Opinion
Cr. ID. No. 1004009018.
Submitted: July 27, 2011.
Decided: September 1, 2011.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Matthew B. Frawley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
William Parker, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 1st day of September, 2011, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On October 26, 2010, Defendant William Parker pled guilty to one count of Robbery First Degree, one count of Possession of a Firearm during the Commission of a Felony ("PFDCF"), and one count of Attempted Carjacking First Degree. The remaining six counts of the indictment were dismissed as part of the plea agreement. Also as part of the plea agreement, the State agreed to recommend not more than the 8 year minimum mandatory term of incarceration at Level V (3 years minimum mandatory for Robbery First Degree, 3 years minimum mandatory for PFDCF, 2 years minimum mandatory for attempted carjacking).
2. On January 7, 2011, Defendant was sentenced to 50 years at Level V suspended after 8 years, the minimum mandatory term of incarceration, followed by deceasing levels of probation.
3. Defendant Parker did not file a direct appeal to the Delaware Supreme Court.
4. The facts giving rise to this action reveal that on April 12, 2010, Defendant Parker, together with other unknown co-conspirators attempted to rob Mr. Frank J. Laurento and his son, Frank S. Laurento. Defendant Parker was 19 years old at the time of the crime. The situation was set up by a phone call asking the victims to meet Defendant Parker at a certain spot in New Castle County, where two gold bars were to be sold to the Laurentos. The Laurentos have a business buying antiques and gold. The victims drove to the agreed upon address to buy the gold bars. Once at the address, Defendant Parker attempted to rob the victims by pulling a gun on them. Defendant Parker took a loaded gun, stuck it in the victim's (Frank S. Laurento's) face, and robbed him of his belongings and intended on taking their vehicle. As Defendant Parker was getting into the driver's seat of the truck, the victim (Frank J. Laurento) grabbed Defendant Parker pulling him out of the truck. Consequently, instead of the robbery and carjacking going forward, the Laurentos were able to subdue Defendant Parker and take his weapon. They proceeded to beat Defendant Parker and hold him until the police came to make the arrest.
January 7, 2011 Sentencing Transcript, pgs. 5-10.
5. Defendant Parker would not disclose, and the State has not been able to determine, the identity of the other co-conspirators involved in setting up the incident.
6. Defendant was indicted on nine charges: one count of Robbery First Degree, three counts of Possession of a Firearm during the Commission of a Felony; one count of Attempted Robbery First Degree; one count of attempted carjacking first degree; two counts of assault third degree; and one count of possession of a firearm by a person prohibited.
7. If convicted of all the offenses at trial, Defendant, who was caught red-handed at the scene of the crime, was facing a sentence of at least seventeen years, minimum mandatory time, and a maximum penalty of over 150 years of incarceration.
8. On March 25, 2011, Defendant filed this motion for postconviction relief. Defendant alleges that his counsel was ineffective and raises five grounds as the basis for the subject motion, each related to the ineffectiveness of his counsel. Before making a recommendation, the Commissioner enlarged the record by directing Defendant's trial counsel to submit an Affidavit addressing Defendant's claims. Thereafter the State filed a response to the motion and Defendant filed a reply thereto.
Super.Ct.Crim.R. 61(g)(1) and (2).
9. The subject motion should be denied for the following reasons. First, in the subject motion, Defendant does not seek to vacate or withdraw his guilty plea. The relief that Defendant seeks is a sentence reduction/modification. However, the relief that Defendant seeks is not possible in this case. Defendant has already received the minimum mandatory sentence for the crimes for which he pled guilty. He received an 8 year sentence at Level V, and the minimum mandatory sentence is 8 years at Level V. Defendant's sentence cannot be reduced or modified in light of the fact that he already received the minimum mandatory sentence required to be imposed. Consequently, Defendant's motion should be denied because the court cannot grant the relief he requested.
10. The second basis for the denial of the motion is that in order to prevail on a Rule 61 motion for postconviction relief in the context of a guilty plea challenge, it is not sufficient for the Defendant to simply claim that his counsel was deficient. The Defendant must also establish that counsel's actions were so prejudicial that there was a reasonable probability that, but for his counsel's deficiencies, Defendant would not have pleaded guilty and would have insisted on going to trial. Defendant Parker has made no such claim.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Somerville v. State, 703 A.2d 629, 631 (Del. 1997); Premo v Moore, 131 S.Ct. 733, 739-744 (2011).
11. Defendant Parker does not contend that but for his counsel's deficiencies, he would not have pleaded guilty and would have instead insisted on going to trial. Indeed, Defendant Parker does not seek to vacate or withdraw his guilty plea. He seeks only a lesser sentence for the plea he entered into. For this reason, Defendant's motion for postconviction must be denied. Even if Defendant can establish that his counsel was ineffective, his motion must fail because he cannot meet the second prong of the Strickland test, that but for his counsel's ineffectiveness he would not have pled guilty and would have insisted on going to trial.
12. This case was not a who-done-it. This was an attempted robbery and carjacking where the victims held onto the perpetrator and kept the gun. Defendant was caught redheaded at the scene of the crime. The case against Defendant was overwhelmingly strong. If he went to trial, in all likelihood he would have been convicted on all charges, and was facing a sentence of at least seventeen years, minimum mandatory time, and a maximum penalty of over 150 years of incarceration.
13. Defendant received a significant benefit by pleading guilty and his guilty plea represented a rational choice given the pending charges, the strength of the case against him, and the possible sentences he was facing. The reality of the situation is that Defendant could not risk going to trial and he does not contend otherwise.
