Opinion
Cr. ID No. 0406014523.
Submitted: April 10, 2007.
Decided: June 22, 2007.
ORDER
This 22nd day of June, 2007, upon consideration of defendant's pro se motion for postconviction relief, it appears that:
1. Defendant has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61.
2. On October 24, 2005, defendant Jeffery A. Nave (Nave) pled guilty to one count of Trafficking in Marijuana and one count of Forgery 1st in Superior Court.
3. On that same day, Nave was sentenced on the charge of Trafficking in Marijuana to fifteen years at Level V and on the charge of Forgery 1st to three years at Level V suspended for eighteen months at Level III. Nave agreed that he is a habitual offender pursuant to 11 Del. C. § 4214(a).
4. Nave did not file a direct appeal of his conviction.
5. On October 26, 2006, Nave attempted to file this motion for postconviction relief alleging ineffective assistance of counsel and prosecutorial misconduct. The motion was not prepared using the correct form. A Notice of Noncompliance was issued on October 31, 2006, and the motion for postconviction relief was returned to Nave for corrections.
6. Nave filed the corrected motion for postconviction relief on November 22, 2006.
7. The first claim in Nave's Rule 61 motion is ineffective assistance of counsel. To prevail on a postconviction relief claim based on ineffective assistance of counsel, defendant is required to meet both prongs of the test set forth in Strickland v. Washington. That is, a movant must show both "that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." In attempting to establish a claim of ineffective assistance of counsel, the defendant must allege concrete allegations of actual prejudice and substantiate them. Moreover, any "review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable."
Strickland v. Washington, 466 U.S. 668.
Id. at 694.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Flamer, 585 A.2d at 753.
8. Nave alleges that counsel refused to prepare for trial, did not convey a plea offer to six years of Level V time, refused to subpoena witnesses, refused to file pretrial motions, and repeatedly cut-off the defendant during the plea colloquy.
As indicated in the Affidavit of David Facciolo, Esquire, and corroborated by the State's response to the defendant's motion for postconviction relief, Nave was never offered a plea of six years incarceration.
9. It is particularly useful given Nave's allegations to understand the circumstances surrounding his eventual plea. Nave was arrested in this case on charges of Trafficking in Marijuana and related criminal offenses, as well as Forgery First Degree and related offenses on June 11, 2004. Prior to June 11, 2004, Nave was a target of an investigation into a stolen motor vehicle and property ring in New Castle County. As part of the investigation, Nave was introduced through a confidential informant to an undercover Delaware State trooper. The trooper met with Nave and discussed, among other things, purchasing counterfeit money and marijuana. Nave advised the undercover officer that if he were going to sell him one pound of marijuana, he might as well sell him ten pounds because he said if he got "caught selling again [he'd] go back to jail for life." This was a direct reference to the fact that Nave had already served a 10 year habitual criminal sentence pursuant to 11 Del. C. § 4214(b), and if convicted of the trafficking marijuana offense he believed he would receive a life sentence. On June 11, 2004, Nave sold 7 pounds of marijuana and counterfeit United States currency to the undercover officer. After his arrest, Nave made efforts to cooperate with police to obtain a favorable sentence recommendation. He did provide assistance, and, as a result, on May 31, 2005 at Nave's final case review on the 9:00 calendar he was offered a Level V sentence of seven years imprisonment followed by probation. The case review continued on into the afternoon, but eventually Nave rejected the plea and left the courthouse, being advised of his trial the next day. Nave did not appear for trial on June 1, 2005. The Honorable Joseph Slights ordered a capias with $100,000 cash bail. On June 29, 2005, the New Castle County Police located Nave hiding in the attic of a family member's residence. He was returned on the capias that day and incarcerated. On August 26, 2005 defendant filed a motion for reduction of bond, which was denied. On October 24, 2005, defendant entered the plea related to this case. As noted above he did not appeal, and this Rule 61 followed.
