Opinion
ID No. 9709009665.
Submitted: November 21, 2007.
Decided: January 10, 2008.
On Defendant's Pro Se Motion for Postconviction Relief. DENIED.
Renee L. Hrivnak, Esquire, Department of Justice, Wilmington, Delaware.
Dammeyin Johnson, Delaware Correctional Center, Smyrna, Delaware. Pro se.
ORDER
On this 10th day of January, 2008, upon consideration of Defendant's Motion for Postconviction Relief it appears to the Court that:
1. On June 20, 2006 Dammeyin Johnson ("Defendant") filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). For the reasons set forth below, Defendant's Motion for Postconviction Relief is DENIED.
2. Following a jury trial in 1998, the Defendant was convicted of Unlawful Sexual Intercourse in the Second Degree, Unlawful Imprisonment in the Second Degree, Unlawful Sexual Contact in the Third Degree, Assault in the Third Degree, and 2 counts of Aggravated Intimidation. Mr. Johnson was sentenced to 18 years at Level 5 incarceration, to be suspended after 13 years for decreased levels of supervision. On appeal, the Delaware Supreme Court affirmed the Defendant's convictions and a mandate was issued on June 20, 2000. Six years later Defendant filed the present Motion for Postconviction Relief, which he has since amended. At the Court's request, Defendant's attorney for trial and appeal, Raymond M. Radulski, Esquire ("Counsel"), filed an affidavit in response to the claims of ineffective assistance of counsel.
Johnson v. State, 753 A.2d 438 (Del. 2000).
3. Prior to addressing into the merits of a postconviction claim, the Court must first determine that the motion meets the procedural requirements of Rule 61(i). Pursuant to Rule 61(i)(1), a defendant whose judgment of conviction became final prior to July 1, 2005 has a time limit of three years in which to file a motion for postconviction relief. The Defendant's conviction was made final when the Delaware Supreme Court issued its mandate on June 20, 2000, yet he did not file his postconviction motion until 2006. Thus the Defendant's motion is time-barred, and the bar can only be overcome by a "colorable claim that there was a miscarriage of justice because of a constitutional vi olatio n that u ndermin ed the f undamen tal leg ality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." The miscarriage of justice exception is a narrow one, and only applies in limited circumstances. The Court will therefore address the following claims in Mr. Johnson's motion under the miscarriage of justice standard.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(1). The time limit was later changed to one year for cases in which the judgment of conviction became final after July 1, 2005.
Super. Ct. Crim. R. 61(i)(5).
Younger, 580 A.2d at 555.
4. The Defendant first raises an ineffective assistance of counsel claim. To establish such a claim, a defendant must meet the two-part test set forth in Strickland v. Washington. Mr. Johnson must show both that 1) counsel's representation fell below an objective standard of reasonableness, and 2) a reasonable probability exists that Mr. Johnson would not have been convicted but for counsel's error.
466 U.S. 668 (1984).
Wright v. State, 608 A.2d 731 (Del. 1992), citing Albury v. State, 551 A.2d 53, 58 (Del.Super.Ct. 1988).
5. The Defendant claims counsel failed to object to his sentence for Unlawful Sexual Intercourse Second Degree since the transcript of the jury's verdict reflected that Defendant was found guilty of Unlawful Sexual Intercourse Third Degree. The Supreme Court agreed with this Court that the reference to Unlawful Sexual Intercourse Third Degree "was either an error in transcription or simply a misstatement by the court clerk in reading the verdict." The verdict sheet reflects a finding of guilty for Unlawful Sexual Intercourse Second Degree, and as counsel notes in his affidavit, the jury was not given Unlawful Sexual Intercourse Third Degree as a lesser included offense for its deliberations. As such, the Defendant is unable to prove prejudice under Strickland, because even if counsel had objected to the sentence, it would have only highlighted the obvious error at that time, but would not have altered the outcome for the Defendant.
Johnson v. State, 880 A.2d 1047 (Del. 2005).
Radulski Aff. ¶ 3.
Additionally, Defendant has filed numerous motions for modification of his sentence, all of which have been resolved.
6. The Defendant next claims counsel was ineffective for failing to object to the introduction of Defendant's juvenile record at sentencing. This claim lacks merit for two reasons. First, the Court is allowed to consider all relevant facts at sentencing, including juvenile and adult criminal records, in order to craft an appropriate sentence. Second, as counsel notes in his affidavit, the Defendant was facing a mandatory minimum of ten years incarceration for the Unlawful Sexual Intercourse conviction, and as such his prior record had little, if any, impact on the sentence the Defendant ultimately received. Recognizing these practical realities, counsel's failure to object to the juvenile record being considered by the Court cannot be found to be unreasonable, and under Strickland, this claim also fails.