14. For the sake of completeness, it is noted that the Truth-in-Sentencing Form and plea colloquy reveal that Defendant knowingly, voluntarily and intelligently entered a guilty plea to the charges on which he was sentenced. In this case, Defendant represented that he had reviewed the plea agreement and truth-in sentencing guilty plea form with his counsel. Defendant represented that he understood everything that his counsel explained to him about the benefits and consequences of his decision to enter his guilty plea. Defendant represented that he entered his guilty pleas on his own free will and because he personally believed it was in his best interests to do so. Defendant represented that he was satisfied with his counsel's representation and that his counsel had fully advised him of his rights. Defendant also acknowledged his guilt. Only after finding that Defendant's plea was entered into knowingly, intelligently and voluntarily did the court accept the plea.
October 26, 2010 Plea Transcript, at pgs. 4-5, 9-11.
October 26, 2010 Plea Transcript, at pgs. 8-9.
Id. at 14-15.
Truth-In Sentencing Guilty Plea Form dated October 26, 2010
October 26, 2010 Plea Transcript,, at pgs. 15-18.
Id. at 17-18.
15. A defendant is bound by his answers on the guilty plea form and by his testimony at the plea colloquy in the absence of clear and convincing evidence to the contrary. The record in this case reflects that Defendant Parker understood the nature of the plea and its consequences, was satisfied with the representation provided by counsel, and knowingly, intelligently and voluntarily entered the plea. Consequently, Defendant has not met his burden of showing that he should not be bound by his prior representations under oath.
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del. Super. 2008).
16. Since Defendant's plea was entered into voluntarily, intelligently and knowingly, Defendant waived his right to challenge any alleged errors or defects occurring prior to the entry of his plea, even those of constitutional proportions. Because it is clear that Defendant Parker's guilty plea was voluntary, he is foreclosed from bringing any claims of error occurring prior to the entry of the plea.
Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Modjica v. State, 2009 WL 2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
17. Defendant's claims of ineffectiveness of counsel involve allegations of deficiencies which occurred prior to the entry of the plea. These claims were waived when Defendant knowingly, freely and intelligently entered his plea. Defendant is now foreclosed from bringing these claims of error.
18. Defendant raises five claims of ineffectiveness of counsel: 1) that counsel missed several important court events; 2) that counsel failed to perform any case work or product research; 3) that counsel missed the plea bargaining deadline; 4) that counsel did not do enough on his behalf at sentencing; and 5) that overall his counsel did not put in sufficient time to represent him. Defense counsel denies each of these allegations.
Defense Counsel's Affidavit in Response to Rule 61 Motion.
19. In his Affidavit, defense counsel emphasized that as to Defendant's first claim, either he or another representative from the Public Defender's Office was present at every court event. As to Defendant's second claim, defense counsel elaborated on the case work and consultations he had with Defendant. As to Defendant's fourth claim, that counsel did not do enough at sentencing, since Defendant received the minimum mandatory sentence for the charges, there was nothing defense counsel did or did not do that could have achieved a better result. As to Defendant's fifth claim, that overall defense counsel was deficient, defense counsel disputes this allegation and sets forth his reasons for believing the representation was reasonable.
Id.
20. As to Defendant's third claim, that counsel missed the plea bargaining deadline, Defendant and defense counsel are at odds as to the events that occurred which led up to the ultimate acceptance of the plea deal. Both Defendant and defense counsel agree that prior to the trial date the State offered a plea whereby Defendant would plead guilty to one count of robbery first degree and one count of PFDCF, and the State would recommend not more than 6 years at Level V. Both Defendant and defense counsel agree that this plea offer was not accepted. Defendant contends that the plea offer was not accepted because counsel was going to try to negotiate a better deal but dropped the ball in doing so.
21. In any event, on the day of trial, the best plea offer the State was willing to offer was the plea agreement that Defendant accepted. Defendant pled guilty to one count of robbery first degree, one count of PFDCF, and one count of attempted carjacking. The State agreed to recommend not more than the 8 year minimum mandatory term of incarceration at Level V.
22. Defense counsel explained that the State increased the plea offer to 8 years because it was the day of trial and because Defendant refused to name his co-conspirators. The State would have considered a more lenient plea offer if Defendant disclosed the names of his co-conspirators as it was believed that Defendant was manipulated by other persons. Defendant refused to do so. Defense counsel contends that the harsher plea on the day of trial was not due in any part to neglect of counsel. The decision to reject the plea was made by Defendant and his refusal to name his co-defendants.
Defense Counsel's Affidavit in Response to Rule 61 Motion, at pgs. 2-3.
Defense Counsel's Affidavit in Response to Rule 61 Motion, at pg. 4.
23. Likewise, at Defendant's sentencing, the State explained its rationale for its plea offer. The State explained that Defendant, who was only 19 years old, already had a prior robbery second conviction on his record from 2007. The State further explained: "And part of the rationale behind the State's decision to offer the plea that it did was the defendant's refusal to participate in identifying any individual who was involved in this. And it appears as though he wants to be the one to do all the time for everyone else who was involved in this case. And that's what went into the State's decision when it offered the plea that it did."
January 7, 2011 Sentencing Transcript, at pgs.8.
January 7, 2011 Sentencing Transcript, at pgs. 9-10.
24. As previously stated, Defendant's motion for postconviction relief should be denied because the relief that he seeks, a sentence reduction/modification, cannot be granted in light of the fact that he received the minimum mandatory sentence for the charges for which he pled guilty. In addition, the motion should be denied, because Defendant has not alleged, and has not established, that even if his counsel was deficient, but for his counsel's deficiencies, he would not have pled guilty and would have insisted on going to trial. Since Defendant cannot satisfy this second prong of the Strickland test, his motion should be denied.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.