Opinion
ID No. 9705011087.
Date Submitted: August 18, 2000.
Decided: September 19, 2000.
Cr.A. No: 1N97-05-1762R1, 1763R1
ORDER
Upon review of Movant Phil Jones ("Movant")'s Motion for Postconviction Relief and the record, it appears to the Court:
1) Movant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 from a guilty plea to Maintaining a Vehicle for Keeping Controlled Substance and Conspiracy Second Degree.
2) On July 8, 1997, Movant pled guilty to maintaining a vehicle for keeping controlled substance and conspiracy second degree. The Rule 11 (e)(1)(c) plea agreement provided that the State would recommend five years at Level V, suspended after three years for Level III, and include substance abuse evaluation and treatment while in custody. The Court sentenced Movant to five years Level V. After successful completion of the Key Program, this sentence was suspended for two years at Level III. Movant did not appeal his sentences to the Delaware Supreme Court, but he did appeal to the Supreme Court from a Superior Court order denying his motion for correction of sentence under Superior Court Criminal Rule 35 (a). The Superior Court's judgment was affirmed.
3) Movant filed this Rule 61 motion on March 28, 2000. Movant's prior counsel filed an affidavit on May 26, 2000, and the Department of Justice filed a response on June 13, 2000. Movant did not file a response.
4) In his motion, Movant asserts two grounds of ineffective assistance of counsel. First, Movant contends the Court violated the plea agreement because the drug treatment was not part of the plea offer, and his counsel should have objected to this violation of the plea agreement. Second, Movant claims his counsel failed to advise him of his right to appeal his sentence.
5) In reviewing motions for postconviction relief, the Court must first determine whether a defendant's claim is barred by procedural requirements prior to addressing the merits of the underlying claims. Rule 61(d)(4) provides for summary dismissal by the Court "if it plainly appears from the motion . . . and the record . . . that the movant is not entitled to relief the judge may enter an order for summary dismissal . . ."
Bailey v. State, Del.Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del.Supr., 580 A.2d 552, 554 (1990).
6) In an ineffective assistance of counsel claim, the Defendant has the burden of showing that an attorney's conduct did not meet reasonable professional standards and that such conduct was prejudicial to him.
Strickland v. Washington, 466 U.S. 668 (1984).
In the context of an ineffective assistance of counsel claim, "[t]he movant must support the ineffective assistance of counsel claim with concrete allegations of actual prejudice, otherwise the Movant risks summary dismissal . . ."
State v. Mason, Del.Super., Cr A. No. IN98-02-0279-Rl, Barron, J. (April 11, 1996) (Mem. Op.), citing Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990).
7) After reviewing the parties' submissions and the record, the Court concludes that Movant's claims for postconviction relief are without merit. There is no basis to Movant's claim that the sentence imposed was a violation of the plea agreement which his counsel failed to object. Movant objects to being in drug treatment, but there was no violation because the plea agreement reads "Other Agreement: to have substance abuse evaluation and treatment while in custody." The Court's sentence to the Key Program therefore was not a violation to the plea agreement.
Movant's second assertion also has no merit. Movant signed the Truth in Sentencing Guilty Plea Form which asks the Movant if he understands that by entering into the plea that he waives his constitutional right "to appeal to a higher court." The Movant specifically gave up his right to appeal when he entered the Rule 11(e)(1)(c) plea. The Court concludes that Movant's claims for postconviction relief lack merit.
Based upon the foregoing. Movant Phil Jones' motion for postconviction relief is DENIED.
IT IS SO ORDERED.
_________________________________ The Honorable Richard S. Gebelein
Orig: Prothonotary cc: David J.J. Facciolo, Esq. Christina Showalter, Esq., DAG