Summary
holding claims of ineffective assistance of counsel filed more than 16 years after conviction became final were procedurally barred
Summary of this case from State v. TiganiOpinion
ID No. 88S01376DI.
Submitted: December 28, 2006.
Decided: March 22, 2007.
Motion for Postconviction Relief — Denied.
Richard H. Lum, Jr., Smyrna, DE.
Department of Justice, Georgetown, DE.
Office of the Public Defender, Georgetown, DE.
Pending before the Court is a motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") which defendant Richard H. Lum, Jr. ("defendant") filed on August 17, 2006, and amended on September 18, 2006. This is my decision denying the motion.
Defendant was arrested on June 9, 1988, on charges of unlawful sexual intercourse in the first degree in violation of 11 Del.C. § 775 and burglary in the second degree in violation of 11 Del. C. § 825(1). On June 9, 1988, he was taken before Justice of the Peace Court Judge Sheila Blakely, who set bond and sent the matter to the Court of Common Pleas for a preliminary hearing.
In 11 Del. C. § 775, it was provided in pertinent part:
(a) A person is guilty of unlawful sexual intercourse in the first degree when he intentionally engages in sexual intercourse with another person and any of the following circumstances exist:
(1) The intercourse occurs without the victim's consent, and he inflicts serious physical, mental or emotional injury upon the victim:
a. On the occasion of the crime; or
b. During the immediate flight from the crime; or
c. During an attempt to prevent the reporting of the crime; or
(2) The intercourse occurs without the victim's consent and the defendant was not the victim's voluntary social companion on the occasion of the crime and had not permitted the defendant sexual intercourse within the previous 12 months. . . .
In 11 Del. C. § 825, it was provided in pertinent part:
A person is guilty of burglary in the second degree when he knowingly enters or remains un lawfully:
(1) In a dwelling with intent to commit a crime therein; or
(2) In a building and when, in effecting entry or while in the building or in immediate flight therefrom, he or another participant in the crime:
a. Is armed with explosives or a deadly weapon; or
b. Causes physical injury to any person who is not a participant in the crime.
The Public Defender's Office represented defendant throughout the proceedings. Karl Haller, Esquire was lead attorney and Howard Hudson, Esquire assisted Mr. Haller.
On June 16, 1988, defendant waived his preliminary hearing. That waiver is evidenced by a certified copy of the preliminary hearing calendar, a copy of which is attached hereto as Exhibit A. The matter was transferred to Superior Court at that time. On September 21, 1988, the State of Delaware ("the State") filed an information with Superior Court charging defendant with unlawful sexual intercourse in the first degree in violation of 11 Del. C. § 775 and with burglary in the second degree in violation of 11 Del. C. § 825.
On October 14, 1988, defendant appeared in open court with Mr. Haller for his arraignment. A copy of the transcript of that proceeding is attached hereto as Exhibit B. The following colloquy took place:
MS. BRADY: The State moves the arraignment of Richard Lum.
MR. HALLER: Mr. Richard Lum is going to plead not guilty. Richard has discussed jury and non-jury, and he was kind of wavering. I basically told him, "Why don't we just ask for the jury?"
Is that about it, Richard?
THE DEFENDANT: Yes.
THE COURT: Mr. Lum, you heard my discussion with the previous defendant?
THE DEFENDANT: Yes, Your Honor.
THE COURT: *** At this stage, you indicate that you prefer a jury trial; is that correct?
THE DEFENDANT: Yes, Your Honor.
Defendant's trial took place on January 9 and 10, 1989. Trial counsel objected to an amendment to the information. Transcript of January 10, 1989, Trial Proceedings at B-39-41. A jury found defendant guilty as charged.
On March 3, 1989, defendant was sentenced. As to the conviction for unlawful sexual intercourse in the first degree, he was sentenced to Supervision Level 5 for the balance of his natural life, and the first twenty (20) years were without benefit of probation, parole or any other reduction. As to the burglary in the second degree conviction, he was sentenced to Level 5 for a period of five (5) years, to run consecutive to the preceding sentence.
