Opinion
ID# 9507006137
Submitted: December 28, 2000
Decided: March 13, 2001
Upon Defendant's Motion for Postconviction Relief. DENIED.
Mark H. Conner, Esquire, Deputy Attorney General, Department of Justice Wilmington, Delaware, Attorney for the State.
Daroun Jamison, Defendant, Delaware Correctional Center, Smyrna, Delaware, pro se.
MEMORANDUM OPINION
INTRODUCTION
Daroun Jamison ("Defendant") was indicted for two counts of Attempted Murder First Degree, one count of Conspiracy First Degree, three counts of Possession of a Firearm During the Commission of a Felony, two counts of Possession of a Deadly Weapon by a Person Prohibited, one count of Assault First Degree and one count of Possession of a Destructive Weapon. Pursuant to a Superior Court Criminal Rule 11(e)(1)(C) plea agreement, Defendant subsequently pled guilty to one count of Attempted Murder First Degree and to one count of Possession of a Firearm During the Commission of a Felony. Thereafter, Defendant was sentenced to 30 years at Level 5, suspended after 18 years for probation, pursuant to the Rule 11(e)(1)(C) plea agreement.
Defendant then filed this pro se Motion for Postconviction Relief on July 21, 1999 alleging three grounds of ineffective assistance of counsel. The State has filed a Response, Defendant's original appointed Assistant Public Defender, Nancy J. Perillo, Esquire, ("Counsel") has filed a Response Affidavit to Defendant's allegations, and Defendant has filed a Reply to Counsel's Response Affidavit and to the State's Response.
Defendant had filed a Motion for Reduction of Sentence on September 4, 1996, which was denied on September 6, 1996. On February 26, 1998 Defendant filed a Motion for Modification of Sentence, which was denied on March 5, 1998. On March 16, 1998 Defendant filed a Motion for Reconsideration for Modification of Sentence which was denied on March 24, 1998. Thereafter, Defendant filed this Motion for Postconviction Relief on July 21, 1999. This Court denied that motion as procedurally barred pursuant to Super. Ct. Crim. R. 61(i)(1) deeming Defendant's Motion for Postconviction Relief barred as surpassing the three year statute of limitations to file a Motion for Postconviction Relief The Supreme Court of Delaware reversed that decision on May 15, 2000, holding that the motion was in fact timely, and remanded the case to this Court for further consideration of the instant motion.
FACTS AND PROCEDURAL HISTORY
On July 18, 1995, Defendant, who was seventeen years old at the time of his arrest, was indicted by a Grand Jury on two counts of Attempted Murder First Degree, ( 11 Del. C. § 531); one count of Conspiracy First Degree ( 11 Del. C. § 513(1)); three counts of Possession of a Firearm During the Commission of A Felony ( 11 Del. C. § 1447A); one count of Possession of a Destructive Weapon ( 11 Del. C. § 1444); two counts of Possession of a Deadly Weapon by Person Prohibited ( 11 Del. C. § 1448); and one count of Assault First Degree ( 11 Del. C. § 613). The charges resulted from a shooting incident that occurred on August 17, 1995. A codefendant, Roger Hall, was also indicted.
Defendant allegedly fired a 20-gauge sawed-off shotgun at Stephen Brown. Defendant missed Stephen Brown but struck another person, Gilberto Montalvo, in a nearby residence. The bullet lodged in Gilberto Montalvo's left side of his chest and causing serious physical injury. At the Christiana Hospital, Gilberto Montalvo was referred to the Surgical Shock Trauma unit and was listed in critical condition.
On April 8, 1996, Defendant entered into a plea agreement pursuant to Superior Court Criminal Rule 11(e)(1)(C) whereby the State and Defendant agreed to "30 years Level 5 suspended after 18 years for 12 years probation." Defendant voluntarily signed the Plea Agreement and the Truth in Sentencing Guilty Plea Form. The two forms clearly set forth the two charges, Attempted Murder First Degree and Possession of a Firearm During the Commission of a Felony, to which Defendant was to plead guilty.
"The attorney general and the attorney for the defendant. . . may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney general will do any of the following: (C) Agree that a specific sentence is the appropriate disposition of the case." Super. Ct. Crim. R. 11(e)(1)(C).
Defendant's Plea Agreement form of April 8, 1996.
