Opinion
Criminal Action No. S98-07-0598.
Submitted: June 8, 2000.
Decided: July 6, 2000.
DOB: 2/17/50, DEE. ID# 9807015405, SEI: 00394052, Trafficking Cocaine, S98-07-0599, Possession with intent to deliver cocaine.
COMMISSIONER'S PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS REGARDING DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF.
This is a motion for postconviction relief which defendant Andrew H. Miller ("defendant") has filed pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The Court has referred the motion to the Commissioner, and this constitutes proposed findings of fact and recommendations regarding the Rule 61 motion.
PROPOSED FINDINGS OF FACT
On July 22, 1998, defendant was arrested on the following charges: trafficking in cocaine in violation of 16 Del. C. § 4753A(a)(2)c; possession with intent to deliver a narcotic schedule II controlled substance in violation of 16 Del. C. § 4751 (a); maintaining a vehicle for keeping controlled substances in violation of 16 Del. C. § 4755 (a)(5); possession of drug paraphernalia in violation of 16 Del. C. § 4771; driving without a valid license in violation of 21 Del. C. § 2701; and driving without proof of insurance in violation of 21 Del. C. § 2118 (p). Defendant agreed to the prosecution proceeding by information as opposed to indictment. The State of Delaware ("the State") filed an information containing these charges on August 12, 1998. Defendant pled not guilty to these charges.
Thomas D.H. Barnett, Esquire of the Public Defender's Office initially represented defendant. On numerous occasions, defendant complained to the Court that Mr. Barnett's representation was ineffective. He informed the Court by letter dated November 16, 1998, that he had "filed a 1983 form as to the ineffectiveness of" counsel and he had filed a letter with Office of Disciplinary Counsel regarding his counsel. Mr. Barnett moved to withdraw as trial counsel in light of the fact that defendant had filed a suit against him in federal court. The Court denied the motion.
Mr. Barnett resigned from the Public Defender's Office, and Merritt Burke, III, Esquire began representing defendant. He represented him during the presentation of a motion to suppress. The Court heard, and denied, the motion.
Defendant also sought to file motions on his own throughout the proceedings.
Before his final case review and trial were scheduled to be held, Edward C. Gill, Esquire entered his appearance on behalf of defendant. Mr. Gill filed a motion seeking the disclosure of the identification of a confidential informant. The Court denied this motion, too. Mr. Gill also filed another motion to suppress, which was not presented because on May 18, 1999, defendant entered into a plea agreement pursuant to Superior Court Criminal Rule
The Plea Agreement dated May 18, 1999, provided that defendant would plead guilty to charges of trafficking in cocaine and possession with intent to deliver cocaine, and in exchange, the State would dismiss all remaining charges. The parties agreed to the sentence to be imposed.
Before the plea colloquy began, defendant affirmed that what he was to say was the truth. He agreed that his attorney had informed him of his trial, constitutional and appellate rights which he was waiving by entering into the plea agreement; his attorney had gone over with him the penalties involved in both the statutes and the sentencing guidelines; his attorney had told him that he would be losing his driving privileges for a period of three (3) years as to each charge; and his attorney explained to him that he would be waiving his right to appeal the Court's decision denying his motions seeking suppression of evidence and disclosure of a confidential informant as well as his right to have the outstanding suppression motion heard.
Defendant agreed that he had reviewed the Plea Agreement and the Truth in Sentencing Guilty Plea Form and he understood both. On the Truth in Sentencing Guilty Plea Form, defendant responded "Yes" to the following question:
Have you freely and voluntarily decided to plead guilty to the charges listed in your written plea agreement?
He responded "No" to the following question:
Has your attorney, the State or anyone threatened or forced you to enter this plea?
Defendant checked the box beside "Yes" in response to the following question:
Are you satisfied with your lawyer's representation of you and that your lawyer has fully advised you of your rights and of your guilty plea?
Defendant also affirmed in open court that he had no complaints about Mr. Gill's legal representation.
Defendant acknowledged to the Court that he understood that by pleading guilty, he was giving up the following rights: to be presumed innocent, to require the State to prove the charges against him beyond a reasonable doubt, to a speedy and public trial, to trial by jury, to cross-examine witnesses, and to testify or not testify on his behalf.
Defendant then admitted that he committed the crimes of trafficking in cocaine and possession with intent to deliver cocaine.
The Court accepted the Rule 11(e)(1) (c) pleas, and sentenced the defendant in accordance with the agreement.
