Opinion
ID No: 0004019796.
Date Submitted: September 26, 2003.
Date Decided: September 29, 2003.
Upon Defendant's Motion for Postconviction Relief: DENIED. Cr.A. No: PN00-05-0674R1, IN00-05-0676R1, IN00-05-0677R1, 1N05-05-1774R1, 1N05-05-1775R1.
ORDER
Upon review of Movant Kamil Ifriqi's ("Defendant") Motion for Postconviction Relief and the record, it appears to the Court that:
1. Defendant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on August 12, 2003. In support of his motion, Defendant sets forth three grounds for relief: (1) his confession and guilty plea were coerced; (2) his sentence is illegal; and (3) he was denied the right to effective assistance of counsel.
2. On May 21, 2001, Defendant entered a guilty plea to three counts of Possession of a Firearm During the Commission of a Felony ("PFDCF"), Assault in the first degree and Robbery in the first degree. On August 24, 2001, Defendant was sentenced to twenty years at Level V suspended after serving thirteen years for seven years at Level III, suspended after serving two years for five years at Level 11.
3. The Delaware Supreme Court has held that in reviewing motions for postconviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. Pursuant to Rule 61(i), claims for relief must be brought within three years of the conviction becoming final. Any ground for relief that was formerly adjudicated, whether in a proceeding leading to the judgment of conviction, in an appeal, or in a postconviction proceeding, is thereafter barred, unless reconsideration of the movant's claim is warranted in the interest of justice. This Court will not address Rule 61 claims that are conclusory and unsubstantiated.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Flamer v. Suite, 585 A.2d 736, 747 (Del. 1990).
DEL. SUPER. CT. GRIM. R. 61(i)(1).
DEL. SUPER. CT. GRIM. R. 61(i)(4).
See Younger v. State, 580 A.2d 552, 555 (Del. 1990); State v. Conlow, Del. Super., Cr.A. No. 1N78-09-0985R1. Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr.A. No. 1N87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
4. Defendant's first ground for relief is that his confession and guilty plea were coerced. Defendant filed a motion to suppress his confession and a hearing was held on February 5, 2001. On February 13, 2001, the Court found that Defendant did not knowingly and intelligently waive his Miranda Rights and entered an order granting Defendant's motion to suppress. Accordingly, the Court declines to address Defendant's assertion that his confession was coerced pursuant to the former adjudication proscription set forth in Rule 61(i)(4).
State v. Ifriqi, 2001 WL 1 67851 (Del.Super.)
See DEL. SUPER. CT. GRIM. R. 61(i)(4).
5. In support of his argument that his guilty plea was coerced, Defendant argues that his counsel diminished his resolve and he therefore, submitted to her "incessant urgings" to accept the plea offer. Defendant entered his guilty plea on May 21, 2001 to Robbery 1st, Assault 1st, and three counts of PFDCF. On the Truth-In-Sentencing guilty plea form, Defendant indicated that: (1) he had freely and voluntarily decided to plead guilty to the charges listed in his written plea agreement; (2) his attorney, the State, or anyone else had not threatened or forced him to enter his plea; and, (3) he was satisfied with his lawyer's representation and that she had fully advised him of his rights and of his guilty plea. This Court has held that in the absence of clear and convincing evidence to the contrary, a defendant is bound by his signed statement on a guilty plea form. The Court also conducted a thorough colloquy in open court prior to accepting Defendant's guilty plea. Consequently Defendant's contention that he was coerced into taking State's plea offer is without merit.
State v. Britt, Del. Super., Cr. A. No. 1N92-04-0542R1, Goldstein, J. (Sept. 26, 1995) (ORDER).