Although Defendant's Motion asserts three separate grounds of ineffective assistance of counsel, all three grounds are essentially premised on the claim that his trial counsel, Nancy J. Perillo, Esquire, failed to investigate the facts and the applicable law of Defendant's case. Defendant's specific allegations are that: (Ground One) "counsel failed to obtain an expert witness that would have been able to prove that the shot fired would not have killed anyone," that (Ground Two) "counsel failed to argue that defendant's actions were only criminal negligence, " and (Ground Three) "counsel failed to argue transferred intent limited [Defendant's] liability to only Assault Third degree." These contentions all allude to Defendant's claim that his trial counsel was ineffective due to the fact Ms. Perillo's investigative measures and her failure to "argue" certain legal theories (to the assigned Deputy Attorney General during plea negotiations) fell below an objective standard of reasonableness.
Defendant's Motion for Postconviction Relief at 3.
Id.
Id.
In response to Defendant's allegations, Defendant's trial counsel submitted a comprehensive twelve page affidavit detailing the facts with respect to her representation of Defendant's prior to and at the time of the plea negotiations. Ms. Perillo's affidavit states that the Public Defender's file for Defendant's case has been purged, but that she has been provided with a copy of all of the police reports in the case as well as Roger Hall's statement to the police. Ms. Perillo also averred that Defendant's recitation of the facts surrounding the shooting incident, as set forth in his Motion for Postconviction Relief, were significantly different than the facts relayed to her by Defendant prior to Defendant's guilty plea in 1996.
Ms. Perillo's affidavit states that during her representation of Defendant in 1996 Ms. Perillo made a request to the Public Defender's Special Investigative Unit to interview all of the defense witnesses in the case and that she specifically requested that particular witnesses be interviewed. Ms. Perillo's affidavit sets forth in great detail the factual investigation done by her and by the Public Defender's Special Investigation Unit prior to the guilty plea.
The witnesses included Devon Ross, Defendant's friend who possessed the 20 gauge shotgun that was recovered by the police; Steven Brown, the intended victim; Marvin Tyler, Defendant's friend to whom a money debt was owed; and Wyvonne Still, a friend of Steven Brown and an eyewitness to the shooting incident.
See Perillo affidavit at pp 3-6, 8.
On June 21, 1996 Defendant was sentenced to 15 years incarceration at Level 5 for the Attempted Murder First Degree charge and to 3 years at Level 5 for the Possession of a Firearm During the Commission of a Felony charge followed by 12 years of probation.
STANDARD OF REVIEW
A claim of ineffective assistance of counsel is governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). A movant must show both "that counsel's representation fell below an objective standard of reasonableness, " and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Since the movant must prove both prongs in order to succeed on an ineffectiveness claim, the failure to prove either will render the claim unsuccessful, and the court need not go on to address the remaining prong. A movant must prove his allegations by a preponderance of the evidence.
The United States Supreme Court stated in Strickland: Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988) (quoting Strickland v. Washington, 466 at 688, 694.
State v. Wright, Del. Super., 653 A.2d 288, 294 (1994).
Delaware courts follow the Strickland approach.
Stevenson v. State, Del. Supr., 469 A.2d 797 (1983).
Courts must also make "every effort. ., to eliminate the distorting effects of hindsight[.]" "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Any inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the 6th Amendment.
Strickland, 466 U.S. at 689.
Id. at 690.
Murray v. Carrier, 477 U.S. 478, 492 (1986).
Ms. Perillo's thorough affidavit maintains that she conveyed to Defendant all of the information she received in pre-trial discovery from the State as well as the conduct and results of the defense investigation. She requested that the Public Defender's Special Investigative Unit interview all of the defense witnesses in the case. Her investigative memo prepared for the Special Investigative Unit refutes any claim that she did not sufficiently investigate the facts and the law of Defendant's case.
Furthermore, the physical evidence of the case also controverts Defendant's present claim that the fired shot was not capable of causing serious physical injury. The sawed-off shotgun used by Defendant was not loaded with .20 gauge birdshot, but rather, it was loaded with .20 gauge Winchester super X3B. The casing that was found at the crime scene, was for a .20 gauge Winchester X3B, not birdshot, as Defendant inaccurately asserts. The Wilmington Police Department recovered the sawed off shotgun and the shotgun contained a .20 gauge super X3B Winchester cartridge. This size shot is a large buckshot made by Winchester to hunt large game animals such as deer and bears.
Affidavit of Sergeant Snowden. Sergeant Snowden is Certified Firearms Training Officer for the Wilmington Police Department. He test fired the weapon used by Defendant in the shooting incident and prepared an affidavit for Ms. Perillo in support of her affidavit.
