactory advice. Plea Tr. at 6:21-7:6.
12. Similarly, Salih cannot establish that his plea would have been different had the defense been offered. The record indicates that Salih's attorney made a lengthy presentation of mitigating evidence, including his relapse into drug addiction, in an attempt to persuade the sentencing judge to give him a lighter sentence. Even if the Court had been presented with the defense of involuntary intoxication, it would have been rejected because there is no factual basis to support its use in Salih's case. Notably, the same evidence of Salih's interferon use upon which he relies to argue that he was involuntarily intoxicated was before the judge at sentencing. Significantly, at his plea colloquy, Salih admitted that he was guilty of the offenses for which he was charged. Thus, Salih's plea would not have changed had counsel offered the defense.
Id. at 16:11-17:13. In fact, Salih explicitly informed the Court that he had no questions about his plea but only wanted to offer mitigating evidence. Id. at 14:10-21. That evidence was ultimately offered by Salih's counsel.
13. Salih's second claim of ineffective assistance of counsel is similarly unavailing. Despite his claim that his counsel was ineffective for failing to seek dismissal of the indictment based on his name change, Salih informed the Court that he was Cecil Hall and that the Court could refer to him by that name:
The Court: Sir, are you Cecil Hall?
The Defendant: No, your Honor. My name has actually been changed. It's Salih through the Court of Common Pleas, but I guess they indicted me under that name.
The Court: All right. The name we have is Cecil Hall, and is that adequate for our proceedings today, if I address you as Mr. Hall?
The Defendant: It's not actually my name, but I'm willing to respond to it, yes, sir.
Id. at 4:7-16.
Salih also referred to himself as "Salih AKA Cecil Hall" throughout his correspondence with his attorney. At no time did Salih object to being called Cecil Hall. Thus, counsel's decision to refrain from objecting to the indictment was reasonable. Moreover, even if counsel had objected to the indictment, the outcome would not have been different because Salih's explicit permission to the Court to use the name "Mr. Hall" indicates that the State indicted the appropriate individual. As a result, Salih has failed to establish that his counsel was ineffective.
Docket 78, Ex. B.
14. Salih's third claim, that the habitual offender statute is unconstitutional, is creative but must be rejected. As an initial matter, Salih knowingly and voluntarily admitted to being a habitual offender at his plea colloquy and did not object then to the constitutionality of the statute:
The Court: The State has indicated that at the time of sentencing it's going to seek to have you declared as a habitual offender under Delaware law that would allow for enhanced sentenced of habitual offenders. Do you understand that?
The Defendant: Yes.
The Court: The plea agreement states that you admit, based on your understanding of the habitual offender law and your own understanding of the criminal history that you have, that you are eligible for sentencing as a habitual offender; is that correct?
The Defendant: Yes, sir.
Plea Trans. at 8:23-9:12.
Although Salih later questioned the habitual offender statute, he plainly informed the judge that he understood what it meant:
The Court: All right. So you now fully understand the sentencing under the habitual offender statute as it relates to these two offenses?
The Defendant: Yes.
The Court: All right. Do you have any other questions about potential sentencing or penalties that you're facing in connection with these offenses?
. . .
The Defendant: Yes; but I will speak to him [my attorney] about it. Not regarding the plea, but the only questions that I have is [sic] about giving information to the Court and to the presentence that outline mitigating information. Nothing regarding the plea.
The Court: All right. So in terms of understanding the potential penalties you're facing, you're satisfied that you fully understand then?
The Defendant: Yes, I am.
Id. at 14:5-15:3.
The Supreme Court also explicitly informed him that he could make the argument on direct appeal that he now raises by this motion:
In his petition for a writ of certiorari, Hall contends that title 11, section 4214(a) is unconstitutionally vague and otherwise inapplicable as to him and other chemically dependent criminal defendants. Hall seeks an order vacating both the December 1, 2006 sentence and his status as a habitual offender. . . . Hall can challenge the constitutionality and application of section 4214(a) as part of his current direct appeal.
In re Salih, 929 A.2d 784, 2007 WL 1452724, at *1 (Del. May 17, 2007) (Table).
Salih, however, did not raise this argument in his direct appeal to the Supreme Court. Because he is now challenging the habitual offender statute in this motion, rather than in his direct appeal or before entering his guilty plea, he has waived that argument by failing to raise it on previous occasions.
Hall, 937 A.2d 139, 2007 WL 3170467, at *1 (citing Downer v. State, 543 A.2d 309, 312-13 (Del. 1988)); see also Super. Ct. Crim. R. 61(i)(3)("Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred. . . .").
15. Even assuming that he had not waived the issue, his argument is still unavailing. Salih is correct that conclusive presumptions are unconstitutional in criminal proceedings. The habitual offender statute, however, has been upheld as constitutional:
Subsection (b) of the Delaware recidivist statute is narrowly directed towards repeat offenders of crimes involving death or danger to human life who, having been exposed to the correctional system on two separate and distinct occasions, have proven that they cannot peacefully coexist with society. . . . Our legislature has concluded that persons who qualify for punishment under 11 Del. C. § 4214(b) are incorrigible. . . . The Delaware legislature's determination to draw the line as it did under 11 Del. C. § 4214(b) is justifiable because of the violent nature of the crimes involved. We defer to that determination.
Williams v. State, 539 A.2d 164, 180 (Del. 1988), cert. denied, 488 U.S. 969 (1988) (citations omitted).
