Opinion
Cr. ID No. 0801001556.
Submitted: July 8, 2009.
Decided: July 21, 2009.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Renee L. Hrivnak, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John S. Edinger, Esquire, Assistant Public Defender, Wilmington, Delaware 19801.
Vernon Jones, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 21st day of July, 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court as follows:
I. FACTS AND PROCEDURAL HISTORY
Defendant Vernon Jones was indicted on four counts of first degree rape. On August 4, 2008, he pled guilty to one count of first degree rape and the remaining three charges of rape in the first degree were dismissed. The statutory penalty for Rape 1st Degree was 25 years to life, with a minimum mandatory 25 years. The State agreed to recommend the minimum 25 years at the time of sentencing.
The State fulfilled its agreement and recommended a 25 year incarceration sentence but the Court chose not to follow that recommendation and instead on October 24, 2008, the Court sentenced Defendant to 50 years at Level V suspended after 45 years for 5 years Level IV Halfway House suspended after 1 year for 2 years at Level III probation.
Defendant did not appeal his conviction or his sentence to the Delaware Supreme Court.
On January 27, 2009, Defendant's counsel filed a Motion for Reduction of Sentence. On March 2, 2009, the Superior Court granted the Defendant's motion for reduction of sentence and modified his sentence to 50 years at Level V suspended after 30 years for 20 years at Level IV Halfway House suspended after 1 year for 2 years at Level III probation. Essentially, this modification reduced Defendant's Level V incarceration by 15 years. Ultimately, Defendant was sentenced to 30 years of incarceration, 5 years above the minimum mandatory 25 years.
The facts giving rise to this action reveal that the Defendant, who was 37 years old at the time, was the boyfriend of the then 7 year old victim's mother. At the time of the rape, Defendant was living in Wilmington, Delaware with the victim and her mother. The 7 year old victim disclosed that something "nasty" happened and said that Defendant placed his penis in her "butt" and tried to put it in her mouth. She said that it happened more than one time, always at night, and always in her living room.
After waiving his rights and agreeing to speak with the police, Defendant admitted to placing his erect penis between the victim's legs in the area of her buttocks. He further confessed to inserting his penis in the victim's mouth. Defendant stated that he ejaculated during the incident which had occurred sometime in November 2007. He denied any anal or vaginal penetration and stated it only happened one time.
On January 22, 2009, Defendant filed this motion, his first, for post conviction relief. Defendant supplemented his motion for post conviction relief with an "Informal Brief" which he filed on April 20, 2009.
The essence of Defendant's motion is that he is dissatisfied that the Court did not accept the parties recommended sentence of 25 years. Defendant seeks therefore to withdraw his guilty plea and thereafter attempt to negotiate a better deal.
Defendant raises various grounds to achieve his goal of withdrawing his guilty plea including ineffective assistance of counsel, "possible biasness from being out of town", unfulfilled plea agreement, unreasonable sentence, and inadequacies at the sentencing phase.
II. DISCUSSION
Defendant, dissatisfied with his sentence, is ultimately seeking to withdraw his guilty plea in the hopes that he can negotiate something better.A) STANDARD FOR WITHDRAWING GUILTY PLEA
A defendant seeking to withdraw his guilty plea after the imposition of sentence bears the burden of proving that the plea was not voluntarily entered or was entered because of misapprehension or mistake as to the defendant's legal rights. In State v. Friend, the Court enunciated five factors to consider in determining whether a Court should permit the withdrawal of a guilty plea:
State v. Phillips, 2007 WL 3105749, at *1 (Del.Super. September 20, 2007).
State v. Friend, 1994 WL 234120, at *1-2 (Del.Super. May 12, 1994), aff'd, 683 A.2d 59, 1996 WL 526005 (Del. August 16, 1996) (TABLE).
(a) Whether there was a procedural defect in taking the plea;
(b) Whether the defendant knowingly and voluntarily consented to the plea agreement;
(c) Whether the defendant presently has a basis to assert legal innocence;
(d) Whether the defendant received adequate legal counsel throughout the proceedings; and
(e) Whether granting the motion would prejudice the State or unduly inconvenience the Court.
