Opinion
I.D. No. 9804000177.
Date submitted: October 27, 2000.
Date decided: February 27, 2001.
ORDER
Upon review of Movant's, Calvin Johnson, Motion for Post Conviction Relief and the record, it appears to the Court:
1) On October 27, 2000, Movant motioned by and through his Counsel, Carolyn P. Ayres, Esq., for Post Conviction Relief pursuant to Superior Court Criminal Rule 61 as to Fast Track plea to Burglary Third Degree and Felony Theft. Movant's plea also contained an admission that he was an habitual offender pursuant to 11 Del. C. § 4214(a).
2) On May 22, 1998, Movant pleaded guilty to two counts off Burglary Third Degree and Felony Theft. The State entered nolle prosequi for the remaining charges.
3) In this motion, Movant asserts that: first, his Counsel, Mr. Jerome M. Capone, Esq., provided him with ineffective counsel by 1) informing Movant that he was eligible for a life sentence contingent upon conviction pursuant to the habitual offender law, 2) failing to require the State to prove Movant's eligibility for habitual offender status, 3) failing to provide the court with character letters, 4) telling Movant that he would receive three (3) years incarceration and not the eight (8) years offered by the State, 5) failing to conflict himself out of representation of Movant, and 6) failure to inform Movant that his plea agreement precluded a right to appeal; and second, that Movant entered his plea agreement involuntarily, unknowingly, and/or unintelligently.
4) In reviewing motions for post conviction relief, the Court must first determine whether a movant's claim is barred by procedural requirements prior to addressing the merits of the underlying claims. If the motion survives procedural bars, the merit of the claims must be based on a "sufficient factual and legal basis . . . where the 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 address Rule 61 motions that are conclusory or unsubstantiated. The Court may also summarily dismiss a motion for post conviction relief if it "plainly appears from the motion . . . and the record of prior proceedings that the movant is not entitled to relief . . ." Additionally, to prevail on a claim of ineffective counsel, Movant must satisfy the two-part test illustrated in Strickland v. Washington. The movant must show that his counsel's conduct fell below that of reasonable professional standards. Secondly, the movant must show that such conduct caused him actual prejudice. This is Movant's second motion for post conviction relief.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Supr. 1991); Younger v. State, 580 A.2d 552, 554 (Del.Supr. 1990)
Superior Court Rule 61(b)(2).
See Younger, supra, at 555; See also State v. Conlow, Del.Super., Cr.A. No. IN78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del.Super., Cr.A. No. IN 87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
Superior Court Rule 61(d)(4).
466 U.S. 688, 688 (1984).
Id. at 693.
5) The Court has determined that all of the Movant's claims fail because they do not survive procedural bars, do not specify the facts supporting claims, and/or do not plainly warrant Movant to the relief sought.
6) Movant alleges that his Counsel, Mr. Jerome M. Capone, Esq., provided him with ineffective counsel by informing Movant that he was eligible for a life sentence upon conviction pursuant to the habitual offender law. Mr. Capone, Esq. did not improperly inform Movant of this possibility. Had Movant's case gone to trial with the result being a finding of guilt, Movant would have qualified as an habitual offender and possibly received a life sentence pursuant to 11 Del. C. § 4214(a). Nonetheless, Movant does not allege nonconclusory or substantiated claims regarding Counsel's failure to properly inform Movant of his potential for a life sentence. Because Movant does not provide the Court with any facts or references to substantiate this allegation, it is procedurally barred.
Affidavit of Jerome M. Capone, Esq. at [2]-7, State v. Johnson, Del. Super., IN9804000177, Gebelein, J. (Dec. 27, 2000).
7) Movant alleges that Counsel failed to provide effective counsel by not requiring the State to prove Movant's eligibility for habitual offender status. But, once a Movant voluntarily, knowingly, and intelligently agrees to a plea agreement even if it contains an adjudication of habitual offender status, no further proceedings are required to determine such status. This claim plainly appears from the motion and the record of prior proceedings that the movant is not entitled to relief. The motion and the record amply record that Movant was fully and completely aware that the plea agreement which he voluntarily, knowingly, and intelligently agreed contained an adjudication of habitual offender status. His agreement to the Plea Agreement unambiguously records this adjudication. In his sentencing colloquy he understands that he admits to being a habitual offender under 11 Del. C. § 4214(a).
Abdul-Akbar v. State, 703 A.2d 63 (1997) (unpublished order).
"Plea Agreement," (May 22, 1998), [1].
"Truth in Sentencing Guilty Plea Form," (May 22, 1998), [1].