Defendant appealed from the judgment of conviction. Of the three grounds raised on appeal, only one is pertinent to this pending motion. That ground is that the trial court erred in allowing the State to amend the information shortly before trial to include the words "or remains" in the burglary count. Lum v. State, Del. Supr., No. 106, 1989, Holland, J. (Dec. 20, 1989) at 3-4. The Supreme Court affirmed the judgments of convictions in this order. Id. The Supreme Court mandate is dated January 5, 1990.
By letter dated August 4, 1990, defendant sought a form for postconviction relief. The Prothonotary's Office sent it to him on September 15, 1990.
Rule 61 became effective on January 1, 1988. Webster v. State, 604 A.2d 1364 (Del. 1992).
In October, 1992, defendant prepared a document captioned "Motion to Show Cause", which is located at page C-6 of defendant's exhibits to his postconviction motion. Although he seems to think he filed it with the Court (page 2 of his motion for postconviction relief), defendant never filed that document with this court. Docket sheet. This Motion to Show Cause is dated October 1, 1992. The notary signed the affidavit of service on October 1, 1992. In that motion, defendant alleges he waived his preliminary hearing on advice of counsel to receive police reports. He argued as follows. He had not waived his right to be indicted by a Grand Jury; the record shows he never waived his right to be indicted; and consequently, the Superior Court did not have jurisdiction over him.
On April 16, 2001, defendant filed a motion to correct his sentence with regard to the rape first conviction. The Court modified the sentence to reflect the sentencing statute in effect at the time of his sentencing. The modification removed the word "natural" before life, and the Court thereby sentenced him to life in prison. However, the Court also ruled that the sentence itself was within the legal and statutory guidelines in effect at the time it was imposed. State v. Lum, Del. Super., Def. ID# 88S01376DI, Graves, J. (April 19, 2001). Defendant appealed this decision. The Supreme Court denied his appeal. Lum v. State, Del. Supr., No. 211, 2001, Holland, J. (Jan. 15, 2002).
Defendant filed his first motion for postconviction relief on August 17, 2006 and amended it on September 18, 2006.
Defendant filed his motion over sixteen (16) years after the judgment of conviction became final on January 5, 1990. Obviously, the Court examines the procedural bars of Rule 61(i) before considering any of defendant's claims. The procedural bars contained in Rule 61(i) read as follows:
(i) Bars to relief. (1) Time limitation. A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
(2) Repetitive motion. Any ground for relief that was not asserted in a prior postconviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim in warranted in the interest of justice.
(3) Procedural default. Any ground for relief that was not asserted in the proceedings leading to the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows
(A) Cause for relief from the procedural default and
(B) Prejudice from violation of the movant's rights.
(4) Former adjudication. Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice.
(5) Bars inapplicable. The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
In his motion, defendant seems to argue that the alleged filing of the previously referenced Motion to Show Cause somehow prevents the application of the time bar in this matter. The Motion to Show Cause never was filed with this Court. To the extent there is an argument based on that motion, it fails. Defendant also argues generally that the procedural bars are overcome by the exceptions contained in Rule 61(i)(5); i.e., the Court lacked jurisdiction and/or there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading the judgment of conviction.
In grounds one and three of his postconviction motion, defendant makes a multitude of claims of ineffective assistance of counsel. These claims are procedurally barred because they were not filed by January 5, 1993. Super. Ct. Crim. R. 61(i)(1). Defendant does not attempt to establish how any exceptions to the time bar save these ineffective assistance of counsel claims. The general, blanket assertion that Rule 61(i)(5) exceptions apply does not establish the applicability of the exception(s). Thus, these claims are procedurally barred and the Court denies them.
Defendant's second ground for relief is that the Court lacks jurisdiction over his case. He argues that the waiver of preliminary hearing was improper; he never was indicted; he did not waive his right to proceed by indictment; and this Court, consequently, had no jurisdiction over his case. The jurisdictional exception to the procedural bars contained in Rule 61(i)(5) requires the Court to address these arguments.
