Opinion
Def. ID# 0908010803 (R-1)
11-24-2015
RICHARD F. STOKES JUDGE Benjamin A. Schwartz, Esquire
Schwartz & Schwartz, P.A.
1140 South State Street
Dover, DE 19901 Casey L. Ewart, Esquire
Department of Justice
114 E. Market Street
Georgetown, DE 19947 Dear Counsel:
Pending before the Court is the motion for postconviction relief which defendant Joseph M. Parker ("defendant") filed in this matter pursuant to Superior Court Criminal Rule 61 ("Rule 61"). In connection with this motion, this Court conducted a hearing on June 8, 2015. This is my decision denying the postconviction motion.
The applicable version of Rule 61 is the one amended by order dated May 6, 2013.
In August, 2009, defendant was charged with the following sex offenses involving his minor daughter: rape in the first degree where the victim was less than 16 years of age by a person in a position of trust, authority or supervision in violation of 11 Del. C. § 773 (15 counts); continuous sexual abuse of a child in violation of 11 Del. C. § 778; unlawful sexual contact in the first degree where the victim was under the age of 16 and the defendant was in a position of trust, authority or supervision in violation of 11 Del. C. § 769 (5 counts); and endangering the welfare of a child in violation of 11 Del. C. § 1102. The information filed charged him with 14 counts of rape in the first degree; a count of rape in the second degree; 5 counts of unlawful sexual contact in the first degree; a count of continuous sexual abuse of a child; and a count of endangering the welfare of a child.
Defendant had confessed to the police to committing some of the crimes charged.
At some unspecified point during defendant's interaction with trial counsel, trial counsel "got in his face" about a letter defendant wrote the Court.
Transcript of June 8, 2015 Proceedings (Docket Entry 58) at 64-66 (hereinafter, "6/8/15 Trans. at ___").
Defendant's final case review was scheduled for May 19, 2010. Defendant needed more time to consider his options, so he returned to Court on May 20, 2010, to address his case. Defendant was willing to enter a plea to jail time because he thought he would be convicted. However, he wanted a lesser period of incarceration than his attorney was able to negotiate with the State of Delaware ("the State"). Defendant thought a better attorney could have gotten him a lesser period of incarceration. Consequently, he asked to speak to the prosecutor. She, in the presence of defense counsel, provided defendant with the facts: if he did not take the plea, he would be facing 400 years in jail if convicted.
Docket Entries 16 and 17; 6/8/15 Trans. at 87.
Id. at 80.
6/8/15 Trans. at 77; 81; 95.
Id. at 81; 95.
Id. at 63-64.
6/8/15 Trans. at 64. Defendant testified the prosecutor said 125 years but the actual amount was 400 years.
The plea offer which defendant accepted had a sentencing range of between 2 and 41 years. Defendant was engaged during the plea negotiations because he negotiated, as a part of his entering the plea, that he be allowed contact with his son.
Id. at 85-86.
Defendant testified that while filling out the paperwork for the plea, he zoned out or shut down. He provided the responses to his attorney as his attorney read the questions on the guilty plea form. All he remembered was seeing the 41 years of incarceration on the plea form. However, even though he had "shut down," he was aware he was pleading guilty to three offenses and he was aware he was facing 41 years of incarceration on those three convictions. Defendant resigned himself to this plea as being his fate. Although he felt he had to take the plea, he knew he had the option to go to trial.
Id. at 67-68; 77; 82.
Id. at 86-87.
Id. at 83.
Id. at 84.
Id. at 72-73.
Id. at 93-95.
Defendant's next emotion was anger at his attorney, which he felt during the plea colloquy. He was fully cognizant of what was occurring during the taking of the plea; he felt anger and resentment at the situation. He explained that although he tried to be elsewhere mentally, he was present mentally during the plea colloquy.
Id. at 68; 73; 87-88; 92.
Id. at 70-71.; 73; 88.
Id. at 93.
Defendant did not exhibit this anger openly during the plea colloquy on May 20, 2010, or the Court would have noted it. The plea colloquy was extensive and detailed.
