Opinion
Cr. A. Nos. IN-98-04-0198 R1, IN-98-04-0199 R1
Submitted: August 6, 1998
Decided: April 27, 1999 Motion Denied: February 8, 2000
ORDER
Upon review of Movant Calvin A. Johnson ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court:
1) On August 6, 1998, Movant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on a Fast Track plea to Burglary Third Degree and Theft of Property over $1000.00.
2) On May 22, 1998, Movant pleaded guilty to two counts of Burglary Third Degree and Theft of Property. The State dropped all remaining charges.
3) In this motion, Defendant asserts that: (1) he was told by his attorney, Mr. Jerome Capone, Esq., that the sentence Defendant faced was of three years and that on the day of sentencing, the plea offered was eight years; (2) that he entered his "plea unaware of the complete circumstances and options that were available"; and (3) his attorney did not call family members and supporters to address the Court.
4) In reviewing motions for postconviction relief, the Court must first determine whether a defendant's claims are barred by procedural requirements prior to addressing the merits of the underlying claims. This is Defendant's first Motion for Post Conviction Relief.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
5) The Court has determined that no procedural bars listed in Rule 61 are applicable to Defendant's first two grounds. Therefore, the Court may consider the merits of Defendant's application as to grounds one and two. The Court finds that Defendant participated fully in his plea proceeding and at his sentencing hearing. During his plea colloquy, Defendant stated that he understood that his guilty plea was made pursuant to Rule 11(e)(1)(C) and that if the Court did not follow the recommended sentence, that he could withdraw his plea. He further acknowledged that he entered into the guilty plea freely and voluntarily. At the sentencing hearing, after discussion between Prosecutor Peter Letang, Mr. Capone, the Court and Defendant regarding the longevity of the sentence, Defendant indicated that he understood that the agreed upon sentence totaled eight years level V followed by probation, that he admit that he is a habitual offender, and that if the court sentenced him to a longer term, he could withdraw his plea and proceed to trial.
The Court: Are you Calvin A. Johnson?
Defendant: Yes, sir.
The Court: Are you presently under the influence of alcohol or drugs?
Defendant: No, sir.
The Court: Have you freely and voluntarily decided to enter these pleas today?
Defendant: Yes, sir, I have.
The Court: The plea agreement indicates you're going to plead guilty to burglary in the third degree and theft felony, you're going to admit to the violations of probation, State's going to recommend all the remaining charges be indicted; that you receive an immediate sentence of eight years level five followed by probation; that you agree to make restitution to the victims according to a pre-sentence memorandum, and that you admit today that you are a habitual offender under the statute 11 Delaware Code Section 4214(a). Is that your understanding?
Defendant: Yes, sir.
The Court: Has anybody promised you anything in addition to that to get you to plead guilty?
Defendant: No, sir.
. . .
The Court: These two offenses are felonies and they carry together up to five years incarceration. Do you understand that?
Defendant: Yes, sir.
The Court: Since this is a Rule 11(e)(1)(c) plea, if I were to give you a more severe sentence that what the State is recommending, you would be allowed to withdraw your plea, do you understand that?
Defendant: Yes, sir.
. . .
Defendant: This is all a surprise to me with the eight years. I was under the understanding that the recommendation was three until I walked in here today. I am really unclear about a lot of things at the moment. . . . I did sign the plea agreement . . ., but it was kind of a rush thing, and that's really why I signed it.
Mr. Letang: Your Honor, Mr. Capone did discuss with me this morning, so the record is clear, the amount of time that the State was going to be recommending and the defendant would agree to with respect to the entry of the plea. . . . I told Mr. Capone this morning that if he didn't accept the plea today we would have the case assigned, and the recommendation would increase with respect to the amount of time he's looking at. Quite frankly, Mr. Capone did everything he can try to convince us to do otherwise. We believe that he's getting a substantial break given the criminal history and his probation status. . . .
. . .
Mr. Capone: . . . So while this is a harsh plea, it's pretty clear to me that this was the best deal that he was going to get. That's why he signed the plea.
The Court: Mr. Johnson, do you understand what's just been said?
Defendant: Yes, I do, Your Honor.
The Court: Is it your desire to go ahead with the plea?
Defendant: Yes, it is, Your Honor.
Transcript of Guilty Plea Hearing at 6-12, State v. Johnson, Del. Super., IN98-04-0198, 0199, Gebelein, J. (May 22, 1998).
6) In the course of the proceeding, Defendant indicated his objection to the manner in which his guilty plea and sentencing took place and the record indicates further clarification of the consequences of his plea agreement. Therefore, the Court finds that Defendant had a full and fair opportunity to be heard on the issue of the longevity of his sentence. He was also adequately advised in an appropriate manner of the conditions of his plea. As a result, the Court finds that grounds one and two of Defendant's claim do not require postconviction relief.
7) As for ground three, Pursuant to Superior Court Criminal Rule 61(a), a motion for post-conviction relief must be based on "a sufficient factual and legal basis." In addition, pursuant to Rule 61(b)(2), "[t]he motion shall specify all the grounds for relief which are available to movant . . ., and shall be set forth in summary form the facts supporting each of the grounds thus specified." The Court will not review the allegations on their merits because the claims are barred by Rule 61(b)(2) which requires that the content of a postconviction relief motion "set forth in summary form the facts supporting . . . the grounds thus specified." Accordingly, this Court will not address Rule 61 claims that are conclusory and unsubstantiated. Furthermore, pursuant to Superior Court Criminal Rule 61(d)(4), "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal . . ." The Court finds that defendant's third ground, failure to call family members and supporters, is procedurally barred. Movant does not provide the Court with any facts or references to substantiate the allegations. This Court, therefore, denies relief as to ground three.
See Younger, 580 A.2d at 555; 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.. IN87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
For the foregoing reasons, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.