6. In Defendant's second ground for postconviction relief, he alleges that his sentence is illegal. Defendant claims that he was improperly sentenced for three counts of PFDCF because he only pled guilty to two independent felonies. As a result, Defendant indicates that only two of the PFDCF counts remained viable in light of his plea and that the third count has no "legal justifiability." Defendant was indicted on the following charges: two counts of Attempted Murder; Robbery in the first degree; Aggravated Menacing; four counts of Possession of a Firearm During the Commission of a Felony; and, Wearing a Disguise During the Commission of a Felony. Defendant pled guilty to three counts of PFDCF, Assault in the first degree and Robbery in the first degree. The remaining charges in the indictment were nolle prossed pursuant to the plea agreement. The Delaware Supreme Court has held that in the case of a guilty plea, the fact that a nolle prosequi is entered on the underlying felony charge does not prevent a defendant's conviction and sentence on a deadly weapon charge. Therefore, Defendant's second ground for relief is without merit.
DEL. CODE ANN. tit. 11. § 531 (1974).
DEL. CODE ANN. tit. 11. § 832 (1974).
DEL. CODE ANN. tit. 11 Del. C. § 602 (1974).
DEL. CODE ANN. tit. 11 Del. C. § 1447A (1974).
DEL CODE ANN. tit. 11, § 1239 (1974).
Fletcher v. State, 435 A.2d 1040 (Del. 1981). See also Elder v. State, 1996 wL 145812 (Del. 1996) (dismissing defendant's argument that his weapon conviction cannot stand because the underlying felony was nolle prossed).
7. In order to prevail on a claim of ineffective assistance of counsel, Defendant must satisfy the two-part test set forth in Strickland v. Washington. Thus, Defendant must first show that his attorney's conduct fell below that of reasonable professional standards, and second, that such conduct caused him actual prejudice. "A defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal." In the case of a guilty plea, the United States Supreme Court has held that the second prong of the Strickland test becomes whether the defendant has shown 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."
466 U.S. 668, 687 (1984).
Strickland, 466 U.S. at 687, 688.
Id. at 687, 693.
Walls v. State, Del. Supr., No. 59, 1995, Holland, J. (Jan. 4, 1996) (ORDER) at 7; citing Younger, 580 A.2d at 556.
Hill v. Lockhart, 474 U.S. 52, 59 (1985). See Albury v. State, 551 A.2d 53, 58 (Del. 1988).
8. Defendant claims that counsel was ineffective because he was ill-advised concerning his potential success at trial. In support of his argument, he claims that his counsel failed to file additional suppression motions that he requested concerning physical evidence and conflicting eyewitness testimony. Defendant also refers to the argument that he set forth in ground one of his motion alleging that counsel coerced him to accept the plea agreement. The Court has already addressed Defendant's allegation of coercion earlier in this opinion.
9. On September 26, 2002, counsel submitted an affidavit as requested by the court pursuant to Rule 61(g)(2). Counsel indicates that she interviewed Defendant on sixteen (16) occasions in addition to representing him at his various court dates. She also filed the appropriate suppression motion that was granted by this Court. Prior to advising Defendant of his unlikelihood of success at trial, counsel reviewed the following: (1) police reports and medical records; (2) the videotaped statements of Defendant made while speaking with Detective Brian Cross; (3) the preliminary hearing transcript; and, (4) the evidence in connection with the case with Deputy Attorney General, Stuart Sklut. Counsel also spoke with Defendant's aunt and engaged in multiple conversations with the psychoforensic evaluator within the Office of the Public Defender and the federal prosecutor in New Jersey who advised that charges would be filed against Defendant for unrelated charges. Based upon the evidence presented, the Court finds that Defendant has not satisfied his burden pursuant to the standards set forth in Strickland. Counsel was thorough in her representation of Defendant and made appropriate recommendations with respect the plea offer extended in this case.
DEL. SUPER. CT. CRIM. R. 61(g)(2) provides: "[i]f the motion alleges ineffective assistance of counsel, the judge may direct the lawyer who represented the movant to respond to the allegations."
State v. Ifriqi, 2001 WL 167851 (Del.Super.) (holding that under the totality of the circumstances, Defendant did not knowingly and intelligently waive his Miranda rights given the degree of Defendant's obvious intoxication).
For the above stated reasons, Defendant's motion for post-conviction relief is DENIED.