There is nothing in the file or on the docket sheet evidencing waivers of preliminary hearing and/or proceeding by indictment. In a letter dated December 14, 2006, the Court asked the Office of the Public Defender and the Attorney General's Office to check their respective files for any documents evidencing waivers of preliminary hearing and/or proceedings by indictment. Docket Entry 40. The Public Defender's Office explained that it only is obligated to keep its files for three (3) years and then it sends them to Archives for destruction. Docket Entry 42. The Attorney General's Office explained as follows:
Although there is a handwritten note on the front cover of the file folder, dated June 16, 1988, indicating the defendant waived preliminary hearing, there is no written document in our file memorializing defendant's waiver of preliminary hearing, waiver of indictment and/or agreement to receive the police report in exchange for waivers.
Docket Entry 41.
The Court has determined from the Court of Common Pleas' June 16, 1988 calendar that defendant did waive his preliminary hearing on June 16, 1988. It is not possible to obtain a transcript of that proceeding because the Court of Common Pleas only retains its transcripts for ten (10) years. Thus, it is impossible to determine if the waiver of the preliminary hearing was oral or on a written document. Furthermore, it is impossible to determine if, at the time of his preliminary hearing, defendant orally or in writing waived his right to proceedings by indictment and agreed to proceeding by information.
The file does contain some information regarding defendant's case which is pertinent to the pending motion. This information comes from portions of transcribed pages which were filed with the Supreme Court by cover letter dated June 5, 1989, wherein Mr. Haller lists for the Superior Court his efforts in preparing the defense:
Now, there are some items that are not on that list, and also some of the items on that list require explanation. It is for that reason I am asking a record be made ragarding [sic] this list and defense efforts on the list.
This all started with our procedure, which occurred the day before the preliminary hearing. It is our procedure in Sussex County to obtain Exhibit A and the Probable Cause sheets from the Court of Common Pleas' file prior to the preliminary hearing, so we have these charging documents at the preliminary hearing. This enables us to better prepare for the preliminary hearing and, also, discuss these documents with the defendant, when we see him at preliminary hearing.
It is our policy to have one of the trial attorney discuss the charging document within 10 days of the arrest. This was done in Mr. Lum's case. I personally reviewed Exhibit A and the Probable Cause sheets that we obtained on June 16, 1988, with Mr. Lum. We do this to assure the defendant has an understanding of the charges and evidence against him at the earliest stage.
* * *
Aside from these visits in prison by myself and Public Defender personnel, he has been seen and had in-depth discussions in court with me. This occurred primarily on June 16, and also on September 14.
Transcript from January 10, 1989, proceedings attached to June 5, 1989, letter to Delaware Supreme Court, 43-45.
Although Mr. Haller stated "September 14", the arraignment was on October 14. I consider the reference to September 14 to be a misstatement. The importance of this information is it establishes that Mr. Haller met with defendant in court on June 16, 1988 and October 14, 1988. Also important is Mr. Haller's verification that he had obtained a copy of the police report from the State. Id. at 45.
It is not possible to rely on defendant's contentions for what happened at that time because the documents we have confirm his recitation of events is flawed. I set forth information below which supports this conclusion.
In his Motion for Postconviction Relief, Docket Entry # 38 ("D.E. 38 at ___"), defendant asserts what occurred. (Defendant did not attach the exhibits referenced in the following passage.) Defendant states at page 8:
Defendant's case was transfered from the court of common pleas on 6-16-1988, to the prothonotary office of Superior Court with out a preliminary hearing, see Exhibit — D, NBR 001. Defendant's counsel told defendant to waive my preliminary hearing so he could get a copie of the police report. When I signed the waiver of preliminary hearing, I wrote a big X in the big empty space on the form. See exhibit-P, the prothonotary office of superior court dose not have a copie of my waiver of preliminary hearing. So the waiver of preliminary hearing was done after defendant's case was transfered from the Court of Common Pleas to Superior Court. [All grammatical and spelling errors in original.]