Defendant testified that the transcript of the plea colloquy reflects exactly what occurred. 6/8/15 Trans. at 89-91.
Defendant affirmed he was satisfied with his attorney and had no complaints regarding his attorney; he had had plenty of time to go over his case with his attorney; he was aware of the rights he was giving up; no one was forcing him to enter the plea; he was aware of the sentence he was facing; his lawyer reviewed with him the evidence and penalties of law. The Court explained it intended to sentence him in accordance with the recommended sentences set out in the Plea Agreement and it went over the sentences with him. The following exchange occurred at this point:
Truth in Sentencing ("TIS") Form; Transcript of May 20, 2010 Proceedings (Docket Entry 18) at 4-5 ("5/20/10 Trans. at ___").
5/20/10 Trans. at 5.
Id. at 5-6.
Id. at 6; 10.
Id. at 6-8.
Id.
Id. at 10-12.
THE COURT: And you have given that ample thought?
THE DEFENDANT: Yes, Your Honor, I have.
THE COURT: You have come back. You have had extra time to think about this. Do you understand everything?
THE DEFENDANT: Yes, Your Honor.
Id. at 12.
Before defendant entered the pleas of guilty, the Court asked him if he had questions or anything that he would like to ask or say, and defendant responded in the negative.
Id. at 13.
Defendant pled guilty to rape in the third degree, a lesser included offense of count 1, rape in the first degree; unlawful sexual contact in the first degree, a lesser included offense of count 2, rape in the first degree; and unlawful sexual contact in the first degree, a lesser included offense of count 3, rape in the first degree. The Court concluded the admission of guilt to each charge was a knowing, intelligent and voluntary decision.
Id. at 13-16.
On the rape third conviction, defendant was sentenced to 25 years at Level 5, with credit for time served, suspended after 20 years at Level 5 and completion of the Family Problems program for one year at Level 4 Home Confinement. On each of the unlawful sexual contact in the first degree convictions, defendant was sentenced to 8 years at Level 5 suspended for 5 years of probation at Level 3.
Defendant did not appeal the May 20, 2010 convictions and sentences.
On October 24, 2013, defendant filed his motion for postconviction relief. He asserted the following claims of ineffective assistance of counsel:
Docket Entry 27.
Failure to investigate alleged victim's reptation [sic] for truthfulness, failure to subpoena certain witnesses and to interview those witnesses.
Standing silent at sentencing, failed to object to the pre-sentence report, and present mitigating evidence that would have probably resulted in a lesser sentence.
Defendant was coerced and physically intimidated by counsel to plea [sic] guilty.
Trial counsel responded to these contentions of ineffective assistance of counsel by affidavit.
Docket Entry 40.
As to the claim that trial counsel failed to investigate the victim's reputation for truthfulness, trial counsel explained that, on or about December 28, 2009, the State had notified him that the victim's previous report that she had been raped at school was found to be unsubstantiated. Trial counsel discussed this with defendant in advance of the final case review and trial.
Trial Counsel was unable to respond to the contentions that he failed to subpoena certain witnesses and interview those witnesses because of the vague and conclusory nature of those allegations.
With regard to the second claim, trial counsel explained:
Movant accepted and entered a negotiated plea with an agreed upon immediate sentencing request. There was no pre-sentence report ordered. Movant's assertion that counsel did not present "mitigating evidence that probably resulted in a lesser sentence" is vague and conclusory precluding a response.
Finally, trial counsel denied defendant's assertion that trial counsel coerced and physically intimidated defendant to plead guilty.
The Court appointed counsel to represent defendant in connection with the postconviction proceedings. Postconviction counsel filed an amended postconviction motion. In that motion, he argues the time bar of Rule 61 does not apply because of a Rule 61(i)(5) exception: defendant was deprived of due process because he was unable to voluntarily and intelligently consent to the waiver of his constitutional rights due to a psychological disorder. This psychological disorder, combined with pressure from the prosecutor and trial counsel, resulted in a coerced, involuntary plea of guilty.
Docket Entry 39.