As to the trafficking in cocaine conviction, the Court sentenced defendant in pertinent part as follows:
Effective May 18, 1999, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of fifteen (15) years, giving credit for time served on this charge. After serving five (5) years at Level 5, the balance of this sentence is suspended for one (1) year at Supervision Level 4 (Home Confinement), followed by nine (9) years at Supervision Level 3, consecutive to any probation previously imposed.
As to the possession with intent to deliver cocaine conviction, defendant was sentenced in pertinent part as follows:
The defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of five (5) years, consecutive to . . . [the trafficking in cocaine sentence]. After serving three (3) years at Level 5 the balance of this sentence is suspended for two (2) years at Supervision Level 3, consecutive to . . . [the trafficking in cocaine sentence]
Defendant did not appeal his convictions or sentences. On May 16, 2000, he filed this Rule 61 motion.
In his motion, defendant advances the following grounds for relief. First, he was denied his right to a speedy trial. Second, Mr. Barnett and Mr. Burke provided ineffective assistance of counsel. In ground three, defendant alleges: "V AMENDMENT, DUE PROCESS. ALSO XIV Amendment Due process and equal protection". Defendant also alleges his case was tainted by fraud "from day one." He further asserts: "false statements ( 18 U.S.C.A. 1001) + Falsifying a record model penal code 22.4 . . . tJSCA 1506, 2771, 2073". Finally, defendant maintains that there was an illegal search and seizure. Defendant submits facts and arguments, summarized below, in support of these grounds.
In support of the ground asserting ineffective assistance of counsel, defendant makes numerous complaints against Mr. Barnett and Mr. Burke.
He states the following regarding Mr. Barnett. Mr. Barnett failed to answer questions which defendant posed to him in letters, failed to perform an investigation, complicated defendant's bail situation, sent a letter to the Court informing it of how much time he was spending on defendant's case and defending the 1983 claim, filed a motion to withdraw as counsel, and quit the Public Defender's Office so that defendant was assigned to another Public Defender.
The allegations against Mr. Burke are as follows. Mr. Burke did not believe in defendant's innocence and told defendant to become an informant. Mr. Burke was unprepared during the suppression hearing and did not allow defendant to testify at that hearing. He further alleges:
Mr. Burke informed the Def. [sic] that his main witness [sic] had made the statement that he didn't know the def. [sic] even tho [sic] they've know [sic] each other for Approx. [sic] 5 years. Def. [sic] later found that Mr. Burke had intimidated his witness [sic] to the point that he made such statements about not knowing the Def. [sic]
He goes on to assert that at the suppression hearing, Mr. Burke failed to question the police officers about perjurious statements, missing evidence, time periods on the police reports, and false statements made on police reports and discovery.
Defendant concludes that "[t]here was complete lack in trust, communication and or investigation [sic] between the def [sic] and the lawyer's [sic]."
Defendant sets forth numerous allegations of police misconduct in his complaint. The categories of these allegations are: inconsistencies and omissions in the police reports; inconsistencies in the police officers' testimony regarding what occurred at the police station; failure of the police to Mirandize him; missing grams of cocaine; and police coercion causing him to talk to them.
Defendant makes other complaints in support of his Rule 61 motion. The Court's factual determination in its decision on the suppression motion was erroneous. The Court erred in not granting Mr. Barnett's motion for disqualification. His pretrial placement at Delaware Correctional Center prevented him access to his lawyer. Defendant's plea offer was not as good as it would have been had his case been pending in a county other than Sussex, which constituted a violation of equal protection of the law. The plea offer was not as lement as it could have been because the police and prosecutor were young and wanted to make names for themselves and because defendant would not give up anyone. The State failed to turn over SUSCOM tapes.
Finally, defendant asserts he was under duress at the time he entered into the plea agreement; he had been held for 299 days, the State used perjured testimony during the suppression hearing, and his lawyer told him that the Court had said it would sentence defendant to fifteen years if he was found guilty and this was the last plea offer to be made.
Although he does not specifically state that he wishes to do so, defendant appears to be seeking to withdraw the pleas since the Court treats allegations of a coerced guilty plea as a motion to withdraw the guilty plea. See State v. Parker, Del. Super., Cr. A. Nos. S90-06-0427, 0443, 0440, 0439, 0442., Lee, J. (January 31, 1992) at 4, aff'd, Del. Supr., No. 89, 1992, Moore, J. (November 17, 1992)
DISCUSSION AND RECOMENDATIONS
This Rule 61 motion may be addressed and resolved without the necessity of a hearing. Thus, I recommend that the Court not hold a hearing on this motion.