At page 2 of this same motion, defendant states: "The defendant was only in the C.C.P. on 6/9/88 and was never in a court again until Trial by Jury on 1/9/89."
The record shows the following. Defendant was in Justice of the Peace Court on June 9, 1988. Defendant was in the Court of Common Pleas on June 16, 1988. Defendant did waive his preliminary hearing on June 16, 1988. Defendant also was in Superior Court, with Mr. Haller at his side, at his arraignment on October 14, 1988, when a not guilty plea was entered.
In the previously referenced Motion to Show Cause dated October 1, 1992, defendant states at page 1:
On June 9, 1988 the Defendant was arressted [sic]. . . .
Thereafter the Defendant (on advice of counsel) waived his preliminary hearing to receive the police reports. This waiver was conducted almost 4 months after arrest and not in open court or before a judge. The Defendant was never arrigned [sic] in open court nor did he plea to the charges. From the time the Defendant was arrested until he went to trial he was never before a judge other than in J.P. Court. On September 21, 1988 the State filed an information . . . filed in this Court September 26, 1988.
As noted above, the waiver actually took place on June 16, 1988, and defendant pled not guilty before a Superior Court Judge on October 14, 1988.
Finally, in his Opening Brief in Lum v. State, Del. Supr., No. 211, 2001 at 3, defendant states:
On 6/9/1988 defendant was taken to the court of Common Pleas by an officer at which time defendant was incarcerated in lieu of bail. On 6/16/1988 Court of Common Pleas transmitted defendant's case to the prothonatary [sic] office of the Superior Court with out a preliminary hearing. Defendant did waive preliminary hearing but it was done after 6/16/1988. Defendant never waived in open court the right to be prosecuted by indictment. Information . . . was filed on 9/26/1988, 15½ weeks after defendant was arrested.
Again, defendant's factual recitations are incorrect. The documentation in the file evidences that on June 9, 1988, defendant appeared before Justice of the Peace Sheila Blakely in Justice of the Peace Court No. 2. On June 16, 1988, defendant waived his preliminary hearing. Thereafter, the case was transferred to Superior Court.
For the reasons stated below, the waiver of the preliminary hearing is not an issue. The waiver of indictment is the focus of this decision. There is no written waiver of the right to be indicted in the file. There is no point in having a hearing on this motion because there is no record which can be made which will produce any such written waiver. Furthermore, defendant's confused recitation of events establishes he cannot definitively establish there was no waiver of indictment. Thus, I address defendant's arguments without a hearing.
Defendant's jurisdictional arguments based on the waiver of preliminary hearing are misdirected. A preliminary hearing's purpose is to determine if there is a reason to hold a defendant; it addresses the probable cause for the arrest. State v. Bailey, Del. Super., Def. ID# 0009007758, Silverman, J. (Dec. 13, 2004) at 4, app. dism., Del. Supr., No. 8, 2005, Ridgely, J. (April 11, 2005). Not having a preliminary hearing is not a jurisdictional issue. Since this is not a jurisdictional issue and since defendant has not shown an exception to the procedural bar exists, the argument is time-barred. Super. Ct. Crim. R. 61(i)(1). Even if the Court addressed the argument, it would fail. The most important reason it would fail is it is meritless; the record shows defendant did waive his preliminary hearing at the Court of Common Pleas on June 16, 1988. Even if there was no preliminary hearing, such would have been inconsequential as a preliminary hearing has no bearing on a subsequent conviction. Id. at 4-5.
I turn now to defendant's argument that he did not waive his right to be indicted. A criminal offense within the exclusive jurisdiction of the Superior Court must be prosecuted by indictment. Art. 1, § 8, Del. Const. of 1897; Super. Ct. Crim. R. 7(a). However, except in the case of a capital crime, a defendant can waive that right in open court or in writing. Super. Ct. Crim. R. 7(a), (b).
