Opinion
Def. ID No. 0205020494.
December 17, 2003.
James L. Plaches.
Ruth M. Smythe, Esquire, Office of the Public Defender.
Paula T. Ryan, Esquire, Department of Justice.
Memorandum Opinion — Motion for Postconviction Relief
Dear Mr. Plaches and Counsel:
This is my decision on defendant James L. Plaches' motion for postconviction relief. Plaches was charged by indictment on August 12, 2002 with Possession of a Deadly Weapon During the Commission of a Felony, Attempted Kidnapping in the First Degree, Assault in the Third Degree, Assault in the Second Degree, Burglary in the Second Degree and Theft. Plaches entered a Nolo Contendre plea on April 23, 2003 before me to the charges of Assault in the Second Degree and Burglary in the Second Degree.
Defendant James L. Plaches is herein after referred to as "Plaches."
I sentenced Plaches to 12 years at supervision level V, suspended after serving six years at supervision level V for six years of declining levels of probation. Plaches took no appeal to the Supreme Court. Plaches filed his motion for postconviction relief on August 11, 2003. This is Plaches' first motion for postconviction relief and it was filed in a timely manner. Therefore, there are no procedural bars to Plaches' motion for postconviction relief. Younger v. State, 580 A.2d 552, 554 (Del. 1990). Plaches also filed motions seeking an evidentiary hearing and the appointment of counsel.
Plaches was represented by Ruth M. Smythe, Esquire ("Smythe"). He alleges that Smythe's representation of him was deficient in that she: (1) did not throughly investigate the charges against him; (2) failed to obtain discovery and discuss it with him before he pled nolo contendre; (3) knew that he was suffering from bipolar disease at the time he allegedly committed the offenses, but did not request a competency hearing; and (4) knew that he had a substance abuse problem, a sixth grade education, was legally deaf, and on medication at the time of the plea negotiations and sentencing, but still allowed him to plead nolo contendre.
DISCUSSION
A. Standard of Review
The United States Supreme Court has established the proper inquiry to be made by courts when deciding a motion for postconviction relief. Strickland v. Washington, 466 U.S. 688 (1984). In order to prevail on a claim for ineffective assistance of counsel pursuant to Superior Court Criminal Rule 61, the defendant must show: "(1) counsel's representation fell below an objective standard of reasonableness; and (2) counsel's actions were so prejudicial that, but for counsel's errors, the defendant would not have pled guilty and would have insisted on going to trial." State v. Thompson, 2003 WL 21244679 (Del.Super.Ct.), citing Strickland v. Washington, 466 U.S. 688 (1984). Further, a defendant "must make and substantiate concrete allegations of actual prejudice or risk summary dismissal." State v. Coleman, 2003 WL 22092724 (Del.Super.Ct.). It is also necessary that the defendant "rebut a 'strong presumption' that trial counsel's representation fell within the 'wide range of reasonable professional assistance,' and this Court must eliminate from its consideration the 'distorting effects of hindsight when viewing that representation.'" Coleman, 2003 WL at *2, quoting Strickland, 466 U.S. at 689. There is no procedural bar to claims of ineffective assistance of counsel. Coleman, 2003 WL at *1, citing State v. Johnson, Del. Super. Ct., Cr. A. No. 97-10-0164(R1), Graves, J. (August 12, 1999) at 2; State v. Gattis, Del. Super. Ct., Cr. A. Nos. IN90-05-1017 to 1019, Barron, J. (December 28, 1995) at 7, aff'd, 637 A.2d 1174 (Del. 1997).
1. Investigation
Plaches alleges that Smythe did not make a zealous investigation of the charges against him and, therefore, his guilty plea was not an intelligent and knowing decision. However, it appears that Smythe investigated the case thoroughly. The victim, the victim's neighbors, Plaches' mother, the police in New York, and all other character witnesses provided by Plaches were interviewed. Smythe also reviewed all of the discovery provided by the State. It is clear, given this, that Smythe's efforts did not fall below an objective standard of reasonableness under the Strickland standard. Strickland v. Washington, 466 U.S. 688 (1984). Moreover, Plaches has not asserted any concrete allegations as to what other investigation Smythe should have done, but did not do, as well as how such other investigation would have made a difference. Consequently, this claim fails.