As the Supreme Court explained in Williams v. State, the Delaware State Legislature's determination to classify certain individuals as habitual offenders is reasonable. The Superior Court cannot disturb a decision of this state's highest court, upholding the same statute Salih now challenges, but instead is duty-bound to apply it. The United States Supreme Court has upheld even more severe habitual offender statutes, noting that a State legislature may, if it chooses, place upon the defendant "the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." In light of the decisions of the United States Supreme Court and the Delaware Supreme Court that have upheld habitual offender statutes as constitutional, Salih's claim that Delaware's statute is unconstitutional is hereby rejected.
Id.; see also Ewing v. California, 538 U.S. 11, 30 (2003) (upholding a state habitual offender statute that "reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated").
See, e.g., Shea v. Matassa, 2006 WL 258312, at *5 (Del.Super.Ct. Jan. 10, 2006), aff'd, 918 A.2d 1090 (Del. Feb. 1, 2007) (refusing to overrule case precedent from the Supreme Court because "[t]o find otherwise would be a dangerous usurpation, not only of State Supreme Court authority, but also of the legitimate right of elected legislatures to create causes of action by statute.").
Ewing, 538 U.S. at 30 (citing Rummel v. Estelle, 445 U.S. 263, 284 (1980)).
The Delaware Supreme Court has also held that a defendant's sentence does not violate the Eighth Amendment as long as the sentence imposed is not disproportionate to the crime. Crosby v. State, 824 A.2d 894, 908 (Del. 2003). The Supreme Court has already considered Salih's sentence and did not find it to be disproportionate. Hall, 937 A.2d 139, 2007 WL 3170467 at *2. As a result, the Court finds no constitutional infirmity with Salih's sentence under the habitual offender statute.
16. Nor does Apprendi v. New Jersey compel a different result. In Apprendi, the United States Supreme Court held that any fact — other than a prior conviction — that exposes the defendant to the possibility of a sentence beyond the statutory maximum for the crimes on which he was convicted must be submitted to a jury to be proved beyond a reasonable doubt. In contrast, and as explicitly permitted by Apprendi, status as a habitual offender permits a judge to consider prior convictions in determining an appropriate sentence. And, unlike the defendant in Apprendi, Salih was not sentenced beyond the statutory maximum. In fact, at the plea colloquy, the judge emphasized to Salih that he was facing as much as two consecutive life imprisonment sentences because of his habitual offender status and the nature of the crimes he was admitting. Thus, the holding in Apprendi is inapplicable to Salih's case.
Apprendi, 530 U.S. at 490.
As previously noted, the Supreme Court also determined that Salih's sentence was appropriate. Hall, 937 A.2d 139, 2007 WL 3170467 at *2.
17. Salih's fourth claim is that his counsel was ineffective because the Public Defender's Association is overworked. In support of this contention, Salih cites an article from the Delaware News Journal in which it is reported that public defenders in Delaware are handling a greater number of cases than national standards establish and that they may have to turn down cases in the future. Salih cites no evidence suggesting that a potentially burdensome caseload rendered his own counsel ineffective.
Docket 74.
18. Since Salih lacks standing to bring this claim, the Court rejects it. A criminal defendant lacks standing to assert the rights of a third person unless his own rights were violated. Although Salih complains that his counsel was ineffective, and although he argues that the Public Defender's Office is ineffective, he has not presented any specific violation of his rights that would permit him to raise this claim on behalf of the Public Defender's Office. As a matter of fact, the record indicates that Salih's attorney did discuss his case at length with him, hired a physician to conduct a medical examination of him, negotiated a plea agreement in which the State dismissed numerous other charges, and provided a lengthy presentation of mitigating evidence to the sentencing judge. Because the Court has already rejected Salih's numerous arguments in support of his claim that his counsel's representation was ineffective, Salih can only make the instant argument if he demonstrates some other injury to his rights. In this case, Salih has made no showing that his attorney had a burdensome caseload or, more importantly, that the caseload prejudiced his own representation. Absent a showing of injury to his rights, Salih has no standing to raise this argument.
Webster v. State, 567 A.2d 424, 1989 WL 149483, at *1 (Del. Nov. 8, 1989) (Table).
On a more fundamental level, if Salih felt that his attorney's representation was impaired because of the number of cases handled by the Public Defender's Association, Salih had the option to forego counsel and represent himself. Although Salih ultimately decided to proceed pro se on his direct appeal to the Supreme Court, Salih informed the Court that he was satisfied with the advice from his attorneys during his plea colloquy. Plea Trans. at 6:21-7:6. More importantly, Salih cannot show any prejudice to his rights because the public defender did not coerce or force him to accept his plea agreement and did not promise him any sentence. In the end, Salih knowingly and voluntarily entered his plea. Id. at 14:22-17:18.
19. Salih's fifth and final claim, that his Delaware convictions are barred by the doctrine of res judicata, is also without merit. Under the doctrine of res judicata, where there has been a final judgment on the merits, no further claims based on the same cause of action may be brought by the same parties or their privies. The Delaware Supreme Court has already ruled that there was no final judgment on the merits in Pennsylvania because he was not charged with or convicted of any Delaware crimes in Pennsylvania, nor was he subject to criminal punishment there. Because there was no final judgment on the merits in Pennsylvania, the doctrine of res judicata is inapplicable.
Hercules Inc. v. AIU Ins. Co., 783 A.2d 1275, 1278 (Del. 2000).
Hall, 937 A.2d 139, 2007 WL 3170467, at *1.
20. For all of the foregoing reasons, Salih's motion for postconviction relief is hereby DENIED.
IT IS SO ORDERED.