Opinion
ID No. 0706015657(R-1).
September 15, 2008.
Edward C. Gill, Esquire, Georgetown, DE.
John W. Donahue, IV, Esquire, Department of Justice Georgetown, DE.
Dear Mr. Gill and Mr. Donahue:
This is the Court's decision as to the Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. It is denied.
BACKGROUND
On February 25, 2008, the day before a scheduled trial, the Defendant pled guilty to aggravated menacing, maintaining a vehicle, and delivery of marijuana.
On April 4, 2008, with the benefit of a presentence investigation, Defendant was sentenced to a period of five (5) years on the delivery of marijuana offense, suspended after serving two (2) years and a successful completion of the Greentree program for the Level 4 Crest program. Upon successful completion of the Level 4 Crest program, he was required to serve eighteen (18) months at Level 3 for Crest aftercare. He received a suspended sentence for both the aggravated menacing and the maintaining a vehicle charges.
The present motion was filed on June 26, 2008 and it is timely. It raises claims of ineffective assistance of counsel. There are no procedural bars.
In the Rule 61 Motion, Defendant alleges the following:
Ground 1
In Ground 1, defense counsel is alleged to have been ineffective for failing to file a motion for severance because the marijuana charge arose on July 13, 2007 and the aggravated menacing charge arose on July 24, 2007. There is an allegation that there was no connection between the offenses, and that a motion for severance should have been filed, or at least discussed with the Defendant.
Ground 2
In Ground 2, defense counsel is alleged to have been ineffective for not filing a suppression motion because a search of the Defendant's home and motor vehicle occurred without a warrant and a gun was located. The gun was used in the aggravated menacing. The Motion further alleges that this illegally obtained evidence forced the Defendant into entering a guilty plea.
Ground 3
In Ground 3, the Defendant alleges that he was arrested at his home without a warrant and therefore a Motion to Suppress should have been filed. The Defendant further alleges that the illegally-obtained evidence, i.e., the gun which was found, was used to force the Defendant into a guilty plea.
Ground 4
In Ground 4, the Defendant alleges that he knew when he sold marijuana that he was selling it to an undercover officer and that there was a duress defense. Trial counsel is alleged to have been ineffective for not developing the defense of duress.___
Ground 5
In Ground 5, trial counsel is alleged to have been ineffective for failing to review audio tapes of the Defendant's statement and the complaining witness in the aggravated harassment case with the Defendant. It is complained that he did not share a copy of the tapes with the Defendant.
Ground 6
In Ground 6, defense counsel is alleged to have been ineffective for not seeking to have the gun tested for fingerprints.
Ground 7
In Ground 7, trial counsel is alleged to have been ineffective for not subpoenaing the cashier at the gas station where the aggravated menacing occurred. The Motion alleges that the cashier would have testified consistently with the Defendant as to the location of the Defendant's vehicle and the victim's vehicle. Defendant complains that without this eyewitness being subpoenaed, he was forced to enter a guilty plea the day before trial.
Pursuant to Rule 61(g), the Court directed that the record be expanded and requested trial counsel to respond to the allegations by way of affidavit.
Trial counsel's responses pursuant to affidavit are as follows:
Ground 1
Trial counsel reports that it was an intentional decision on the part of the Defendant that the cases should not be severed because the Defendant believed they were intertwined. The person that he was alleged to have threatened at the gas station was the person who forced the Defendant to participate in the sale of the marijuana. This was the duress defense. Trial counsel reports that this was a bare allegation on the part of the Defendant that was dropped and revived several times. Had the case gone to trial, Defendant's defense would have been duress.
Ground 2
Trial counsel reports the issue concerning the search and location of the gun was fully discussed with the Defendant. The problem was that there was documentation that the Defendant's mother told police there was a gun in her car and gave consent to search the car and to seize and unload the weapon. Further, she gave consent to search her home. She told the police to request permission from the Defendant to search his room. The police did that, and the Defendant gave his consent to search.
Ground 3
Defense counsel reports he is unaware of the basis for asserting that the Defendant could not have been arrested at his home following the recovery of the gun.
Ground 4
Trial counsel reports that the Defendant told the police officers that he was acting under duress when he sold the marijuana. Trial counsel reports that the allegation addressed was raised and dropped several times by the Defendant: and although there was no corroboration of same, the Defendant would have testified to this in his defense at trial.
Ground 5
Trial counsel advises he does not recall reviewing the tapes with the Defendant.
Ground 6
Trial counsel advises that the gun was not tested for fingerprints because the Defendant acknowledged his guilt to his attorney.
Ground 7
Trial counsel advises he is unaware of evidence demonstrating a conflict between the placement of the Defendant's vehicle and the victim's vehicle at the time of the alleged aggravated harassment.
On September 4, 2008, the Court was advised that the Defendant would not be filing a response to his trial attorney's affidavit.
Having considered the Motion for Postconviction Relief, the affidavit of trial counsel, the Court's file, the transcript of the guilty plea, and the presentence investigation, I find that the Motion should be dismissed.
To succeed on a Motion for Postconviction Relief, the Defendant must establish that his trial attorney committed serious errors or omissions in representing him, and that these errors or omissions actually prejudiced him. Strickland v. Washington, 466 U. S. 668 (1984).
I am satisfied after review of the above materials that the Defendant has failed to establish that his trial attorney committed any errors or omissions which forced the Defendant into pleading guilty.
The affidavit of trial counsel establishes that there was communication between trial counsel and the Defendant in developing potential defenses.
With the consents being obtained and defense counsel being aware of same, he had no basis on which to file a Motion to Suppress. Following the report of the aggravated menacing, the police obtained the name and then the address of the Defendant. They followed up immediately and went to his house. The police obtained the consent from his mother for the search in which the gun was found. Based on these circumstances, the police had the legal authority to take the Defendant into custody without an arrest warrant. Finally, I note that the gun was found in the car, not the house.
The defense of duress was fully discussed by trial counsel and the Defendant pursuant to the affidavit of trial counsel and this is not refuted.
Whether or not defense counsel specifically reviewed the tapes with the Defendant prior to his entering the guilty plea was not a factor in the decision to enter a guilty plea. The Defendant had admitted his guilt to his lawyer and chose to enter the guilty plea on the day prior to trial. I also note that much discussion and review usually takes place in the last twenty-four (24) hours before trial. Whether the tapes would have been reviewed prior to trial is speculative. Based upon the Defendant's admission to his lawyer that he was guilty concerning the gun offenses, I do not find trial counsel to have committed error in not expending funds to have the gun tested for fingerprints.
Finally, as to the matter concerning whether or not the cashier should have been subpoenaed, I find that the Defendant has not established that this witness would have supported his defense, nor do I find the lack of this witness prejudiced the Defendant. This is a collateral issue at best, and there has been no proffer as to this witness testifying that the Defendant did not commit the offenses charged. The Defendant admitted to the Court that he was guilty and had previously advised his own attorney that he was guilty.
The defense has failed to establish its burden of proof that trial counsel committed errors and/or omissions by any objective standard which resulted in the Defendant's decision to plead guilty.
Defendant's Motion for Postconviction Relief is denied.
IT IS SO ORDERED.