Opinion
Cr. ID No. 0806005121.
Submitted: February 18, 2010.
Decided: February 24, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Susan Dwyer Riley, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Raymond W. Penn, Howard R. Young Correctional Institute, Wilmington, Delaware, pro se.
This 24th day of February, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. On June 4, 2009, Defendant Raymond W. Penn pled guilty to one count of Robbery First Degree and one count of Possession of a Firearm During the Commission of a Felony, which arose from a home invasion he committed with three co-defendants in May of 2008. On the date of his plea, June 4, 2009, Defendant was sentenced to ten years at Level V for the Robbery First Degree, suspended after three years (the minimum mandatory) and for three years at Level V for the Possession of a Firearm During the Commission of a Felony (the minimum mandatory), followed by Level III probation.
2. Defendant Penn did not file a direct appeal to the Delaware Supreme Court.
3. The facts giving rise to this action reveal that Defendant Penn was indicted on a total of twelve counts: two counts of Robbery First Degree; five counts of Possession of a Firearm During the Commission of a Felony; two counts of Aggravated Menacing; one count of Burglary First Degree; one count of Assault Second Degree; and one count of Conspiracy Second Degree.
4. On May 27, 2008, Defendant Penn along with three co-defendants, James Couch, Matthew Daniels and Darrell Hicks, went to an apartment located in Village of Kent Apartment Complex, Newark, Delaware, pushed through the front door brandishing what appeared to be two handguns and one shotgun, entered the apartment unit with weapons drawn and robbed the occupants. One of the occupants was pistol whipped.
5. Following Defendant Penn's arrest, he provided a statement to the police. He admitted his involvement in the home invasion and confirmed that he was with the three co-defendants, Couch, Daniels and Hicks, at the time of the offenses. Defendant Penn also advised that he brought to the apartment unit two of the guns used in the robbery. He further advised that he held a weapon throughout the robbery. One of the victims also identified Defendant Penn as the robber who held the shotgun during the home invasion.
6. Prior to the trial date of January 13, 2009, a plea offer was made to all the co-defendants. Each of the Defendants was offered a plea of one count of Robbery in the First Degree. As a condition of the plea, the co-defendants would also have to testify against any co-defendant that did not accept the plea.
7. The other three co-defendants accepted the plea and were each sentenced to three years at Level V. Defendant Penn did not accept the plea. Defendant Penn appeared on January 13, 2009 for trial. The other three co-defendants were at the courthouse on the day of Defendant Penn's trial and were prepared to testify against him. On the day of trial, the prior plea offer was no longer available to Defendant Penn. Because the State had prepared for trial and had the co-defendants at the courthouse ready to testify against Defendant Penn, the State refused to offer Defendant Penn the same plea that he previously rejected. On the day of trial, the State offered Defendant Penn a plea to one count of Robbery in the First Degree and one count of Possession of a Firearm During the Commission of a Felony, which would result in an minimum mandatory sentence of six years.
Both Defendant Penn and his trial counsel, Mr. Kester Crosse, agree that a plea offer to one count of Robbery in the First Degree was discussed and rejected by Defendant Penn. Defendant Penn contends that he did not realize that he would have received only a three year sentence, and that if he knew his sentence would be for three years he would have accepted the plea. Although the minimum mandatory sentence for one count of Robbery in the First Degree is three years, the court is not bound by any recommendation made regarding the appropriate sentence and could have imposed any sentence within the statutory guidelines. Neither Defendant Penn, nor any of his co-defendants, could have been guaranteed any specific sentence. They had the option of either accepting the plea to one count of Robbery in the First Degree or rejecting it. The co-defendants accepted the plea and took their chances on sentencing, Defendant Penn rejected the plea.
8. Defendant Penn, unhappy that the prior plea offer was not being re-offered to him on the day of trial, left the court house on his trial date and absconded. On May 8, 2009, Defendant Penn was apprehended and the capias returned. Defendant Penn explained that he wanted to see the birth of his first child so he failed to stay for the trial or plea. The new trial date was scheduled for June 9, 2009.
