Opinion
I.D. No. 9902013130. Cr.A. No. IN99-06-0609RI, 0610RI, 0608RI, 0613RI.
Date Submitted: November 17, 2000.
Date Decided: February 23, 2001.
ORDER
Upon review of Movant Markeith D. Minor ("Movant")'s Motion for Postconviction Relief, 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 Assault First Degree, two counts of Possession of a Firearm During the Commission of a Felony, Trafficking Cocaine 5-50 grams, and a Violation of Probation.
2. Movant pled guilty on June 16, 1999. Movant was sentenced to 25 years at Level 5 suspended after 18 years, followed by 1 year at Level 4, followed by 2 years at Level 3, followed by 4 years at Level 2. Nine years of the 18 years at Level 5 incarceration was a mandatory minimum sentence.
3. In his motion, Movant asserts ineffective assistance of counsel as his grounds for relief. Movant alleges that counsel failed to inform Movant of the duration of the sentence recommended by the State and ordered by the Court, and that counsel erred in waiving a preliminary hearing to file a motion to suppress evidence, which Movant claims counsel failed to file.
4. In reviewing motions for postconviction relief the Court must first determine whether a defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claim. There are no procedural bars under Rule 61 to Movant's claim of ineffective assistance of counsel. A claim of ineffective assistance of counsel is properly brought in a motion for postconviction relief pursuant to Rule 61 because such a claim cannot be raised for the first time on direct appeal.
Bailey v. State, Del.Supr 588 A.2d 1121, 1127 (1991); Younger v. State, Del.Supr., 580 A.2d 552, 554 (1990).
See State v. Mason, Del.Super., Cr.A No. IN93-02-0279-R1, Barron, J. (Apr. 11, 1996) (Mem. Op.) at 6 (citing Supr.Ct.R. 8; Wright v. State, Del.Supr., 513 A.2d 1310, 1315 (1986); Duross v. State, Del.Supr., 494 A.2d 1265, 1267 (1985)); appeal docketed, Del.Supr., No. 203, 1996 (May 6, 1996).
5. The Defendant has the burden of showing in an ineffective assistance of counsel claim that an attorney's conduct did not meet reasonable professional standards and that such conduct was prejudicial to him. The Defendant must make concrete allegations of ineffective and unreasonable conduct by his attorney. Conclusory allegations are legally insufficient to substantiate the claim. A claim of ineffective assistance of counsel based solely on counsel's strategic choices made after a thorough investigation of law and facts is insufficient to prove the claim that counsel's professional performance was ineffective.
Strickland v. Washington, 466 U.S. 688 (1984).
Outten v. State, Del.Supr., 720 A.2d 547 (1998); Dawson v. State, Del.Supr., 673 A.2d 1186, 1196 (1996).
Duffy v. State, Del.Supr., No. 529, 1992, Horsey, J. (Jan. 27, 1993).
Strickland, 466 U.S. 66.
6. Movant's first ground alleges counsel was ineffective because counsel failed to inform Movant of the duration of the sentence recommended by the State and ordered by the Court. Movant claims counsel told him that he was signing a plea agreement for nine years mandatory, when in fact counsel knew the sentence was for 18 years. The Defendant does not point to any evidence that establishes counsel failed to inform the Movant of the sentence recommended and ordered, nor to any evidence that counsel was misleading the Defendant into signing the plea agreement. In fact, this claim is contrary to the record. The plea agreement clearly states the recommendation of the State to be 25 years at Level 5 suspended after 18 years incarceration. In parentheses, it is noted that 9 years of that sentence is to be a mandatory minimum. The Defendant signed the plea agreement in Court and entered the plea as knowingly, intelligently, and voluntarily. Furthermore, counsel followed the guilty plea with a letter to the Defendant explaining the Court's sentence order was compliant with the plea agreement. The fact that Movant now disagrees with his attorney's advice is not a ground for relief on a claim of ineffective assistance of counsel.
7. Movant asserts as his second ground that counsel was ineffective because he erred in waiving a preliminary hearing to file a motion to suppress evidence. Movant claims that he was told to waive the preliminary hearing so that counsel could file for a suppression hearing. Movant does not explain how he could prove this statement. Counsel's affidavit states that there are no notes in the file to suggest a discussion between the Defendant and counsel to waive a preliminary hearing or to file a motion to suppress. The Defendant's allegation fails to identify the grounds for a suppression motion to be filed, and does not articulate any prejudice received by counsel's decision to waive a preliminary hearing. Defendant has failed to assert actual prejudice.
8. Movant next alleges that detectives questioned him without a lawyer or legal guardian present, and that he was a minor at the time of the crime. The affidavit of probable cause states that the Defendant's mother and grandmother were both contacted and both gave permission to interview the Defendant. It also states that while the Defendant was in custody, the Defendant was read his rights and then agreed to make an audio taped statement about the incident. Defendant does not allege that he invoked his right to counsel after his rights were read to him, nor does the Defendant allege any evidence to dispute the validity of the waiver of his rights.
9. Movant's final ground for his claim to ineffective assistance of counsel is that counsel failed to provide evidence of a mitigating factor of a medical or mental condition at sentencing. Defendant claims that being on Ritalin since the age of five should have entitled him to a more lenient sentence. Defendant claims that counsel was ineffective for failing to tell the Court of these mitigating circumstances of this disorder, and that counsel should have used medical professionals to prove Defendant had a chemical imbalance that caused the incident. In an interview with a Public Defender interviewer, the Defendant did tell the interviewer that he had an anger control problem and may have a mental disorder. Defendant did not at any point volunteer information as to these issues with his attorney. A drug and alcohol evaluation by PACE focused on the defendant's anger and family issues as his key problems, even though it was indicated in the report that the Defendant was placed on Ritalin for ADHD for an unknown period of time. Counsel did agree with the report in regards to the true basis of the Defendant's behavior.
By entering a plea to the Court, Defendant waives any rights he has in his own defense. Counsel's decision not to raise this mitigating factor at sentencing is professionally reasonable since the Defendant had agreed to the sentence recommendation in a plea pursuant to Rule 11e(1)(c). Counsel did not fall below the objective standard of reasonableness in that the agreed sentence was designed to benefit the defendant who if convicted of the offenses charged would have been facing a life sentence plus over 100 years incarceration.
Robinson v. State, Del.Supr., 562 A.2d 1184, 1185 (1989).
10. Defendant's contentions are conclusory and contrary to the evidence on record and therefore are without merit. Defendant has failed to prove that counsel was ineffective under Strickland.
For the above stated reasons, Defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.