The amended postconviction motion relates back to the date of the filing of the original motion. Thus, as noted in footnote 1, supra, the applicable version of Rule 61 is that amended by order dated May 6, 2013.
An important factual representation was made in this amended motion:
[T]he prosecutor threatened that if Defendant Parker chose not to take a plea agreement, then he would face a 125 year sentence. At that particular moment, Parker's mind went blank and he does not remember anything thereafter. Eventually, Parker's cognizance returned, but only after he was already sentenced. Defendant Parker does not remember plea negotiations with the prosecution or taking the plea colloquy. [Emphasis added.]
Id. at 5.
Defendant supports his argument in the amended postconviction motion with a report from Christopher Hampton, a Licensed Clinical Social Worker ("LCSW"), who examined defendant in connection with his claims of memory loss. Mr. Hampton completed a "Psychosocial Assessment and Evaluation" regarding the memory loss. Mr. Hampton concluded:
I do not feel that Joseph entered into dissociative state such that, at the time of the plea, he was completely involuntarily acting. That said, there is a reasonable likelihood when the prosecutor told Joseph that if he chose trial, he would be given a 125 year sentence, that the pressure exerted was sufficient to overcome his will, and that the plea was not truly voluntarily entered. At that time, it is my understanding that Joseph felt he did not have the assistance of an attorney, and that he was left to fend for himself against a prosecutor who told him she would "slam dunk" him. From his perspective, there was no choice but to disassociate from what must have been an extreme stressor and comply. Someone with Joseph's history and condition should not be left to fend for himself against a criminal prosecutor. It is likely that his will was overcome, and his plea was not voluntarily made.
Psychosocial Assessment and Evaluation, attached as Exhibit A to defendant's Amended Motion for Postconviction Relief, Docket Entry 39.
Mr. Hampton's report led to an examination of defendant by the State's expert, Stephen Mechanick, M.D. Dr. Mechanick also produced a report opining to a reasonable degree of medical and psychiatric certainty as follows:
*Defendant did not have attention deficit disorder, "sexual abuse of child disorder", depersonalization disorder, or posttraumatic stress disorder at the time he was interviewed by Detective Boone.
* Defendant was not experiencing a psychiatric disorder at the time of Detective Boone's interview that impaired his ability and/or caused him to lack the capacity to knowingly, intelligently, and voluntarily participate in Detective Boone's interview.
* Defendant was not experiencing a psychiatric disorder during his interactions with trial counsel that impaired his ability and/or caused him to lack the capacity to knowingly, intelligently and voluntarily participate in those discussions, written communications, and/or the preparation and conduct of his defense.
* On May 20, 2010, defendant was not experiencing a psychiatric disorder that impaired his ability and/or caused him to lack the capacity to knowingly, intelligently and voluntarily participate in his discussions with trial counsel and the prosecutor.
* Defendant's plea on May 20, 2010, was knowing, voluntary, and intelligent. He did not experience pressure from the prosecutor, trial counsel, or anyone else that was "sufficient to overcome his will" or that caused his plea to not be "truly voluntarily entered."
* Defendant was not in a "dissociative state" at the time that he entered his plea.
On June 8, 2015, this Court held a hearing on the issues of ineffective assistance of counsel and the voluntariness of the plea. Testifying at this hearing were trial counsel, defendant, Mr. Hampton, and Dr. Mechanick.
I have set forth defendant's testimony above. It clarifies the following facts. Defendant wanted to enter a plea but he was unhappy trial counsel was unable to negotiate a lesser period of incarceration; defendant asked to speak to the prosecutor so he could hear from her what she was offering; defendant actively negotiated terms of the plea, as evidenced by the condition he be allowed contact with his son; defendant was fully cognizant of what was happening during the plea colloquy and was not, contrary to the assertion in the written motion, "out of it" during that colloquy.
I summarize trial counsel's testimony next.
6/8/15 Trans. at 7-20.
Trial counsel had a professional relationship with defendant. It was not hostile. He does not recall verbally assaulting defendant or having a fight with defendant where a corrections officer had to intervene. He did not suspect that a psychological evaluation needed to be prepared. Early on, he had his psycho-forensic evaluator ("PFE") speak to defendant to see if there were any concerns for mental health issues and she reported back that she did not have any concerns. It was not a formal request. He does not remember why he made the request.
