Opinion
I.D.# 9607002498
Submitted: October 14, 2003
Decided: November 20, 2003
ORDER
This 20th day of November, 2003, upon consideration of a pro se Motion for Postconviction Relief filed by Barry Phoenix ("Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief (the "Motion") pursuant to Superior Court Criminal Rule 61. It is apparently the first such motion that Defendant has filed. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED IN PART and DENIED IN PART.
2. The Motion follows Defendant's sentencing to one-year of incarceration at Level V for a violation of probation ("VOP") in connection with an earlier sentence for Burglary in the Third Degree (title 11, section 824 of the Delaware Code). That VOP-based sentencing was affirmed on direct appeal; the facts as found by the Supreme Court on appeal are as follows:
Phoenix v. State, No. 127, 2003, 2003 WL 21991655 (Del. Aug. 19, 2003).
In [March] 2003 . . . Phoenix was found by the Superior Court to have committed a . . . VOP . . . in connection with his April 1997 sentence for third degree burglary.
[On appeal] Phoenix [has filed] a brief that raises two issues for this Court's consideration. The State . . . has moved to affirm the Superior Court's judgment.
[Phoenix] claims that: a) the Superior Court abused its discretion and committed legal error by finding that he had committed a VOP in connection with his burglary conviction; and b) his counsel provided ineffective assistance at the VOP hearing.
The transcript of the VOP hearing[] reflects that the Superior Court's finding of a VOP was based upon Phoenix's violation of a no-contact order involving two minor children. The no-contact order originally was included as a condition of Phoenix' probation on a separate sentence for unlawful sexual contact in the third degree. In November 2000, the Superior Court also included the no-contact provision as a condition of probation on Phoenix' burglary sentence. At the time of the . . . VOP hearing, the no-contact provision remained as a condition of probation on Phoenix' burglary sentence.
That same transcript has been provided to this Court in connection with Defendant's current Motion.
Phoenix, 2003 WL 21991655 at *1 (footnotes omitted).
Despite Defendant's argument to the contrary on appeal, and even though this Court had carried over to Defendant's conviction for the burglary charge the no-contact order originally instated at the time of Defendant's sexual offense conviction, the Supreme Court affirmed, as follows:
The Superior Court has the authority to impose a wide range of specific conditions of probation. Moreover, the Superior Court has the authority to terminate a probationary sentence "at any time." We find no error or abuse of discretion on the part of the Superior Court in imposing the no-contact provision as a condition of Phoenix' probationary sentence for burglary. Nor do we find any error abuse of discretion on the part of the Superior Court in finding that Phoenix had committed a VOP in connection with his burglary sentence by violating the no-contact order.
Id. (footnotes and citations omitted).
As reflected in the Supreme Court's order, Defendant's probation officer had "presented evidence at the [VOP] hearing that Phoenix had lived in the same house with the children who were the subject of the no-contact order." The Supreme Court then affirmed, but did not reach Defendant's claim of ineffective assistance of counsel because he did not raise that claim at the VOP proceeding, and because the Supreme Court will not hear claims of ineffective assistance of counsel raised for the first time on direct appeal.
Id.n. 7.
Id. at 2 (citation omitted). The Supreme Court did however note that the VOP from which defendant appealed was the ninth to occur in connection with Defendant's sentencing after conviction of Burglary in the Third Degree. Phoenix, 2003 WL 21991655 at *1 n.l
3. Defendant now raises four arguments in his Motion: 1) that a double jeopardy violation has occurred because the no-contact order that Defendant violated was carried over to Defendant's burglary conviction from an earlier sexual offense conviction and "[b]oth charges are entirely separate and should not involve [the] same no-contact order"; 2) that prior counsel was ineffective because she "was discovered on the day of . . . [the VOP] hearing and [D]efendant was denied the right to subpoena witnesses and obtain written statements which could have changed the [j]udge's . . . ruling . . ."; 3) that Defendant "was prejudiced . . . by being assigned to the same probation officer who violated [D]efendant"; and 4) that Defendant was prejudiced because he is proceeding pro se and is "unknowledgeable in post-conviction motions and legal responsibilities required by law."
Def's Mot. at 3.
Id.
Id.
Id.
Defendant's VOP counsel submitted an affidavit in response to Defendant's Motion. In her affidavit, counsel states that Defendant "did not provide [her] with a list of witnesses nor did he indicate that he would like counsel to seek a continuance . . . for the purpose of issuing subpoenas for any witness(es)[,]" Furthermore, counsel indicates in her affidavit that "[i]f [Defendant] had advised counsel regarding any potential defense witnesses, counsel would have advised the Court . . . and sought a rescheduling for the purpose of securing that witness' appearance in Court[.]" Finally, counsel states in her affidavit that "[a] review of the official transcript of this matter shows that [Defendant] did not, at any time, indicate to the Court that he desired a continuance. . . ."