2. Discovery
Plaches alleges that he did not have knowledge of the evidence against him because he allegedly did not receive discovery until after he had entered his plea and was sentenced. The apparent basis of this allegation is the fact that Smythe sent copies of the discovery to Plaches after he had taken the plea and been sentenced. Smythe, in response to this allegation, stated that she sent the discovery to Plaches so that his file on this matter would be complete. Smythe also stated that she discussed the discovery with Plaches when she received it. In support of this, Smythe noted that Plaches' letter dated January 20, 2003 to her discusses the police reports. Smythe also points out that she reviewed other discovery, including photographs, with Plaches at the final case review on April 23, 2003. Given that Plaches' own letter reflects that he was aware of the discovery, I am satisfied that there is no basis for Plaches' allegations that Smythe did not fully discuss the discovery with him. Consequently, this claim fails.
3. Mental Health and Medication
Plaches alleges that Smythe knew he was bipolar and did not request a competency hearing. He also alleges that Smythe knew that he was taking medications at the time he entered his plea and was sentenced. Smythe denies knowing that Plaches was bipolar, but does admit that she knew that Plaches was taking medications, including Elavil and Prozac. In fact, the Truth-in-Sentencing Guilty Plea Form disclosed this and I addressed it when I accepted Plaches' plea. During the plea colloquy, the following exchange took place:
THE COURT: Did you fill out, read, and sign the truth-in-sentencing guilty plea form?
THE DEFENDANT: Yes, Your Honor.
THE COURT: That form indicates you are taking some medication; is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Why are you taking that medication?
THE DEFENDANT: Nerves.
THE COURT: Does that medication in any way, impair your ability to understand what you are doing today?
THE DEFENDANT: No, sir.
Plaches is bound by the answers that he gave at the plea colloquy. State v. Denston, 2003 WL 22293651, at *5 (Del.Super.Ct.), citing Fullman v. State, Del. Supr., No. 268, 1988, Christie, C.J. (Feb. 2, 1988) (Order). See Little v. Allsbrook, 731 F.2d 238, 239-40, n. 2 (4th Cir. 1984); cf. Patterson v. State, 684 A.2d 1234, 1238 (Del. 1996). He was given an opportunity to raise anything he wanted to regarding his mental competency. Plaches only said that he had "nerves" and that he was taking medication for his "nerves." Plaches did not state that he was bipolar. Instead, Plaches stated that he understood what he was doing in taking a nolo contendre plea. Plaches also indicated on the Truth-in-Sentencing Guilty Plea Form that he had read and understood all of the information on the form. Given this, I do not believe that there is any credible reason to suspect that Plaches had a mental illness when he committed the offenses. Moreover, I am satisfied, based upon my discussion with Plaches during the plea colloquy, that he fully understood what he was doing when he entered the nolo contendre plea. Therefore, this claim fails.
4. Hearing Aid and Education
Plaches alleges that he only has a sixth grade education and is legally deaf without his hearing aid. He contends that Smythe knew this and that he did not have his hearing aid during the plea negotiations, entry of the plea and sentencing. Plaches signed both the Plea Agreement and the Truth-in-Sentencing Guilty Plea Forms, which explain all of the relevant information. As I indicated previously, Plaches indicated on the Truth-in-Sentencing Guilty Plea Form that he had read and understood all of the information on the form. Although Plaches has presented a physician's report providing that he does wear a hearing aid in the left ear and has undergone surgeries on his right ear, there is nothing in the report that indicates that he is deaf. Smythe states that Plaches never informed her of any deafness and the matter was never raised during her interviews with him or at the time of the entry of the plea. Smythe claims that if she were aware of his deafness, she would have provided an interpreter to assist in the discussions. Smythe also denies that she was aware that his hearing aid was broken on January 28, 2003 and not replaced until May 19, 2003. Furthermore, Smythe suggests that if Plaches was deaf, "such a fact would have become evident as Petitioner entered his plea even without Petitioner so advising his counsel or the Court." I agree. I certainly would have noticed if Plaches could not hear during the plea colloquy or understood what was going on because of his limited education. Indeed, this matter came up during the plea colloquy.
