Opinion
Cr. A. No. VN96-04-0043R1, VN96-04-0046R1, I.D. No. 9603018349.
Submitted: August 31, 2000.
Decided: September 19, 2000.
Upon Defendant's Motion for Postconviction Relief. Summarily Dismissed.
ORDER
This 19th day of September, 2000, upon consideration of the defendant's motion for postconviction relief pursuant to Superior Court Criminal Rule 61 and the record in this case, it appears that:
(1) On February 11, 2000, the Court found Defendant, Elwood Harris, guilty of violating the conditions of his probation in the above-captioned charges. The Court, therefore, revoked Harris's probation and sentenced him to Level 5 incarceration for a total of one year.
(2) Harris has now filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. Harris lists as grounds for relief in his petition that his attorney at the violation of probation hearing was ineffective and that the Court acted improperly by suppressing evidence favorable to Harris. Under established procedure, the Court must first determine whether Harris has met the procedural requirements of Superior Court Criminal Rule 61(i) before the Court may consider the merits of the postconviction relief claims. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990). This is Harris's first motion for postconviction relief and the Court determines that none of the procedural bars listed in Rule 61(i) are applicable. Therefore, the Court may consider the merits of Harris's motion.
(3) Harris's first ground for relief is that he told the Court to order certain medical records from Gander Hill Prison prior to the hearing and the Court failed to so. According to Harris, these records would have shown that he was in the hospital for five weeks. Harris argues that his probation officer knew of his hospitalization, but filed a violation report anyway. The Court finds Harris's first ground for relief to be without merit. A review of the transcript of Harris's violation of probation hearing shows that Harris did not contest the violation of probations cited by his probation officer, which consisted of failing to report on numerous occasions, reporting on the wrong date, testing positive for cocaine use, and failing to be at his residence during curfew checks on numerous occasions. As a result, any alleged failure by the Court to consider Harris's medical records did not affect the Court's determination that Harris had violated the terms of his probation.
(4) Harris's second ground for relief is ineffective assistance of counsel. Harris claims that the public defender who appeared at his violation of probation hearing "kept asking him to take a plea for nothing" and did not ask the Court about his medical records. The Court finds that Harris's second ground for relief also clearly is without merit. Harris has the burden to show that his attorney's conduct did not meet reasonable professional standards and that such conduct was prejudicial to him. Strickland v. Washington, 466 U.S. 668 (1984). Harris has failed to establish the second prong of this standard even if the Court were to assume that the public defender's conduct was somehow unreasonable.
(5) Harris's argument basically, is not that he did not fail to report to his probation officer, but that he had an excuse. Again, Harris did not contest the violations listed by the probation officer. As a result, the Court's determination that Harris had violated the terms of his probation was not affected by any alleged actions by the public defender. The Court notes that the public defender stated to the Court that Harris claimed that he had been hospitalized during his probationary period.
Therefore, because the Court finds that it is plain from the Motion for Postconviction Relief and the record in this case that Harris is not entitled to relief, the motion is hereby SUMMARILY DISMISSED.
IT IS SO ORDERED.
DATE: September 19, 2000 Carl Goldstein, Judge oc: Prothonotary Pc: Elwood Harris