In general, he only asks the prosecutor to speak to his clients if the client requests it or acquiesces to it. As noted earlier, defendant testified that defendant asked to speak to the prosecutor. Trial counsel never left defendant alone with the prosecutor.
Trial counsel never physically or verbally threatened defendant into taking the plea.
Trial counsel reviewed the evidence with defendant. He discussed with defendant the minimum and maximum sentences defendant was facing. In this case, if defendant was convicted of all charges, he was looking at 400 years or spending the rest of his life in jail. The plea agreement provided for a minimum Level 5 time of 2 years with a maximum of 41 years. In trial counsel's opinion, the plea was in defendant's best interest.
Defendant did not ever seem zoned out to him. At no point did he see any behavior from defendant that caused him to think defendant did not understand what was going on and/or what he was doing.
I now review Mr. Hampton's testimony.
Mr. Hampton testified to a "reasonable degree of psychotherapeutic probability", which meant to him "[t]hat everything is probable and with the same level of confidence regarding making a diagnosis." He did not conduct a forensic evaluation. The "assessment" he performed was only an "interview" with defendant which took place over a couple of hours. His diagnosis was based solely on information provided by defendant. He did not attempt to confirm any information defendant gave him from independent sources; he did not review any records; he did not review the plea agreement.
Id. at 28.
Id. at 38. He described a forensic evaluation as "an evaluation that psychologists perform to determine the legal matters of a case." Id.
Id. at 29; 39.
Id. at 35-36.
Id. at 41; 44.
Mr. Hampton's testimony was as follows. He diagnosed defendant with post-traumatic stress disorder, childhood attention deficit disorder, childhood sexual abuse, and depersonalization disorder, "which is kind of weak." This depersonalization disorder is when defendant zones out or makes decisions not in his best interest when in stressful situations. There is a sense of numbness, detachment of himself in stressful situations. Mr. Hampton considers it a "weak" diagnosis because defendant does not meet the full criteria for making the diagnosis; he just has characteristics of it. Mr. Hampton believed that pressure on defendant was sufficient to overcome his freewill. Significantly, Mr. Hampton testified that this dissociative state ended after defendant signed his plea agreement; i.e., defendant was not in the dissociative state when he went through the plea colloquy with the judge. Mr. Hampton also conceded that it was possible defendant entered the plea because defendant thought it was in his best interest.
Id. at 32.
Id.
Id. at 33.
Id. at 37.
Id. at 50-52; 56; 57-58.
Id. at 53.
I summarize Dr. Mechanick's testimony last. Dr. Mechanick is a physician specializing in psychiatry. The Court accepts him as an expert and his testimony as expert testimony. He has testified many hundreds of times in court proceedings, both in and out of Delaware. He has evaluated defendants to determine whether they were competent to stand trial, competent to waive Miranda, or competent to enter a voluntary plea decision many times.
Id. at 98-99.
His opinions were rendered to "a reasonable degree of psychiatric certainty or medical certainty." A "reasonable degree of pyschotherapuetic certainty", the standard Mr. Hampton employed, is not a standard he ever has seen used for an opinion in a court of law.
Id. at 100-01.
Id. at 101.
Dr. Mechanick examined defendant. He reviewed the plea agreement, truth-in-sentencing form, immediate sentencing form, a waiver of indictment form, police records, all of the parties' pleadings in the Rule 61 motion, the transcript of the plea colloquy, trial counsel's affidavit, Mr. Hampton's report, and defendant's Department of Correction ("DOC") medical records from August 12, 2009 through December 31, 2009. He requested the medical records from DOC to "see if there was any evidence of mental disorders, such as those asserted by Mr. Hampton, in the prison medical records specifically during the period after he came into the prison." He explained:
Id. at 101-02.
Id. at 102.
