Opinion
I.D. No. 9601000784.
Submitted: March 28, 2000.
Decided: June 23, 2000.
Upon Defendant's Pro Se Motion For Postconviction Relief. DENIED.
ORDER
This 23rd day of June, 2000, upon consideration of Defendant's pro se Motion for Postconviction Relief pursuant to Super. Ct. Crim. R. 61, it appears to this Court that:
1. Charles D. Newton, Jr., (Defendant) has filed this second pro se Motion for Postconviction Relief pursuant to Super. Ct. Crim. R. 61. Defendant alleges that his conviction is the result of 1) ineffective assistance of counsel and 2) that the Court improperly advised Defendant of the consequences of his plea and that he was sentenced illegally. For the reasons stated below, Defendant's motion is DENIED.
2. Defendant was indicted in January 1996 along with two co-defendant's on three counts of Burglary Second Degree, two counts of Burglary Third Degree, Five counts of Theft (felony), three counts of Criminal Mischief (misdemeanor), seven counts of Conspiracy Second Degree, three counts of Robbery First degree, three counts of Kidnapping First Degree and one count of Possession of a Deadly Weapon During the Commission of a Felony. Defendant pled guilty on June 11, 1996 to four counts of Theft (felony), to one count each of Robbery First Degree, Kidnapping First Degree, Robbery Second Degree, Burglary Second Degree, Burglary Third Degree and to two counts of Conspiracy Second Degree. Although Defendant had been sentenced based on that plea, this Court granted Defendant's first motion for post-conviction relief since counsel for the State and for Defendant were unaware at the time of the June 11, 1996 plea of guilty that Defendant had previously been convicted of a robbery charge which had the effect of enhancing the minimum mandatory sentence for the Robbery First Degree charge.
State v. Newton, Del. Super., ID No. 9601000784, Cooch, J. (May 29, 1998) (ORDER).
The parties then renegotiated a new plea bargain and Defendant entered a new plea of guilty on August 31, 1998. Defendant was sentenced on March 25, 1999 for 1) Kidnapping First Degree and was given 2 years at supervision level 5; 2) Robbery Second Degree and was given 1 year at supervision level 5; 3) Robbery First Degree and was given one year at supervision level 5; 4) Burglary Second Degree and was given one year at supervision level 5; 5) Burglary Third Degree and was given one year at supervision level 5, suspended for one year probation at supervision level 4, after serving six months at supervision level 4, that sentence was suspended for six months probation at supervision level 3; 6) Theft (felony) and was given one year probation at supervision level 5, which was suspended for one year at supervision level 2; 7) three counts of Theft with one year each (consecutive) at supervision level 5, suspended for one year probation at supervision level 2 for each count; and 8) two counts of Conspiracy Second Degree with one year probation at supervision level 5, suspended for one year at supervision level 2. It is from this sentence that Defendant has sought relief in his Motion for Postconviction Relief filed June 22, 1999.
3. In the motion, Defendant alleges that his conviction was the result of 1) ineffective assistance of counsel and 2) that the Court improperly advised Defendant of the consequences of his plea and that he was sentenced illegally. Defendant has attached his allegations in a lengthy memorandum of law. Grounds One and Two of Defendant's motion allege ineffective assistance of counsel. Specifically in Ground One, Defendant argues that he "was not informed that pursuant to [his plea] he could be held beyond his early release." In Ground Two Defendant contends that "the sentence imposed on Defendant was and is in violation of Defendant's liberty interest protected by the due process clause. . . ." Grounds Three and Four of Defendant's motion allege that the Court improperly advised him of the consequences of his plea and that he was sentenced illegally on one charge of Burglary Second Degree. Specifically, in Ground Three, Defendant states that he thought "his release would be pursuant to the earned good time" and that he would not be held past his short term release. Ground Four states that "the court could not impose a greater sentence on any of the 10 underlying sentences" and was "in violation of movants' rights." Defendant has also filed an amended motion adding an additional claim of ineffective assistance of counsel. In what is labeled Ground Six, Defendant alleges that he had made a timely request to file an appeal with the Delaware Supreme Court of his March 25, 1999 sentencing, but counsel nevertheless declined to do so.
Defendant's Memorandum of Law in support of his Motion for Postconviction Relief at 5.
Id. at 7.
Id. at 12.
Defendant's Amended Motion for Postconviction Relief at 4.
Id.
4. To succeed on a claim of ineffective assistance of counsel, Defendant must show both (a) that "counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result would be different." Since Defendant must prove both prongs in order to succeed on an ineffective assistance of counsel claim, failure to prove either prong will render the claim unsuccessful. Defendant must prove his allegations by a preponderance of the evidence. In addition, the Delaware Supreme Court has consistently held that when setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Robinson v. State, Del. Supr., 291 A.2d 279 (1972).
State v. Mason, Del. Super., Cr. A. No. IN93-02-0279-RI, Barron, J. (April 11, 1996) (Mem. Op.) at 7.
5. There is no evidence in the record which supports Defendant's allegations in Grounds One and Two relating to ineffective assistance of counsel. Whenever evaluating the conduct of counsel, this Court must indulge "a strong presumption that counsel's conduct was professionally reasonable." Further, the Court must make "every effort. . . . to eliminate the distorting effects of hindsight[.]" "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Any inadvertence of counsel does not amount to "cause" unless it rises to the level of ineffectiveness in violation of the Sixth Amendment.
Albiiry, 551 A.2d at 58.
Strickland, 466 U.S. At 689.
Id. at 690.
Murray v. Carrier, 477 U.S. 478, 492 (1986).
This Court finds that Defendant has failed to demonstrate how defense counsel's actions were professionally unreasonable or, in the alternative, but for defense counsel's unprofessional errors, how his sentence would have been any different. Defendant's claims of ineffective assistance of counsel are denied.
6. With respect to the allegations made by Defendant in Grounds Three and Four in regards to the illegality of the Burglary Second Degree sentence, this Court has already addressed that issue.
See this Court's February 12, 1999 letter to counsel stating that the sentencing was not illegal because "no separate incarcerative sentence was in fact imposed by the Court pursuant to Defendant's declaration as an habitual criminal on the Burglary Second Degree charge. In fact, I ordered, in declaring Defendant an habitual criminal, that Defendant be sentenced 'by separate sentencing order' in which separate sentencing order I intended to be the incarcerative sentencing document for Defendant on the Burglary Second Degree charge. However, in reviewing my worksheets, I see that I inadvertently imposed a one year sentence of imprisonment followed by a three-year probationary sentence on the Burglary Second Degree charge. A probationary sentence is of course not possible for any sentence imposed pursuant to 11 Del. C. § 4214(a)."
7. With respect to Ground Six of Defendant's motion, Supreme Court Rule 26(a)(ii) requires that "every trial attorney to docket an appeal whenever the client desires to appeal, whether or not the appeal appears meritorious" (emphasis added). This rule does not cover a situation such as here, where Defendant entered a guilty plea under Rule 11(e)(1)(C) and received the agreed upon sentence. His counsel did not serve as "trial" counsel. Defendant's counsel wrote to Defendant on April 6, 1999, advising that he would not be filing an appeal of the sentencing. He was under no duty to file an appeal.
8. For the reasons stated, Defendant's pro se Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.
The Court then decided that Defendant was to be resentence in open court.