Phillips, 2007 WL 3105749, at *1 (citing Friend, 1994 WL 234120, at *1-2).
The decision to permit a defendant to withdraw his guilty plea rests in the sound discretion of the Court.
Id. at *1.
Turning to this case, Defendant Vernon Jones signed a Truth-In Sentencing guilty plea form prior to entering his guilty plea in which he stated that he had been notified of the minimum mandatory sentence (25 years), that he had not been promised what his sentence will be, that he had not been threatened or forced to enter the plea, that he was satisfied with his lawyer's representation, that his lawyer fully advised him of his rights, and that he freely and voluntarily decided to plead guilty. The form also listed the statutory sentencing ranges and guidelines (25 years to life) for the charge, Rape 1st, to which Defendant pled guilty.
Truth-In-Sentencing Guilty Plea Form dated August 4, 2008.
Thereafter, the Court engaged Defendant Vernon Jones in an extensive plea colloquy to ascertain that his plea was entered knowingly, intelligently, and voluntarily. Defendant's counsel, during the plea colloquy, represented that if Defendant was convicted of all four charges pending against him he was facing a minimum mandatory of 50 years up to a life sentence. Defendant's counsel represented that he had numerous discussions with Defendant Vernon Jones about the plea. Defense counsel further represented that he had discussed with Defendant the procedures of the trial, Defendant's trial rights, and the nature of the charges.
Plea Colloquy Transcript, at 3-5.
Before accepting Defendant's plea, the Court confirmed Defendant's understanding of the Truth-in-Sentencing form, and Defendant's satisfaction with defense counsel's representation. The Court confirmed that Defendant discussed the Truth-in-Sentencing Guilty Plea form and the plea agreement with his counsel. The Court also confirmed that the Defendant was satisfied with his counsel's representation. Defendant confirmed that he understood that by accepting the plea agreement, there was no guarantee as to what his sentence would be.
Id. at 5.
The Court: And you understand I'm not guaranteeing you anything about the sentence? The Defendant: Yes.
The Court: Has anyone promised you what your sentence will be?
The Defendant: No.
Id. at 7-8.
During the plea colloquy, Defendant admitted to the offense to which he pled guilty.
Id. at 8-9.
At Defendant's sentencing, Defense Counsel acknowledged that Defendant Vernon Jones not only pled guilty, but when arrested and confronted by the police regarding the incident, he confessed. Defense counsel urged the Court to view Defendant's actions in pleading guilty and confessing as a mitigating circumstance in that he accepted responsibility for his criminal conduct.
Sentencing Transcript, at 3.
The State fulfilled its plea agreement and recommended to the Court the minimum mandatory 25 years of incarceration.
Id. at 4.
A defendant is bound by his answers on the guilty plea form and by his testimony at the plea colloquy in the absence of clear and convincing evidence to the contrary.
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del.Super. October 7, 2008).
The record before the Court, including Defendant Vernon Jones' own statements, undermines completely his claims in his post conviction motion that the terms of his plea agreement were unfulfilled or that he was forced to accept the plea as a result of ineffective counsel. The Truth-in-Sentencing form and plea colloquy reveals that Defendant knowingly, voluntarily, and intelligently entered a guilty plea to rape in the first degree, understood the penalty, and acknowledged his guilt. He further understood that although the parties would recommend a sentence, there was no guarantee what his actual sentence would be and that he could ultimately be sentenced from 25 years to life for the charge.
Upon analyzing the relevant factors under Friend, the Court concludes that Defendant has not demonstrated that there was a procedural defect in the plea process, that his plea was unknowing or involuntary, or that his counsel's representation was inadequate. Moreover, Defendant does not have a basis to assert legal innocence having confessed to the charge. Therefore, Defendant has not met his burden of showing that he should not be bound by his prior representations under oath. The record reveals no basis to permit the withdrawal of Defendant's guilty plea.
Defendant raises specific allegations in his motion which he contends should result in the withdrawal of his guilty plea. These specific allegations include ineffective assistance of counsel, "possible biasness from being out of town", unfulfilled plea agreement, unreasonable sentence, and inadequacies at the sentencing phase. These specific allegations are addressed below.