8) Movant alleges that Counsel was ineffective by not providing the court with character letters. However, character letters would not have aided or hindered Defendant's plea agreement. Defendant agreed to his term of 8 years incarceration and 5 years probation, and the presence or absence of character letters are not relevant. Indeed, any other sentence than that agreed upon under Rule 11(e)(1)(C) would have allowed the State to withdraw the plea. The cogency of a plea agreement is that these ancillary matters are dispensed with in exchange for an agreed to sentencing recommendation by the Attorney General's office. Failure to provide these character letters do not fall below the required professional minimums. If the Court refused to adhere to the State's sentencing recommendations, the Movant has a right to withdraw his guilty plea.
9) Movant alleges that Counsel was ineffective because Movant was told he would receive three (3) years incarceration and not the eight (8) years offered by the State. Counsel Jerome M. Capone, Esq. avers that he "expected to be able to negotiate a plea bargain that would likely be in range of 3 to 5 years." Counsel Capone admits that he was not able to secure a better plea than the one offered by the State. Indeed, the State admits that "Mr. Capone did make numerous attempts to represent the positive attributes of his client, and probably more than in most cases advocated for a better plea offer." In open court, Mr. Capone revealed that "after beating [his] head against the wall all morning and the last couple of days," the 8 year plea agreement was "the best [he was able] to do." Movant has not shown that Counsel Capone's conduct fell below that of reasonable professional standards. In fact, the record indicates just the opposite. Both the affidavit of Counsel Capone and the State's Response to Movant's Motion for Post Conviction Relief demonstrate that Counsel met or exceeded Counsel's professional obligations to the Movant. Because Movant fails to prove the first prong of the Strickland test, the Court will not address the second prong.
Affidavit of Jerome M. Capone at [2]-6, supra.
"State's Response to Movant's Motion for Post Conviction Relief" at [3], State v. Johnson, Del.Super., I.D. No. 9804000177, Gebelein, J. (February 15, 2001) (emphasis added).
"Transcript of Guilty Plea Hearing" at 4-17, State v. Johnson, Del.Super., IN98-04-0198, 0199, Gebelein, J. (May 22, 1998).
10) Movant alleges that Counsel failed to conflict himself out of representation of Movant. Movant ambiguously refers to an argument he had with his Counsel during his first meeting with Counsel. However, Movant provides only details that are conclusory and unsubstantiated. Assuming, arguendo, that a serious argument occurred, such arguments are to be expected in the tense counsel/accused relationship. The question is not whether a serious argument took place, but was the argument a manifestation of irreconcilable differences to such a degree that continued representation would become a conflict of interest. Movant did not provide any details concerning how the argument led to irreconcilable differences mandating a withdrawal of Counsel. Because Movant does not provide the Court with any facts or references to substantiate this allegation, it is procedurally barred.
11) Movant alleges that Counsel failed to inform Movant that his plea agreement precluded a right to appeal. Counsel did not fail to inform Movant of his right to appeal. Movant voluntarily, knowingly, and intelligently waived his rights to appeal by virtue of his agreement to the guilty plea agreement, his completion and signing of the Truth in Sentencing Guilty Plea Form, and in open court where Movant acknowledged his waiver of constitutional rights. Because Movant does not provide the Court with any facts or references to substantiate the allegation that he did not voluntarily, knowingly, and intelligently waive his appeal rights, it is procedurally barred.
See, e.g., "Truth in Sentencing Guilty Plea Form," supra, in which Movant affirms that his guilty plea was negotiated freely and voluntarily and includes a waiver of his appeal rights. See also "Transcript of Guilty Plea Hearing" at 7-11, supra, in which Movant understands that he is "giving up all of those constitutional rights that go along with a trial[.]"
12) The Court finds that Movant's entire motion for post conviction relief rests on claims of ineffective counsel and a claim that Movant's plea agreement was not voluntary, knowing, and intelligent. Because of the foregoing reasons, Movant's claims of ineffective counsel are procedurally barred, are not based on specified facts and substantiation, and are not plainly warranted the relief sought. In regards to Movant's claim that his plea agreement was not voluntary, knowing, and intelligent, the Court finds that the Movant fully participated in his plea proceedings and at his sentencing hearing. During his plea colloquy, Movant stated that he understood that his guilty plea was made pursuant to Rule 11(e)(1)(C). On his Truth in Sentencing Guilty Plea Form and in the plea colloquy, Movant affirmed that he freely and voluntarily entered his plea agreement, understood that he was waiving his constitutional rights, and that no one promised him anything not found in Movant's plea agreement. Movant acknowledged that he entered into the guilty plea voluntarily, knowingly, and intelligently.
See "Transcript of Guilty Plea Hearing," passim, supra.
See "Plea Agreement," supra; "Truth in Sentencing Guilty Plea Form," supra; "Transcript of Guilty Plea Hearing," passim, supra.
For the foregoing reasons, Movant's motion for post conviction relief is DENIED.
IT IS SO ORDERED.