Opinion
ID# 9904015635
Submitted: August 2, 2002
Decided: September 11, 2002
On Defendant's Pro Se Motion for Postconviction Relief.
DENIED.
ORDER
This 11th day of September, 2002, upon consideration of Defendant's pro se Motion for Postconviction Relief, it appears to this Court that:
1. Kenneth Johnson (Defendant) has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's motion is DENIED.
2. In May 1999, a grand jury returned an indictment charging Defendant with three counts of Robbery First Degree (title 11, section 832 of the Delaware Code), three counts of Possession of a Deadly Weapon During the Commission of a Felony (title 11, section 1447 of the Delaware Code), one count of Conspiracy Second Degree (title 11, section 512 of the Delaware Code), and one count of Criminal Mischief (title 11, section 811 of the Delaware Code). The offenses set forth in the indictment were alleged to have occurred in June 1997. The three robbery offenses for which Defendant was indicted each named a separate victim. The State entered a nolle prosequi as to the remaining counts of the indictment. On October 5, 2000, Defendant pleaded guilty to the three robbery charges and was sentenced to two years mandatory minimum on each charge for a total of six years of Level V imprisonment, followed by three years of probation. This is Defendant's first motion for postconviction relief.
3. In his motion, Defendant essentially alleges two grounds of ineffective assistance of counsel. Defendant alleges in Ground One that he pleaded guilty "on advice" of his defense counsel, Assistant Public Defender Timothy J. Weiler ("Counsel"), and that "no facts were proffered during the plea allocution that the offense was not a single robbery." Defendant alleges in Ground Two that he received three consecutive sentences for the same offense, that it was Counsel's advice "that cause[d] the double jeopardy claim alleged herein," and that "[h]ad it not been for such advice. . .[Defendant] would not pleaded (sic) guilty to a multiplicitous (sic) indictment."
Def.'s Mot. for Postconviction Relief at 3.
Id.
4. To succeed on a claim of ineffective assistance of counsel, 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 errors, the result would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Younger v. State, 580 A.2d 552, 555-56 (Del. 1990)
Flamer v. State, 585 A.2d 736, 753 (Del. 1990)
5. In a memorandum of law Defendant submitted in connection with his motion, he alleges that the three robbery charges contained in the indictment and to which he pleaded guilty "are multiplicious (sic) inasmuch as only a single criminal transaction is alleged in said counts." Defendant asserts that he "did not voluntarily waive his right to a Double Jeopardy challenge to the indictment itself prior to pleading inasmuch as. . .[C]ounsel never informed him that the indictment was multiplicious (sic)." Counsel has submitted an affidavit denying that he "`advised' Defendant to plead guilty pursuant to the plea agreement."
Def.'s Mem. of Law at 3.
Id. at 2.
Weiler Aff. § 6.
The Court finds no merit in Defendant's argument that he pleaded guilty to the three robbery charges on an uniformed basis. The Court looks to the Truth-In-Sentencing Guilty Plea Form executed by Defendant on October 5, 2000, which states that Defendant "freely and voluntarily decided to plead guilty," that Defendant's lawyer had "fully advised [Defendant] of [his] rights and of [his] guilty plea," and that Defendant had "read and understood all the information contained in this form." Additionally, Defendant answered in the affirmative during the colloquy required by Superior Court Criminal Rule 11 when asked by the Court whether he had committed each separate robbery against each separate victim.
See Guilty Plea and Sentencing Tr. of 10/5/00 at 9-10.
The Court likewise finds no merit in Defendant's argument that the indictment was defective because it named only a "single" criminal transaction relative to the three robbery charges to which Defendant pleaded. "The general test to determine whether separate counts of an indictment actually charge two [or more] offenses or only a single offense is whether each count requires proof of a fact that the other does not." Because each robbery crime for which Defendant was charged and to which Defendant pleaded guilty named separate persons as victims, each charge required proof of a fact that the others did not. Counsel was therefore not ineffective for failing to inform Defendant that the indictment was "multiplicious."
Seward v. State, 783 A.2d 365, 375 (Del. 1999) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932).
6. Based on the above, this Court finds that Counsel's representation of Defendant did not fall below an objective standard of reasonableness. Defendant has failed to make a sufficient showing for his ineffective assistance of counsel claims based on Defendant's own statements and representations to the Court contained in the Truth-In-Sentencing form. Defendant's Motion for Postconviction Relief is therefore DENIED.
IT IS SO ORDERED