Massey v. State, 256 A.2d 271 (Del. 1969).
Next, Mr. Johnson claims counsel was ineffective for failing to object to a statement made by the Court at sentencing. At sentencing the Court said the following: "Mr. Johnson, the Court sat during trial, and what sentence that the Court decided to impose last night, which hasn't been changed as a result of the comments, kind of hits a balance between what your counsel has indicated and what Mr. Miller has requested. . . ." The Defendant asserts that his counsel should have objected to the determination of the sentence before hearing from counsel and the Defendant. The Court receives and reviews a significant amount of information regarding the Defendant and the case before sentencing. It is only natural that as the Court reviews this information it begins to develop an idea as to the appropriate sentence in the matter. While it is critical that the final decision regarding sentencing be delayed until counsel has had an opportunity to address the Court at sentencing and the defendant has had an opportunity to allocute, the fact that in this case it did not change the Court's earlier thoughts about the sentence it would impose does not reflect that comments by counsel and the Defendant were ignored by the Court. It simply means the Court was not persuaded to modify its earlier thoughts about the case. This argument is also minimized by the fact that the Defendant was facing a minimum mandatory sentence and thus the Court's discretion was limited. As such the ability of counsel to persuade the Court of an alternative was limited and here the attorney had no reason to object to the Court's comments. Therefore, this claim also fails under Strickland.
Tr. of Sentencing January 8, 1999 at 9.
8. Because all of Mr. Johnson's ineffective counsel claims fail, he has not proven that he was deprived of a substantial constitutional violation resulting in a miscarriage of justice under Rule 61(i)(5). Therefore, the Defendant cannot overcome the time bar for his first ground of relief, and the Court need not address it further.
See Younger, 580 A.2d at 555.
9. As to Mr. Johnson's second ground for relief, that he was not convicted of Unlawful Sexual Intercourse Second Degree, the Court again rejects this argument. Not only has this claim been formerly adjudicated by this Court and the Supreme Court, but Mr. Johnson cannot prove a colorable claim that there was a miscarriage of justice due to a constitutional violation to overcome the time bar. As previously mentioned, the verdict sheet reflects a finding of guilty for Unlawful Sexual Intercourse Second Degree. In order to warrant any relief under Rule 61(i)(5), the movant has the burden of proof and must show that he has been deprived of a substantial constitutional right. Mr. Johnson has not proven such a violation in his motion, and because it is time barred the Court need not address this ground further.
Johnson v. State, 753 A.2d at 442. See also, Super. Ct. Crim. R. 61(i)(4).
Jackson v. State, 1995 WL 439270 at *3 (Del. July 19, 1995).
10. In his third ground for relief the Defendant claims the trial court violated his Fifth Amendment rights "by violating the Double Jeopardy Clause, subjecting Petitioner to danger twice for the same offense. . . ." This claim again involves Defendant's assertion that he was only convicted of Unlawful Sexual Intercourse Third Degree, not Second Degree, and is also without merit. As noted above, there is not a valid constitutional argument under the facts of the Defendant's case. The conviction for Unlawful Sexual Intercourse Second Degree was clearly what was intended by the jury, and a clerical error in transcription or a misstatement by the clerk does not change that fact. The Court's sentence of ten years incarceration for this conviction was not "erroneous" or "fabricated" as Defendant suggests, rather, it is mandated by law. Therefore, Mr. Johnson cannot prove a constitutional violation that would warrant analysis under the miscarriage of justice standard, and his claim is time barred.
Def.'s Memorandum at 7.
11. In his fourth ground for relief Mr. Johnson claims he was denied due process at sentencing and was prejudiced by the Court's "closed mind." In his motion, Mr. Johnson claims that the Court's statement of having decided Def endant's sentence "last night" meant that the Court would not be receptive to any statements made at sentencing that day. This again is a misunderstanding of the Court's choice of words. Before sentencing the Court considers all the information presented in order to craft an appropriate sentence, including any presentence investigation reports that were done. This does not mean however that the Court ignores the arguments made by counsel or the Defendant on the day of sentencing. Mr. Johnson's misinterpretation of the Court's comments does not create a violation of the Defendant's constitutional rights, and thus it does not warrant analysis under the miscarriage of justice standard.
12. For the reasons set forth above, Mr. Johnson's Motion for Postconviction Relief is hereby denied.
IT IS SO ORDERED.