Defendant has waived the right to make this jurisdictional argument. Defendant's request to the Prothonotary for a postconviction form evidences he was aware of that remedy in August, 1990. The Motion to Show Cause, which defendant never filed with this Court, evidences he was aware of the jurisdictional argument in October, 1992. He had time to make the jurisdictional argument. Had he made the argument in a timely manner, there would have been the opportunity to develop a record on the issue. Copies of the transcript from the preliminary hearing and the files from the Office of the Public Defender and the Attorney General's office would have been available. The attorneys involved in the proceedings would have had a better opportunity to recall factual events. The inexplicable time delay has foreclosed these avenues of establishing that defendant waived the right to proceed by indictment. Thus, defendant's motion is denied on the grounds he waived this jurisdictional argument.
Alternatively, the Court rules that defendant has failed to establish no waiver occurred. At this stage of the proceedings, seventeen (17) years after his conviction is final, all indications are that defendant waived his right to be indicted. The Court concludes he did waive this right and the jurisdictional argument fails.
The longstanding practice in Sussex County has been for a defendant to waive his or her preliminary hearing and right to be indicted in exchange for a copy of the police report. In re Miller, Del. Super., Def. ID# 92S05488DI, Graves, J. (Oct. 11, 1995) at 5-6, app. dism., Del. Supr., No. 342, 1996, Berger, J. (Aug. 28, 1996); Floyd v. State, Del. Super., Cr. A. Nos. S88-10-0142, et al., Lee, J. (Dec. 11, 1991),app. dism., 1992 Del. LEXIS 50 (Del.Supr.Ct. 1992) (establishing the practice was in effect at the time of defendant Lum's arrest). Defendant waived his preliminary hearing and received a copy of the police report. There is no reason to think he did not waive his right to indictment, and in fact, all indications are that he did. This was a serious case with a life sentence as punishment. The prosecutor, M. Jane Brady, was an experienced prosecutor. She would not have jeopardized such a serious case by proceeding by information absent defendant's waiver of his right to indictment. Had defendant not waived his right to indictment, she would have taken the case to the Grand Jury, which, obviously, would have found probable cause for the charges. Defense counsel were experienced, and they did not object to the proceeding by information. In fact, the information was amended over defense counsel's objections. Certainly, at this point when defense counsel were focused on the information, if defendant had not waived proceedings by indictment, defense counsel would have raised the issue. Thus, all indications are that defendant waived his right to proceed by indictment. The lack of a written document in the Court's file is not sufficient to establish he did not waive the right to indictment and thereby award him a new trial seventeen (17) years after his conviction is final. At this stage of the proceedings and with the behavior of the parties consistent with defendant having waived his right to indictment, the Court presumes the correct procedures were followed and defendant waived.
Again, I note the waiver could have been oral at the time defendant waived his preliminary hearing.
I say obviously because the probable cause standard has a much lower threshold than the "proof beyond a reasonable doubt" threshold which the State met in obtaining convictions.
Defendant has the burden of establishing there was no waiver. His clearly erroneous recitations of facts show he cannot meet this burden. Thus, the Court denies this ground for relief.
In conclusion, the Court denies defendant's motion for postconviction relief.
IT IS SO ORDERED.
Exhibit A
PROCEEDINGS
MS. BRADY: The State moves the arraignment of Richard Lum.MR. HALLER: Mr. Richard Lum is going to plead not guilty. Richard has discussed jury and non-jury, and he was kind of wavering. I basically told him, "Why don't we just ask for the jury?"
Is that about it, Richard?
THE DEFENDANT: Yes.
THE COURT: Mr. Lum, you heard my discussion with the previous defendant?
THE DEFENDANT: Yes, Your Honor.
THE COURT: It is one of those things that I suppose you will decide the wisdom of your decision after a verdict is reached. If it is a favorable one, you made the right choice. If it is an unfavorable one, you may wish you had done it another way.
There is certainly no guarantee of the outcome, regardless of which method you choose. But you heard the pros and cons from a previous discussion At this stage, you indicate that you prefer a jury trial; is that correct?
THE DEFENDANT: Yes, Your Honor.