Sergeant Scott Snowden, a Certified Firearms Training Officer for the Wilmington Police Department test fired the weapon used by Defendant in the shooting incident. In the affidavit prepared for Ms. Perillo in support of her assertions, Sergeant Snowden stated that Defendant fired a Remington Model 1100 LT 20 Special sawed-off Shotgun at Steven Brown and the buckshot pellets fired from that shotgun entered the left side of the victim's chest. Furthermore, Sergeant Snowden stated that a Winchester Super X3B .20 gauge casing was located where the shooting incident had occurred and that the sawed-off shotgun used in the shooting incident was found the following day and was loaded with Winchester Super X3B .20 gauge cartridge.
Id.
Id.
Thus, Defendant's contention that there was no "intent to kill" because the shotgun was loaded with birdshot is an incorrect assessment of the facts. As previously stated, the shot fired from the sawed-off shotgun was a .20 gauge super X3B Winchester which would cause serious physical injury. Furthermore, the victim of the shooting incident, did suffer serious physical injury.
This Court also agrees with Ms. Perillo's response refuting Defendant's second claim that his actions merely constituted criminal negligence. Defendant's claim is without merit. It is highly unlikely that a jury would have found Defendant's actions on the night of the shooting merely "criminally negligent." As Ms. Perillo points out, "firing a sawed-off shotgun loaded with shells containing No. 3 buckshot directly at another person, hardly comports with the. ., definition of criminal negligence."
"A person acts with criminal negligence with respect to an element of an offense when the person fails to perceive a risk that the element exists or will result from the conduct. The risk must be of such a nature and degree that failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." 11 Del. C. § 231(d).
Perillo Affidavit at 9.
Defendant's third claim asserts "transferred intent" would have limited [Defendant's] liability to Assault Third Degree. This claim is based upon the assertion that only physical injury, not serious physical injury, was inflicted upon the victim. Defendant's claim is inaccurate and completely without merit. The victim in this case, suffered serious physical injury (i.e. the buckshot entered and lodged behind the victim's heart and caused him to be listed in critical condition at Christiana Hospital) and thus, Defendant's actions would not constitute grounds for merely Assault Third Degree.
Defendant's case went through two case reviews in Superior Court. The first case review only addressed the weapons offenses with which Defendant was originally charged because the non-weapons offenses had initially been heard in Family Court in connection with an amenability determination. The second case review however covered all of the offenses for which Defendant was indicted. A plea offer was made by the State to Defendant at the second case review under Rule 11(e)(1)(C). This plea agreement provided that the State would enter a nolle prosequi on the Conspiracy First Degree charge, the Assault First Degree, the Attempted Murder First Degree, Possession of a Firearm During the Commission of a Felony and the Possession of Destructive Weapon. The State agreed to recommend 30 years at Level 5 suspended after 18 years for 12 years probation in return for Defendant pleading guilty to one count of Attempted Murder First Degree and to one count of Possession of a Firearm During the Commission of a Felony.
Defendant's Plea Agreement of April 8, 1996.
Because Ms. Perillo believed that the first offer was "not a reasonable plea offer," (since it did not have a Rule 11(e)(1)(C) sentencing cap) she apparently recommended to Defendant that he not accept it. Defendant did not accept the first plea offer, but Defendant did eventually enter into the Rule 11(e)(1)(C) plea agreement (the second plea offer) after continued negotiations between Ms. Perillo and the assigned Deputy Attorney General, for a Level 5 term of incarceration of 18 years followed by a 12 years probation.
Perillo affidavit at 7.
Counsel recalled that she was not going to recommend a plea disposition to Defendant which would expose him to a Level 5 term of up to life without parole, without a Rule 11 sentencing recommendation. Perillo affidavit at 7.
Defendant voluntarily signed the 11(e)(1)(C) plea agreement. In the absence of clear and convincing evidence to the contrary, Defendant is bound by his signature on the plea agreement form. Defendant was asked by this Court if he understood that because he was pleading guilty, he waived his Constitutional rights to present evidence in his defense, to testify and to appeal to a higher court, among other rights that were also waived in exchange for the guilty plea. Defendant affirmatively answered "yes" to all the Court's questions. Importantly for this Motion, Defendant answered affirmatively that he was satisfied with his lawyer's representation and that his lawyer fully advised him of his rights. Defendant answered all of the questions on the plea agreement form in his own handwriting.
Fullman v. State, Del. Supr., No. 268, 1988, 1989 WL 27739 at *2, Christie, C.J. (Feb. 22, 1988.
For the foregoing reasons, this Court finds that Defense counsel's representation did not fall below an objective standard of reasonableness. Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.