B) INEFFECTIVE ASSISTANCE OF COUNSEL
Before addressing the substantive merits of any claim for post conviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the post conviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Defendant's ineffective assistance of counsel claims are not procedurally barred because a Rule 61 motion is the appropriate vehicle for such a claim, even where it has not been previously raised.
Malin v. State, 2009 WL 537060, at *5 (Del.Super. 2009); Desmond v. State, 654 A.2d 821, 829 (Del. 1994).
Turning then to the substantive merits of this claim, to prevail on an ineffective assistance of counsel claim, the defendant must meet the two-pronged Strickland test by showing that: (1) counsel performed at a level "below an objective standard of reasonableness," and (2) "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that defense counsel was not reasonably competent, while the second prong requires him to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 687-88, 694.
Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Moreover, there is a strong presumption that defense counsel's conduct constituted sound trial strategy.
Younger, 580 A.2d at 556.
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland, 466 U.S. at 689.
Here, Defendant's ineffective assistance claims are undermined by the record and fail to satisfy Strickland.
Defendant Vernon Jones first claims that his counsel was ineffective because he should have negotiated a better plea. Defense counsel negotiated a plea where the State agreed to drop three counts of Rape 1st Degree of minor under 12 years of age and recommend only the minimum mandatory sentence of 25 years for the remaining count of Rape 1st Degree of minor under 12 years of age.
Beyond his own conclusory assertion that his counsel should have obtained a better plea, he fails to substantiate it in any respect. Having already confessed to having inserted his penis in the 7 year old victim's mouth and between her legs, Defendant fails to elaborate on how his counsel would be able to negotiate a better plea. There is, of course, no constitutional right or other legal entitlement to a plea bargain. Defendant, of course, had the option of not accepting the plea. Accepting the plea bargain benefited Defendant by reducing the number of the charges against him, from four counts of rape in the first degree to one count of rape in the first degree, and by avoiding the uncertainties of a jury trial.
Washington v. State, 844 A.2d 293, 295 (Del. 2004).
Essentially, Defendant's option was to accept the plea agreement or go to trial. Defendant fails to establish that the outcome would have somehow been any different had he gone to trial. There was nothing deficient about Defendant's counsel's conduct related thereto.
Defendant also contends that his counsel was ineffective for failing to explain the essential elements of the crime charged in the plea agreement. Defendant's assertion is directly contrary to his representation in his Truth-In Sentencing guilty plea form that he was satisfied with his lawyer's representation and that his lawyer fully advised him of his rights, and that he freely and voluntarily decided to plead guilty. Prior to entering his guilty plea, at the plea colloquy, Defendant's counsel represented that he had discussed with Defendant the procedures of the trial, Defendant's trial rights, and the nature of the charges. Defendant never disputed his counsel's representations prior to pleading guilty.
Moreover, the Court credits defense counsel's statement in his Affidavit, in which he again reiterated that he advised Defendant of the elements of the crime on numerous occasions prior to the entry of his guilty plea.
Thus, the record before the Court, including Defendant's own statements, undermines completely Defendant's claim that he was not advised of the essential elements of the crime charged in the plea agreement.
Defendant claims that his counsel was ineffective for not providing him with "Brady material" including his video confession. Defendant's counsel, in his Affidavit, represents that he provided Defendant with all paper discovery he received from the State. Defendant's counsel further represented that Defendant never requested an opportunity to review the DVD of his interview with the police. Department of Correction regulations require a special appointment be scheduled to bring video equipment into the prison, and because Defendant never requested an opportunity to review the DVD, no special arrangements were made.
All paper discovery was provided to the Defendant, and the paper discovery included a summary narrative of Defendant's statement. Defense counsel also provided Defendant with a description of the taped statement prior to the entry of the guilty plea. Defendant was, of course, present during his interview with the police and therefore knows what he confessed to doing to the victim. Defendant's allegations are insufficient to establish a claim of ineffective assistance of counsel.
