Opinion
ID No. 30110509DI.
Date submitted: July 8, 1999.
Date decided: November 4, 1999. Order Denied: February 8, 2000
ORDER
Upon review of Movant Brian I. Lambert ("Movant")'s Motion for Postconviction Relief and the record, it appears to the Court:
1) On July 1, 1999, Movant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on a conviction of Violation of Probation (VN9111015603).
2) On December 9, 1998, Movant was sentenced, effective October 8, 1998, to twenty months at Level V. Movant was to participate in a Level V treatment program, either Key or New Hope. Upon successful completion of the treatment program, the sentence was suspended for six months at Level III.
3) On August 30, 1999, Movant filed a Motion for Modification of Sentence. This Court granted defendant's motion to allow Movant to attend Green Tree in lieu of Key.
4) In this motion, Movant asserts that (1) his attorney "never once mentioned that [his] probation violation wasn't because of a criminal act and an addiction is not a crime and a Rehab Center is needed, not prison." Movant asserts that his sentence was illegal because he "did not commit a crime or pick-up any new criminal charges."
5) 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. Rule 61(d)(4) provides for summary dismissal by the court "[i]f it plainly appears from the motion . . . and the record . . . that the movant is not entitled to relief; the judge may enter an order for its 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) The Court finds that defendant's claim is essentially one of ineffective assistance of counsel. 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 claims with concrete allegations of actual prejudice, otherwise the movant risks summary dismissal."
State v. Mason, Del. Super., Cr. A. No. IN98-02-0279-R1, Barron, J. (Apr. 11, 1996) (Mem. Op.), citing Younger v. State, Del. Supr., 580 A.2d 552, 556 (1990).
7) After reviewing the record, the Court finds that there is no basis for Movant's claim of ineffective assistance of counsel. In fact, Movant filed this Motion for Postconviction Relief in an effort to be have his sentence modified. Movant stated in his motion that he is in need of a treatment program because he does not believe addiction is a crime, but rather a sickness. Movant even stated that he "was hoping that [the] judge realized that [he needed a treatment program] and modified/reduced [his] sentence." There is no indication that Movant was misinformed by counsel, or that counsel committed any errors. Indeed possession and/or use of controlled substances is a crime as well as a violation of conditions of probation. The fact that Movant wanted his sentence modified, is not grounds for relief on a claim for ineffective assistance of counsel.
Movant even states in his Motion for Postconviction Relief: "I did not know who or where to write concerning this."
8) Further, since the date that Movant filed this Motion for Postconviction Relief, Movant's sentence was modified to allow attendance at Green Tree in lieu of Key. This Court finds Movant's request for a sentence modification to be moot and his allegations of ineffective assistance of counsel to be completely without merit. The motion, therefore, is summarily dismissed pursuant to Rule 61(d)(4).
For the reasons stated above, defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.