10. As indicated by the affidavit submitted by Mr. Facciolo, Nave repeatedly informed him of his desire to plea, both before his final case review on May 31, 2005, and after his arrest on June 11, 2005. Nave's insistence on a plea eliminated the need for final trial preparations and subpoenaing witnesses. According to Mr. Facciolo, the witnesses Nave wished to subpoena either were not favorable to his case or were actually being used against him by the State. For several months prior to the May 31, 2005 final case review, Mr. Facciolo had been engaging in plea negotiations with the State, attempting to get Nave the best deal possible. Nave was aware of the progress of the plea negotiations. Those negotiations resulted in the State offering Nave a Level V sentence of seven years followed by probation. This offer was presented to Nave by Mr. Facciolo on May 31, 2005, at his final case review. Nave rejected the offer and left the courthouse. Nave's failure to appear for trial resulted in the issuance of a capias and the withdrawal of the plea offer by the State. Mr. Facciolo continued to negotiate with the State after Nave was taken into custody. The State then offered a Level V sentence of fifteen years which Nave eventually agreed to accept. The record reflects that Nave's eventual plea to a harsher sentence was the result of his own decision not to appear for trial, not ineffective assistance of his counsel. Furthermore, Mr. Facciolo prepared a bail reduction motion after the defendant failed to appear for trial and was arrested on a capias. This directly contradicts Nave's claim that Mr. Facciolo refused to file any pretrial motions. According to Mr. Facciolo's affidavit he reviewed all discovery with Nave, discussed his habitual offender status and the risks of going to trial, and reviewed the potential witnesses and the downside of their testimony.
11. During the plea colloquy the Court inquired into Nave's intention to knowingly and voluntarily plead guilty, the State's sentencing recommendation, and the competency of Mr. Facciolo's representation. Nave indicated he was knowingly and voluntarily pleading guilty, that he was satisfied with Mr. Facciolo's representation, and that he understood the sentence he faced as a habitual offender. Mr. Facciolo's "interruptions" during the plea colloquy were attempts "to help focus his client on the important issues relating to the colloquy." There has been no attempt to withdraw the guilty plea.
12. Applying the Strickland standard here, this Court cannot now say that Nave's counsel was ineffective. Nave has failed to demonstrate that Mr. Facciolo's performance fell below an objective standard of reasonableness. Given this conclusion, the Court need not consider any prejudice to the defendant.
Strickland, 466 U.S. at 697 (stating that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one").
13. The second claim is identified by Nave as prosecutorial misconduct, but is actually a claim that he is serving an illegal sentence. Nave was sentenced as a habitual offender pursuant to 11 Del. C. § 4214(a) which provides in relevant part:
(a) Any person who has been 3 times convicted of a felony . . .and who shall thereafter be convicted of a subsequent felony of this State is declared to be an habitual criminal, and the court in which such 4th or subsequent conviction is had, in imposing sentence, may in its discretion, impose a sentence of up to life imprisonment upon the person so convicted. Notwithstanding any provision of this title to the contrary, any person sentenced pursuant to this subsection shall receive a minimum sentence which shall not be less than the statutory maximum penalty provided elsewhere in this title for the 4th or subsequent felony which forms the basis of the State's petition to have the person declared to be an habitual criminal except that this minimum provision shall apply only when the 4th or subsequent felony is a Title 11 violent felony , as defined in § 4201(c) of this title.(Emphasis added)
14. Nave argues that because Trafficking in Marijuana is a class B violent felony that his sentence has to be the statutory maximum penalty of 25 years. Nave is incorrect.
Nave was sentenced under 11 Del. C. § 4214(a) on the Trafficking in Marijuana charge to fifteen years at Level V and on the charge of Forgery 1st to three years at Level V suspended for eighteen months at Level III. He is now arguing that he should have been sentenced to twenty-five years on the trafficking charge and therefore his sentence is illegal.
15. Trafficking in Marijuana is a class B violent felony pursuant to Title 16 of the Delaware Code, specifically 16 Del. C. § 4753A(a)(1). Sentencing Nave as a habitual offender under § 4214(a) only requires that the statutory maximum sentence be imposed if the 4th or subsequent felony is a Tile 11 violent felony. It was not in this case. Therefore, the provision cited by Nave does not apply to his sentence, and his 15 year sentence is legal and conforms with the terms of the habitual offender statute.
16. On March 20, 2007, Nave filed a Motion for Evidentiary Hearing on Rule 61 Motion. There is sufficient evidence in the record to rule on Nave's Rule 61 motion without the need for an evidentiary hearing. Nave fails to raise any new issue in his motion for evidentiary hearing that is not addressed fully in his Rule 61 motion. Therefore Nave's motion for evidentiary hearing is DENIED.
WHEREFORE, defendant's motion for post-conviction relief is DENIED.
IT IS SO ORDERED.