[T]here was no evidence of any psychiatric problems. And, in fact, in terms of screening, when he was asked - when Mr. Parker was asked questions, he did not report having any psychiatric symptoms. He denied feeling depressed or extremely sad, that he did not want to hurt himself or anyone else. And ... he was not prescribed any psychiatric medications either throughout this period.He also listened to tapes of the police interviews of the defendant and victim and others. Finally, he administered to defendant the Minnesota Multiphasic Personality Inventory - 2, a well-established standardized instrument that is useful as a part of a psychiatric and/or psychological assessment.
Id. at 102-03.
Id. ay 103.
It is not standard professional conduct to solely rely on an interview with a defendant in doing a forensic evaluation. Dr. Mechanick explained why:
Id. at 104.
One, a forensic evaluation is intended to be reasonably comprehensive; that means, we look at available sources of information. Certainly, in criminal matters, we know that defendants have a variety of motives to present information that is inaccurate. And it is important to compare that information with what is contained in the records. Then assess - part of the assessment involves some determination of reliability of information, whether it is corroborated by other sources of information, and so on.
In addition, additional records may provide information that is not contained in the interview that may be relevant either for that interview that is performed or for any subsequent interview. It could open up additional issues also.
Id. at 104-05.
He opined the following regarding defendant's decision to accept the plea and defendant's saying the plea route was the lesser of two evils:
[H]e made essentially a knowing, voluntary, intelligent decision. He weighed the choices available to him. He viewed that there was a high likelihood of conviction. He was aware, at least as he understood it, there was over 125 years of potential sentence if convicted at trial. He understood that the plea deal was for a lesser amount of time. And then, in fact, he believed he was likely to be convicted or he would have to take a plea. From his perspective, neither one was good, each one was in a sense an, quote, evil one, unquote, for him personally and he chose the one that was better for him; i.e., the lesser of those two choices.
Id. at 108.
Dr. Mechanick explained that a "weak dissociative state or weak dissociative diagnosis" is not a term of art or science. In order to be diagnosed for a dissociative disorder, there has to be "more than just ordinary experiences of feelings as if things aren't real or feelings of I'm not there. It has to cause significant distress and/or interference with function. And it has to be persistent and recurrent."
Id. at 109.
Dr. Mechanick's interview of defendant, review of materials, and listening to police interviews did not evidence "that he has had anything in the range, clinically significant; i.e, a disorder in any way of depersonalization or derealization." Feeling numb or like an event really is not happening to the person is common at stressful times and it is not a psychiatric disorder unless it is persistent or recurrent and is interfering with function. No evidence existed that defendant suffered a disorder.
Id. at 110.
Id. at 111.
Dr. Mechanick opined that defendant was not suffering from any sort of psychiatric disorder during his interactions with his defense attorney. Feeling anger would be normal. Feeling he received a bad deal is not a psychiatric disorder. Defendant was not in some dissociative state or dissocative disorder, derealization disorder at the time of the plea. Defendant was not suffering from PTSD. Dr. Mechanick did not see any symptoms of ADHD nor anything which would interfere with his function throughout the whole day when he entered his plea. It is his opinion that defendant's decision to plead guilty and the plea colloquy were done knowingly, intelligently, and voluntarily.
Id. at 111-17.
The following exchange between postconviction counsel and Dr. Mechanick is pertinent to an argument defendant makes in his closing statements:
Q. You heard today from Mr. Parker that on the day of the plea he zoned out; is that correct?
A. He used that term, yes.
Q. He also discussed feelings of numbness and sort of self-redirecting his own thoughts in order to avoid the subject of the case and the subject of the plea; is that what you heard, too?
A. Among other things, yes.
Q. Is that testimony that you heard today consistent with the concept of having an experience of dissociation?
A. Well, yes, if by that you mean some sense of derealization, which again, is one of a number of possible experiences that one can have as part of dissociation, then yes.
Q. Are there any studies that you are aware of that attempt to draw a line to define where on the continuum of derealization one stops acting in a voluntary manner?
A. I'm not aware of any studies, no. In my opinion, that would actually be to the contrary because feelings of derealization don't prevent somebody from acting in a voluntary manner.