Kathryn van Amerongen Aff. of 7/10/03 ¶ 4.
Id ¶ 6.
Id ¶ 7.
In invited response, the State contends that "Defendant's contention that counsel refused to assist him at the [VOP] hearing is clearly without merit and not supported by the record." Specifically, the State contends, in pertinent part:
State's Resp. to Def's Mot. ¶ 11.
in light of [D]efendant's own failure to provide counsel with witness information or to ask her to obtain documents and/or witness statements for his defense, his claims that defense counsel was ineffective because she failed to subpoena witnesses and/or obtain exculpatory documents and witness statements are, to say the least, disingenuous, as well as bring without merit. Furthermore, if the [D]efendant felt witnesses need to be subpoenaed and documents need to be obtained why didn't he simply say so when he addressed the [C]ourt. Based on his criminal history and the fact that this was his ninth violation of probation hearing in this case alone, it is certainly reasonable to conclude that he knew how the process worked. It is also reasonable to conclude that he knew he could have asked for more time to prepare a defense if he needed it, even if his lawyer did not.
Id ¶ 12.
4. Superior Court Criminal Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for post-conviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal. . . ." Applying that precept here, the Court finds that Defendant's first asserted ground for post-conviction relief (that a double jeopardy violation has occurred because the no-contact order that Defendant violated was carried over by this Court from an earlier conviction) does not entitle Defendant to any relief, as the Supreme Court earlier rej ected essentially this same argument on direct appeal. Accordingly, the Court SUMMARILY DIMSISSES Defendant's first asserted claim for post-conviction relief.
Additionally, because this claim was adjudicated on direct appeal, it is subject to the former adjudication bar of Superior Court Criminal Rule 61(i)(4). See SUPER. CT. CRIM. R. 61(i)(4) (providing that any ground for relief that was formerly adjudicated is generally barred from reconsideration "whether in the proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus proceeding").
Furthermore, this Court will not address claims for post-conviction relief that are conclusory and unsubstantiated. Applying those precepts here, the Court concludes that Defendant is not entitled to the relief he requests relative to his claims that he "was prejudiced . . . by being assigned to the same probation officer who violated [D]efendant" and that he was prejudiced because he is proceeding pro se. These claims are conclusory and unsubstantiated, and are therefore also SUMMARILY DISMISSED.
See, e.g., Younger v. State, 580 A.2d 552, 555 (Del. 1990) (stating that "conclusory . . . allegations of ineffectiveness of counsel" do not "lead . . . to the conclusion that the claim should be considered . . .").
Def.'s Mot. at 3.
Id. Additionally, "there is no constitutional right to counsel during post-conviction proceedings." Floyd v. State, No. 194, 1992, 1992 WL 183086, at *1 (Del. July 13, 1992) (citing Ross v. Moffitt, 417 U.S. 600 (1974)).
5. To succeed on a claim of ineffective assistance of counsels Defendant must show 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 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."
Albury v. State, 551 A.2d 53, 58 (Del. 1988) (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)).
Younger, 580 A.2d at 555-56.
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Applying those standards here, this Court cannot now say that Defendant's VOP counsel was ineffective. As indicated by the affidavit submitted by Defendant's VOP counsel, Defendant did not provide a list of requested witnesses or request a continuance so as to secure the attendance of any witnesses, and, had he done so, counsel has represented that she "would have [so] advised the Court . . . and sought a rescheduling for the purpose of securing that witness' appearance in Court[.]" Additionally, a review of the transcript does not indicate that Defendant himself requested such relief when directly addressing the Court. As the Strickland Court itself recognized,
Kathryn van Amerongen Aff. of 7/10/03 ¶ 6.
A copy of the transcript of the March 31, 2003 VOP hearing is attached as Exhibit "A" to counsel's affidavit.
The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.
Strickland, 466 U.S. at 691.
Therefore, based on the above, Defendant has failed to demonstrate that his VOP counsel's performance fell below an objective standard of reasonableness. Given this conclusion, the Court need not consider any prejudice that accrued to Defendant, and therefore his contention of ineffective assistance of counsel is DENIED.
Id. 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").
6. For all of the above reasons, Defendant's Motion is
SUMMARILY DISMISSED IN PART and DENIED IN PART.
IT IS SO ORDERED.