THE COURT: Would you swear Mr. Plaches.
(Whereupon, the defendant herein, James Plaches was duly worn.)
THE DEFENDANT: With all due respect, yes. I ain't got my hearing aid.
THE COURT: Good afternoon, Mr. Plaches.
THE DEFENDANT: Sir.
THE COURT: I understand you want to plead no contest to the charges of assault in the second degree and burglary in the second degree; is that correct?
THE DEFENDANT:Yes, sir, Your Honor.
THE COURT: Do you understand the nature of each of those offenses?
THE DEFENDANT:Yes, Your Honor.
THE COURT: Do you understand that on each offense you face a sentence up to eight years in jail?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did you fill out, read, and sign the truth-in-sentencing guilty plea form?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: Are you sure that is what you want to do today?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. I will accept your no contest plea as made knowingly, intelligently, and voluntarily. Mr. Plaches, is there anything you want to say before I sentence you?
THE DEFENDANT: I apologize for what I done and I deserve what I got. I'm sorry. I can't hear too good. My hearing aid got broke while in prison here, so —
THE COURT: All right. Do you hear well enough to understand what we just did?
THE DEFENDANT: Yes, sir. Oh, yeah.
It is obvious to me, based on Plaches' answers to these questions, that he both heard and understood them. Quite simply, Plaches answered "yes" and "no" at all of the appropriate times. Indeed, when asked if he heard well enough to understand the proceedings, he answered, "Yes, sir. Oh yeah." Therefore, this claim is without merit.
Conclusion
Plaches must, in order to prevail on his motion for postconviction relief, satisfy the Strickland standard. Strickland, 466 U.S. 688 (1984). The strong presumption that Smythe's representation fell within the range of reasonable professional assistance has not been rebutted in this case. Plaches has failed to show that Smythe did not reasonably represent him and that but for any errors by Smythe, he would not have pled nolo contendre. There have been no concrete allegations of actual prejudice made by Plaches. Thus, Plaches has failed to satisfy Strickland
B. Evidentiary Hearing
Plaches has asked the Court to grant an evidentiary hearing to review his allegedly meritorious claims in his motion for postconviction relief. Superior Court Criminal Rule 61(h)(1) provides the following:
[a]fter considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable.
Since Plaches' motion for postconviction relief is so clearly without merit, an evidentiary hearing is not necessary.
C. Appointment of Counsel
Plaches has asked the Court to appoint counsel for him pursuant to Rule 26(b). However, this request is also without merit. Rule 26(b) provides that "[i]n appeals from rulings made under Superior Court Criminal Rule 61 or other post-conviction rulings of a trial court, the Court may in its discretion appoint counsel for an indigent defendant or child." SUPR. CT. R. 26(b). Further, it is well established that "[a] defendant does not have a Sixth Amendment right to court-appointed counsel in post-conviction relief proceedings." State v. Chao, 2002 WL 31814786, at *1 (Del.Super.Ct.), citing Ross v. Moffitt, 417 U.S. 600 (1974). The Court also has broad discretion to decide whether to appoint counsel in such proceedings. Chao, 2002 WL at *1, citing Carr v. State, 520 A.2d 1044 (Del.Super.Ct. 1997). Since both the motion for postconviction relief and the motion for an evidentiary hearing are without merit, the Court shall exercise its discretion and deny the motion for appointment of counsel as well.
CONCLUSION
For the foregoing reasons, Plaches' motions for postconviction relief, an evidentiary hearing and appointment of counsel are denied.