Q. If someone is having a dissociative state, if someone is not truly there, not mentally there, isn't that a state of not acting in a voluntary manner?
A. No. And I think part of the problem is we confuse lay terms with medical terms. Not really there isn't a meaningful medical term. Feeling as if I'm not there or feeling as if it can't be me here in court is a fairly common experience. That doesn't indicate a disorder. There is no specific bright line that determines between that and a disorder. But again, with the feelings of derealization and depersonalization, the capacity for rational thought persists. So someone doesn't lose the ability to voluntarily make decisions even if they feel zoned out or out of it or as if it can't be me in court, this can't be happening to me. Many people feel that.
Id. at 121-23.
At this stage, I make the following findings of fact with regard to the testimony presented at the hearing.
First, I reject Mr. Hampton's testimony as expert testimony. Mr. Hampton does not have knowledge, skill, experience, training or education to testify as to the voluntariness of defendant's plea in this matter. He did not testify to the appropriate standard. Additionally, his testimony was based merely upon an interview of the defendant and was not based upon sufficient facts or data nor was it the product of reliable principles and methods. In order to have been accepted as an expert, he would have had to establish he understood the standards for rendering an opinion on the voluntariness of a plea and that he followed those standards. Because that did not occur, I do not accept his testimony as expert testimony.
This ruling in no way addresses Mr. Hampton's qualifications as an expert testifying in Family Court. The Court understands that the testimony in Family Court is in an area completely different from the subject matter in this postconviction proceeding.
Dr. Mechanick explained what facts and data needed to be reviewed as well as the appropriate principles and methods which needed to be employed.
Delaware Rules of Evidence, Rule 702. Therein, it is provided:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if, (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Even if the Court accepted his testimony, it is of no benefit to defendant. Mr. Hampton verified that defendant was fully conscious of what he was doing during the plea colloquy.
The testimony of defendant, trial counsel and Dr. Mechanick establish that defendant was not coerced into entering the plea. Trial counsel did not force him to enter the plea. The prosecutor did not force him to enter the plea merely by informing him of the sentence he was facing. Defendant asked to speak to the prosecutor and trial counsel was present during the conversation.
Defendant was not suffering from any mental health issue which interfered with his ability to understand the plea and its consequences or to participate in the plea negotiations and/or the plea colloquy.
Defendant was unhappy about the plea and was stressed while filling out the plea paperwork. However, he willingly and consciously entered the plea to avoid the substantial jail time he would have received upon a conviction on all charges. He was fully engaged in the process as was evidenced by his negotiating the inclusion of contact with his son. His assertion he was "out of it" is belied by the objective evidence. He was not in any dissociative state which precluded him from understanding what he was doing.
Although he was angry about his situation, defendant and Mr. Hampton made clear that defendant was fully cognizant of what he was doing during the plea colloquy. This fact directly contradicts the assertion in the amended postconviction motion that defendant was not aware of what was happening during the plea colloquy.
Trial counsel did not overlook any mental health issue which would have rendered the plea involuntary because defendant did not suffer from any mental health issue during any of the pertinent times. Trial counsel's negotiation of the plea was beneficial to defendant, as he received a substantially lesser sentence than he otherwise would have received had he gone to trial.
In his closing arguments, defendant speculates that because trial counsel had the PFE examine defendant, trial counsel questioned defendant's mental health and that is indicative of probable taint linked to the knowing and voluntariness of the plea. That argument has no substance to it and is insufficient to meet defendant's burden here in this stage of the proceedings.
The Rule 61 motion was filed on October 24, 2013, almost three and a half years after the conviction became final. The motion is time barred unless defendant can show that an exception to the bar exists. Defendant argues that due process violations provide this exception in that defendant's psychological disorders and extreme pressure from the prosecutor and defense counsel render his plea unknowing and involuntary. Specifically, defendant argues:
The Court considers the amended motion to relate back to the filing of the original motion.