9. On Defendant Penn's new trial date, June 9, 2009, he accepted the State's plea offer and pled guilty to one count of Robbery First Degree and one count of Possession of a Firearm During the Commission of a Felony, and was sentenced to six years at Level V.
10. On July 30, 2009, Defendant Penn filed a Motion for Reduction or Modification of Sentence. In that motion, Defendant contended that: 1) he was factually innocent of the firearm charge, 2) that his counsel was ineffective and disinterested in the handling of the case, and 3) that his sentence was disproportionately harsh as compared to his co-defendants.
11. On August 18, 2009, the Superior Court denied the motion. Defendant Penn did not appeal the denial of his motion to modify his sentence.
12. On September 22, 2009, Defendant filed this motion for postconviction relief. Defendant raises three grounds as the basis for the subject motion. Defendant raises the following: (1) that he was factually innocent of the firearm charge; (2) that his counsel was ineffective and disinterested in the handling of the case; and (3) that the Public Defender's office had a conflict of interest.
13. As to Defendant Penn's first count, that he was factually innocent of the firearm charge, this count is procedurally barred, pursuant to Superior Court Criminal Rule 61(i)(4), since this claim has already been formally adjudicated. Defendant raised this claim in his motion for reduction or modification of sentence, it was already considered and rejected by the Superior Court.
14. Even if Defendant Penn's first count was not procedurally barred, Defendant Penn waived his right to assert this claim when he entered his guilty plea. Defendant's voluntary guilty plea waived his right to challenge any alleged errors or defects occurring prior to the entry of his plea. Defendant had the opportunity to go to trial and litigate the claims brought against him with, of course, the burden on the State to establish each and every element of each and every claim. Defendant knew he was waiving these issues when he pled guilty. Defendant signed a Truth-In Sentencing Guilty Plea Form in which he acknowledged that by pleading guilty he would not have a trial and therefore waived his constitutional rights to confront witnesses, present evidence, testify and appeal any decisions. He also acknowledged that by pleading guilty he was waiving his constitutional right to be presumed innocent until the State can prove each and every part of each and every charge against him beyond a reasonable doubt.
Mojica v. State, 2009 WL 2426675 (Del. 2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
Truth-In Sentencing Guilty Plea Form dated June 4, 2009.
15. Moreover, before accepting Defendant's plea, the Court confirmed that Defendant understood he was waiving his constitutional right to be presumed innocent and to place the burden on the State to prove each and every part of each and every charge against him.
Plea Colloquy Transcript, at pgs. 8-9.
16. 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 before the Court, including Defendant Penn's own statements, establish that Defendant Penn knowingly, voluntarily and intelligently entered a guilty plea on June 4, 2009, and waived his right to have a trial, maintain his innocence, and have the State establish his guilt beyond a reasonable doubt. The first claim that Defendant seeks to raise in his postconviction motion was waived by his guilty plea.
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del. Super. 2008).
Plea Colloquy Transcript, at pgs. 8-10.
17. Turning to the second claim, ineffective and disinterested assistance of counsel, Defendant essentially contends that his counsel was ineffective and disinterested because his counsel encouraged him to accept the plea agreement and advised Defendant that he did not want to take his case to trial.
18. This second count, like the first count, is procedurally barred, pursuant to Superior Court Criminal Rule 61(i)(4), since this claim was also previously adjudicated in Defendant's motion for reduction or modification of sentence. To the extent that Defendant has restated or refined this claim, the Superior Court is not required to re-examine any claim that has received "substantive resolution" at any earlier time simply because the claim is now refined or restated.
Johnson v. State, 1992 WL 183069, *1 (Del.Supr.).
19. Even if Defendant Penn's second count was not procedurally barred, Defendant Penn's second count is without merit. The fact that Defendant Penn's counsel did not want to take this case to trial does not indicate that counsel was ineffective or disinterested in any respect. It appears that the evidence against Defendant Penn was overwhelming in light of his own admissions, the testimony of the victims, and the testimony of the three co-defendants all of whom were prepared to testify against him. If convicted at trial of all the charges that Defendant was facing, he could have been sentenced to well over 100 years of incarceration.
