Opinion
ID No. 9809019760, Cr. A. No. IN98-10-0243R1, IN98-10-0251R1, IN98-12-1139R1.
August 11, 2004.
ORDER
This 11th day of August, 2004, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, it appears to the Court that:
1. On June 13, 2002, while on trial for offenses stemming from two separate assaults, Defendant William Jay Hammons entered into a plea agreement with the State pursuant to Superior Court Criminal Rule 11(e)(1)(c). For the first incident, Hammons pled guilty to attacking and raping a college student while she was walking near the University of Delaware campus in Newark. For the second incident, Hammons pled guilty to attacking a woman near her Newark home, allegedly for the purpose of raping her. In return for his plea of guilty to one count each of Rape in the Second Degree, Assault in the Third Degree, and Unlawful Imprisonment in the First Degree, the State dismissed eight other criminal charges in the indictment and recommended a sentence of 23 years. This Court engaged in an extensive colloquy to determine whether Hammons' plea was willful, knowing and voluntary and, satisfied that it was, accepted the guilty plea and sentenced Hammons to 23 years imprisonment.
2. Hammons now brings this Motion for Post Conviction Relief pursuant to Superior Court Criminal Rule 61, alleging that ineffective assistance of counsel deprived him of various constitutional rights and thus vitiates the required willful, knowing and voluntary quality of his guilty plea. Specifically, Hammons claims that his counsel, Andrew Witherell, Esquire, intentionally undermined his defense in order to coerce him to plead guilty, that Witherell refused to properly communicate and advise him on the consequences of his guilty plea, and that he can prove his innocence. In short, these claims lack merit and warrant summary dismissal.
3. Hammons' coercion claim rests primarily upon his counsel's trial strategy. First, Hammons faults Witherell's decision to acknowledge that Hammons was arrested carrying a knife and that the first victim would testify that she was threatened with a pointed object that could have been a knife, rather than objecting to any mention of a knife. Second, Hammons complains that Witherell did not subpoena the State's DNA expert, but rather entered into a stipulation with the State that the uncontested DNA evidence would be brought out through other witnesses and the expert report. Third, Hammons alleges that Witherell failed to sufficiently investigate and discuss a different rape case where the perpetrator had used similar modus operandi but was described with some traits not shared by Hammons. Finally as a substantive matter, Hammons alleges that parts of the first victim's statement were withheld from him. All of this alleged conduct, claims Defendant, indicates that Witherell intended to force him to plead guilty.
Defendant's Amended Memorandum of Law In Support of Rule 61 Motion for Post Conviction Relief (Def. Op. Br.) offers several variations on this theme: Defense counsel mentioned in opening statement that the first victim would likely testify that she was raped at knifepoint; Defense counsel did not object to State making similar statement in its opening argument; and Defense counsel did not object to admission of the knife, photos of the knife, or testimony from the police about the knife's length.
Hammons complaint here is two-fold: (1) Witherell did not subpoena the investigating officer in that case who had since moved out of state and could not be located; and (2) Witherell did not enter the report of that case into evidence because the victim's description contained both exculpatory statements (such as identifying the assailant as age 19 to 25 when Hammons was 36) and damaging statements (describing assailant as oval faced, deep voiced, and using copious profanity, all of which could describe Hammons).
4. A claim for ineffective assistance of counsel is far more difficult to prove than the frequency of its appearance in this court would indicate. Strickland v. Washington established the two-part test that a defendant must show that (1) counsel's conduct fell below an objective standard of reasonableness; and (2) the defendant suffered prejudice such that, but for the unprofessional conduct, there is a reasonable probability the result of the proceeding would have been different. The defendant bears the burden of overcoming the strong presumption that counsel's conduct was reasonable or could have been considered sound trial strategy at the time.
466 U.S. 668 (1984).
Id. at 689.
Hammons has not even come close to meeting this burden. Witherell's conduct concerning the knife was legitimate trial strategy done in Hammons' interest; trying to confront and explain damaging evidence at the beginning of a case and avoiding further drawing the jury's attention to obviously admissible statements and evidence by not objecting to them is normal trial practice well within the standard of a reasonable attorney's conduct.
Hammons mistakenly believes that references to the knife he was carrying when arrested were inadmissible "other crimes" evidence, specifically, the crime of carrying a concealed deadly weapon. This is simply incorrect; pocketknives are expressly exempted from the definition of "deadly weapon" in 11 Del. C. § 222. Hammons also seems to have wanted Witherell to make an objection for improper foundation, which would have simply led to the officers and victim testifying about the knife in even more detail. Either way, it is up to counsel, not the Defendant, to decide when to object.