The LCSW determined that there was a reasonable likelihood that when the prosecutor told Defendant Parker that choosing to go to trial would result in a 125 year sentence, the pressure exerted was sufficient to overcome his will, and the plea was not truly voluntarily entered. The LCSW concluded that from the Defendant's perspective, there was no choice but to disassociate from what must
have been an extreme stressor and comply with the prosecutor's demands. Based on the Defendant's mental health history it was likely that his will was overcome and his plea was not voluntarily made.He further argues that Mr. Hampton's diagnosis established defendant
entered into a dissociative state to remove himself from a situation of extreme stress. Defendant Parker at the time of the plea was not competent to enter in the plea agreement while in a dissociative state because he would have been unable to adequately consult with defense counsel and would not have had been in a rational frame of mind in the course of court proceedings. While Parker's representations in the plea colloquy appear to have been made intelligently and voluntarily, his Psychosocial Assessment and Evaluation indicate the contrary from a psychological perspective. His plea was not voluntarily made based on the mental state at the time of the plea.
Amended Motion for Postconviction Relief (Docket Entry 39) at 6.
Id.
In his written closing argument, defendant argues that Dr. Mechanick "admitted that Parker's numbness and self-redirection were consistent with dissociation." Dr. Mechanick's full testimony on this issue is set forth at pages 15-16, supra. Dr. Mechanick's testimony does not in any way support this assertion.
Docket Entry 63.
Id. at 3.
There was no coercion by trial counsel or the prosecutor and there was no dissociative state which rendered defendant's plea involuntary. These findings of fact effectively eviscerate defendant's arguments. Since the premises of defendant's arguments fail, the entire motion fails. In conclusion, the amended motion for postconviction relief fails on its merits.
Although defendant did not pursue the first two of his original ineffective assistance of counsel claims after filing the amended postconviction motion, I address them anyway. He claims trial counsel was ineffective because 1) he failed to investigate the alleged victim's reputation for truthfulness, failed to subpoena certain witnesses and to interview those witnesses; and 2) stood silent at sentencing, failed to object to the pre-sentence report, and failed to present mitigating evidence that probably would have resulted in a lesser sentence.
I set forth the guiding legal principles before turning to defendant's claims. As explained in Purnell v. State:
100 A.3d 1021, 2014 WL 4536558, * 2 (Del. Sept. 12, 2014) (Table).
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the familiar two-part test of Strickland v. Washington. FN 15 "In the context of a guilty plea challenge, Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness; and (2) 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." FN 16
FN 15 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
FN 16 Somerville v. State, 703 A.2d 629, 631 (1997) (internal quotation marks omitted) (citing Albury v. State, 551 A.2d 53 (1988)).
Additionally,
There is a strong presumption that counsel's representation was professionally reasonable. Conclusory and unsupported claims of prejudice are insufficient to establish ineffective assistance; a defendant must make and substantiate concrete claims of actual prejudice. [Footnotes and citations omitted].
Furthermore,
In the absence of clear and convincing evidence to the contrary, ... [defendant] is bound by his answers on the Truth-in-Sentencing Guilty Plea Form and by his
sworn testimony prior to the acceptance of the guilty plea.
Sartin v. State, 103 A.3d 515, 2014 WL 5392047, *2 (Del. Oct. 21, 2014) (Table).
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
"[A] voluntary guilty plea constitutes a waiver of any alleged errors occurring before the entry of the plea." Furthermore, defendant's guilty plea constitutes a waiver of all constitutional trial rights and the right to challenge any alleged violations of his constitutional rights or to challenge any of the evidence that would have been presented against him at trial or, in other words, to raise any errors or defects preceding the entry of the plea.
Purnell v. State, supra, at *3 (footnotes and citations omitted).
Miller v. State, 840 A.2d 1229, 1232 (Del. 2003).
Defendant's assertions regarding the presentence allegation are ignored because, as a part of the plea, defendant was to be sentenced immediately. The other assertions defendant made are vague and conclusory, and consequently, they fail.
Younger v. State, 580 A.2d 552, 555 (Del. 1990). --------
For the foregoing reasons, the pending motion for postconviction relief is denied.
IT IS SO ORDERED.
Very truly yours,
/s/ Richard F. Stokes
Richard F. Stokes cc: Prothonotary's Office
John Daniello, Esquire