20. After Defendant Penn rejected the State's first plea offer, the State was only willing to offer Defendant Penn a plea to one count of Robbery in the First Degree and one count of Possession of a Firearm During the Commission of a Felony. The State refused to re-offer the first plea because it had already prepared for trial and was ready to proceed. Defense counsel negotiated the best offer that he could under the circumstances then existing. Indeed, during the plea colloquy, defense counsel noted that the State refused to move off of its plea offer in light of the fact that Defendant Penn had rejected the State's first plea offer, that Defendant Penn was the last co-defendant to take a plea, and that the State was prepared for trial. Defense counsel's representation cannot be deemed ineffective merely because the State remained unwilling to offer Defendant Penn the plea he previously rejected.
Plea Colloquy of June 4, 2009, pgs. 10-12.
21. During the plea colloquy, Defendant Penn raised the issue that he did not believe it was fair that he receive six years at Level V when his co-defendants each received three years. The court permitted him to withdraw his plea at that time and have his case tried before a jury. The court emphasized that Defendant was not to feel pressured in any way in taking the plea. If the plea was not being entered voluntarily, intelligently and willingly, he was entitled to his jury trial. Defendant represented that he understood his rights and that he still wanted to plead guilty.
Plea Colloquy of June 4, 2009, pgs. 10-12.
22. Defendant appears to have misunderstood his counsel's advices in not wanting to take his case to trial. Defendant had a plea offer in which the State would be recommending six years of incarceration. If Defendant went to trial and was convicted of all the charges, he would be facing well over 100 years of incarceration. The evidence against him was overwhelming. Defense counsel believed that it was in the best interests of Defendant to accept the plea agreement. Defense counsel's advices to take the plea, and not to go to trial, does not appear to be deficient in any regard.
23. To prevail on an ineffective assistance of counsel claim, the defendant must show that his counsel's efforts "fell below an objective standard of reasonableness" and that, but for his counsel's alleged errors, there was a reasonable probability that the outcome would have been different. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
24. Here, Defendant's ineffective assistance claims are undermined by the record and fail to satisfy Strickland. Defendant fails to state a legitimate ground for relief against his counsel. The record in this case reflects that Defendant Penn 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. Indeed, Defendant in his signed Truth-In Sentencing Guilty Plea Form expressly represented that nobody, not his attorney, the State, nor anyone else, threatened or forced him to enter his guilty plea. He further represented that his plea was entered into freely, knowingly and voluntarily.
Truth-In Sentencing Guilty Plea Form dated June 4, 2009.
25. Defense counsel's representation of Defendant was reasonable and Defendant cannot establish that he would have received a lesser sentence if he proceeded to trial. Defendant has failed to satisfy either prong of the Strickland test, and therefore, his claims of ineffective assistance of counsel fail.
26. Moreover, a defendant cannot challenge his sentence simply because it appears disproportionate to the sentences of co-defendants. A sentence within the statutory limits prescribed by the legislature is generally not reviewable. In this case, Defendant Penn's six year sentence for his plea to one count of Robbery First Degree and one count of Possession of a Firearm During the Commission of a Felony is within the statutory maximum penalty of 50 years for these charges.
Haskins v. State, 1991 WL 165563 (Del.Supr.).
27. Turning to the third and final claim, the Public Defender Office's alleged conflict of interest, Defendant contends in conclusory fashion that the public defender's office had a conflict of interest that resulted in him receiving more Level V time than his co-defendants. Defendant's contention is devoid of any specificity. Defendant does not provide any support for this claim, failing to even identify which co-defendant was also purportedly represented by the Public Defender's Office in this case. The Court will not address Rule 61 claims that are conclusory and unsubstantiated.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super.); State v. Donohue, 2008 WL 5206779 (Del.Super.)
28. It also appears that Defendant Penn's claim is factually incorrect. It appears that each of Defendant's three co-defendants were represented by conflict counsel, appointed by the Court but not employed by the Office of the Public Defender. Consequently, Defendant's final claim is factually incorrect and without merit.
29. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider the otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.