Witherell's decisions not to subpoena the DNA expert and failure to introduce evidence about the uncharged rape were immaterial because Hammons pled guilty in the middle of the State's case, leaving Witherell no opportunity to use such evidence. Further, it is not at all clear that these decisions were unsound trial strategy at the time they were made. Deciding to address the uncontested and exculpatory DNA evidence in a confrontational fashion during cross-examination of the police officers, thereby undermining other damaging testimony by those officers, could well have been more effective than a dry expert witness science lecture. The jury would have heard the evidence in either case. The uncharged rape involved both damaging and exculpatory evidence, which had a very real chance of confusing and inflaming the jury. At the very least, discussing the uncharged rape would have provided the jury with obviously prejudicial information that Hammons was a suspect in other Newark area rapes. A decision to avoid such disclosure is simply nowhere near misconduct on the part of his counsel. To the contrary, it was a wise trial decision.
Finally, Hammons complaint that the State did not turn over the first victim's statement is unfounded. The testimony and evidence unanimously indicate that the victim began an oral statement to police officers, then broke down, after which she concluded with a one-page writing. Both the police report, summarizing the oral part of the statement, and the victim's one-page written statement were turned over to Hammons, apparently numerous times. Nothing indicates that there was other Brady or § 3507 material; Hammons' protests to the contrary are merely empty, unsupported conclusions.
Hammons repeatedly alleges that the State, Witherell, or both are withholding DNA tests of other suspects that prove someone else raped the first victim. Obviously, there is no evidence that such tests exist.
5. Hammons' claim that Witherell did not properly communicate with him and thus forced him to plead guilty is equally frivolous. Hammons complains that Witherell did not read him the elements of Rape in the Second Degree, apparently forgetting that this Court read him the entire charge before accepting his plea. Hammons nitpicks that no one advised him that plea agreements were pre-trial motions that are heard later only for good cause, a procedural issue of no possible relevance in this context. Hammons also quibbles that Witherell should have advised him about the availability of nolo contendre pleas. Witherell had no obligation to do so in this case for the simple reason that no such plea was offered or available.
Transcript Of Plea Colloquy/Sentencing Proceedings (June 13, 2002) attached as Exhibit A to State's Memorandum Of Law Opposing Defendant's Motion For Post Conviction Relief (Pros. Ans. Br.) at * 18-19.
Hammons does make two allegations that at least require more than one sentence to rebut: (1) that Witherell changed his answers on the plea form; and (2) that Witherell failed to advise him that his sentence for these crimes would run consecutively with his sentence for a previous rape conviction. Even the briefest analysis, however, shows these claims to be as insubstantial as the rest. Question #3 on Hammons' plea form is marked both "yes" and "no." Nothing but Hammons' word indicates that Witherell checked both boxes, and Hammons stated the exact opposite during his colloquy with this Court. On the concurrent sentencing issue, even if this Court made the leap of faith to conclude that Witherell did not advise Hammons of the effect of his plea (Hammons points to no evidence showing so), nothing suggests that he was not advised when awarded probation that a new crime would result in reincarceration under his original sentence.
Pros. Ans. Br. Ex. A at *8. ("The Court: Are those your answers to the questions? Defendant: Pardon me? The Court: Are those your answers to the questions on that form? Defendant: Um. The Court: Where it says 'yes' or 'no.' Defendant: Yes Ma'am").
7. Finally, Hammons' argument of factual innocence cannot support this motion. If it is an "insufficiency of the evidence" argument, it is barred by Hammons' failure to raise it during trial and by his pleading guilty in the middle of the State's case, thus depriving the State of an opportunity to offer sufficient evidence. To the extent that it is meant to satisfy the prejudice element of the Strickland test, Hammons' failure to prove that Witherell's conduct fell below an objective standard of reasonableness precludes him from getting that far.
Superior Court Rule 61(i)(3).
8. In summary, Hammons has failed to show any irregularity at all regarding his plea agreement, let alone enough to establish ineffective assistance of counsel. Instead, all evidence suggests that Hammons made a knowing, intelligent and voluntary choice to plead guilty because he actually was guilty and he wanted some hope of ever leaving prison. Now, in hindsight, he regrets that he did not roll the dice. This procedure is not designed to provide a second chance for a defendant who has openly admitted his guilt and now regrets his predicament. Defendant's Motion For Post Conviction Relief is hereby DENIED.