Defendant seeks to withdraw his pleas pursuant to Rule 62., in accordance with Superior Court Criminal Rule 32(d). This Court first must determine if there are any procedural bars to the claims in the postconviction relief motion, and if there are, the Court must apply them. Younger v. State,. Del. Supr., 580 A.2d 552, 554 (1990)
The threshold procedural issue to examine is the timeliness of the motion. A motion for postconviction relief must be brought within three years from the date when the conviction became final. Rule 61(i)(1). The motion at hand was timely filed. In addition, since this is defendant's first motion for postconviction relief, the bar of Rule 61(i)(2) does not apply. Thus, I recommend the Court conclude there are no procedural bars to defendant's motion.
(i) Bars to relief. (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 is warranted in the interest of justice.
I examine the ineffective assistance of counsel claims first. As explained in Harris v. State, Del. Supr., No. 550, 1999, Holland, J. (June 21, 2000) at 7:
In the context of a guilty plea, a successful claim of ineffective assistance of counsel is one that demonstrates that (i) "`counsel's representation fell below an objective standard of reasonableness;'" and (ii) "counsel's actions were so prejudicial "that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial.'" [Citation omitted.]
In this case, defendant cannot demonstrate that Mr. Barnett and Mr. Burke's actions were so prejudicial that but for their alleged errors, he would not have pled guilty and would have insisted on going to trial. See id. Defendant's numerous letters and motions clearly establish that at the time he entered into the plea agreement, he was well aware of the alleged representation deficiencies of Mr. Barnett and Mr. Burke. See id. Despite his complaints with these attorneys, defendant entered into the plea agreement. Thus, I recommend the Court conclude that since defendant cannot meet the prejudice prong, his ineffective assistance of counsel claims fail.
I turn now to examine the voluntariness of the pleas. As explained in Whalen v. State, Del. Supr., No. 408, 1999, Holland, J. (May 18, 2000) at 3:
A defendant's statements to the Superior Court during the plea colloquy are presumed to be truthful and "pose a "formidable barrier in any subsequent collateral proceedings.'" In the absence of clear and convincing evidence to the contrary, a defendant is bound by his answers on the Truth in Sentencing plea form and by his sworn testimony prior to the acceptance of the plea. [Citations omitted.]
In this case, the Truth in Sentencing Guilty Plea Form and the plea colloquy establish that defendant willingly and voluntarily entered into the pleas. Defendant has not presented any evidence establishing that he did not willingly and voluntarily enter into the pleas. Thus, I recommend the Court conclude that defendant's contention of duress fails.
Defendant further asserts that his plea offer was not as lement because the police and prosecutor were young and wanted to make names for themselves and because defendant would not inform on anyone. "[A] defendant waives his right to challenge a voluntary and intelligent plea bargain that provides a benefit to him." Whalen v. State, supra. In this case, defendant's plea bargain provided a benefit to him; consequently, I recommend that the Court conclude defendant has waived his right to challenge this bargain.
Finally, I examine defendant's advancement of alleged errors which took place before he entered the pleas. Defendant's assertions of a denial of his speedy trial rights, police misconduct, illegal search and seizure, error in the Court's pretrial decisions, constitutional violations resulting from this pretrial placement at Delaware Correctional Center, constitutional violation of his rights in connection with the attractiveness of the plea offer, and the State's failure to turn over SUSCOM tapes are all issues which defendant waived by entering into the pleas. Fullman v. State, Del. Supr., No. 268, 1988, Christie, C.J. (February 22, 1989) at 2; State v. Thomas, Del. Super., Cr.A. Nos. 1N95-ll-1520R1, et seq., Gebelein, J. (March 23, 2000); State v. Hall, Del. Super., Carpenter, J. (December 23, 1997); State v. Priest, Del. Super., Cr. A. Nos. IN-86-02-0190-Rl, IN-86-02-0192. Ri, Herlihy, J. (November 15, 1989). I recommend the Court hold that defendant waived these issues by entering into the pleas.
CONCLUSION
Based upon the foregoing, I recommend the Court conclude that defendant is not entitled to withdraw his guilty pleas and that it deny his Rule 61 motion.