Defendant contends that his counsel induced him to plead guilty based on an alleged possible biasness by Governor Minner and/or the Court against out of state defendants. First, Defendant was living in Delaware at the time of the crime. Second,
Defense Counsel, in his Affidavit, states that he never made any such statements. Third, Defendant in his plea colloquy, and in the Truth-In-Sentencing Guilty Plea Form, represented that his plea was being made knowingly, voluntarily and intelligently and that neither his lawyer, the State or anyone else threatened or forced him into entering his guilty plea. Fourth, this claim is merely conclusory and unsubstantiated. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
State v. Brown, 2004 WL 74506, at *2 (Del.Super. 2004).
Defendant contends that his counsel was ineffective for the handling of his sentencing. Defendant's allegations of his counsel's deficiencies include not presenting live character witnesses at the sentencing, not offering mitigating evidence, and not pressing a "grouping argument".
Live defense witnesses were not presented at sentencing adhering to the Court's general practice not to allow defense character witnesses to speak at sentencing although they are permitted to write letters on the defendant's behalf for consideration. Defense counsel, did in fact, offer mitigating evidence at sentencing. Moreover, a thorough pre-sentence investigation was performed prior to Defendant's sentencing which included a thorough investigation of defendant's family history, education, employment and other background information. Neither Defendant's counsel nor the Court understands what Defendant means by pressing a "grouping argument". Defendant fails to explain, substantiate or support any alleged such argument. This contention is unintelligible and incoherent.
The Court need not address an unintelligible and incoherent claim. See, State v. Mobley, 2007 WL 3287999. at *3 (Del.Super. 2007).
Defendant also contends in conclusory fashion that his counsel was ineffective for failing to seek the suppression of evidence. Defendant does not elaborate on what he believes should have been suppressed and the basis for his belief that he has a good faith basis for suppression. Defendant provides no support for this contention. Defense counsel in his Affidavit represented that he found no good faith basis upon which to motion the Court to suppress any evidence in this case. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
Finally, Defendant's contention that defense counsel was ineffective for failing to work in the best interests of Defendant is likewise unsupported, unsubstantiated and conclusory. This contention is insufficient to establish a claim of ineffective assistance of counsel.
Defendant has failed to establish either prong of the Strickland test, and therefore, his claims of ineffective assistance of counsel fail.
C) ADDITIONAL CONTENTIONS
Although ineffective assistance of counsel claims do not have to be raised on direct appeal, all the remaining contentions raised in Defendant's motion were required to be raised in the prior proceedings to be procedurally preserved.
Malin v. State, 2009 WL 537060, at *5 (Del.Super. 2009); Super.Ct.Crim.R. 61(i)(2) (3).
In order to overcome the procedural bar, Defendant must show a "colorable claim that there was a miscarriage of justice". The miscarriage of justice exception is a narrow one and has been applied only in limited circumstances. Defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." Defendant has failed to provide any basis upon which this Court could conclude that it is in the interests of justice to consider an otherwise barred claim for relief.
Super.Ct.Crim.R. 61(i)(4).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Even if Defendant's additional contentions are not procedurally barred, they are without merit. The essence of Defendant's motion is that he was wronged because his sentence exceeded the State's recommendation of 25 years incarceration.
Despite Defendant's claims that he was somehow wronged by the State, the State agreed to recommend the minimum 25 years at the time of sentencing, and true to its word, it did so. The State fulfilled its obligations of the plea agreement.
In his Affidavit, Defense counsel represents that he advised Defendant that the Court is not bound by the terms of the plea agreement between the Defendant and the State. Defendant was advised that despite the recommendation of the State there were no promises as to what his sentence would ultimately be. Defendant was advised that the Court had the authority to sentence Defendant up to life imprisonment.
There is no doubt that Defendant understood that despite the State's recommendation, the Court would have the final say as to Defendant's sentence, that neither the State nor defense counsel could determine the sentence, and that the ultimate decision was completely up to the sentencing judge. Defendant expressly acknowledged this understanding in his Truth-In-Sentencing Guilty Plea Form and at the plea colloquy.
Although disappointed with his sentence, Defendant has failed to provide any basis upon which this Court could conclude that it is in the interests of justice to consider these otherwise barred claims for relief.
III. CONCLUSION
For the reasons stated above, Defendant's Motion for Postconviction Relief should be denied.IT IS SO RECOMMENDED.