Opinion
No. IN-02-11-0506, ID No. 0211000006.
Submitted: July 15, 2005.
Decided: September 22, 2005.
Upon Motion of the Defendant for Post-Conviction Relief — DENIED.
MEMORANDUM OPINION
Defendant Jhavon Robinson has moved for postconviction relief. On July 14, 2004, he pled guilty to two separate charges. One plea was to trafficking in cocaine 50-99 grams (reduced from trafficking more than 100 grams) which was committed on October 31, 2002. The other plea was to a charge in a separate, later indictment of possession with intent to deliver cocaine. This offense occurred October 17, 2003.
The defendant was out on bail when the new offenses were committed. He failed to show, however, for the trial of the 2002 charges which was set for March 25, 2004, and a capias was issued for him. He was held in default of bail from October 17, 2005 to November 12, 2003.
His motion, however, addresses only the 2002 trafficking arrest and plea. It does not seek relief from the guilty plea to the 2003 possession with intent to deliver cocaine.
The eight years represents five mandatory minimum years for trafficking 50-99 grams ( 16 Del.C. § 4753A(a)(2)b) and three years because he had a prior conviction for possession with intent to deliver cocaine ( 16 Del.C. § 4763). That three year sentence should actually have been five years ( 16 Del.C. § 4763(a)(2)b). Shortly before filing his current motion, the Court denied Robinson's motion for modification of this sentence.
Background
Robinson was arrested on September 1, 2002, for the charges of trafficking more than 100 grams of cocaine, possession with intent to deliver cocaine, possession of cocaine within 300 feet of a park, resisting arrest, criminal trespass first degree, and possession of drug paraphernalia. He was originally held on default of bail but posted it one week later.Sometime after his indictment for the October 31, 2002 charges, the State provided him with automatic discovery which is normal practice in drug case. While the Court is unaware of what was supplied in that automatic discovery, a copy of one or more police reports was or were likely supplied.
Docket number 3, December 20, 2002.
That fact is evidenced from Robinson's extensive reference to police reports in his current motion:
On October 31, 2002, Jhavon Robinson (hereinafter "movant") is alleged to have been standing on the 700 Block of West 5th Street in Wilmington when he was observed by Officers Jordan and Janvier of the Wilmington Police Department. The officers saw the movant walking in the direction of the parking lot of the homes at 801 West 5th Street, which was the movant's residence, and circled the Block to initiate contact with him. The justification for the officers' attempt to make contact with the movant was based on the assertion that the location was well known as a "drug area in which [the] officers made several drug arrests in the past." Additionally, the officers believed that the movant was, in fact, one "John Barrett," who was "one of the individuals that [the officers] received information on in regards to illegal drug sales at the above location." This belief was not only predicated by the movant's physical appearance, but also by the fact that there was a gold, Ford van parked within the above-mentioned parking lot, which belonged to John Barrett.
Upon circling the Block, the officers attempted to make contact with the movant who fled away on foot. A foot chase ensued, with Officer Jordan pursuing the suspect. Officer Jordan then arrived at the front door of the residence at 801 W. 5th Street, which was being rented by Miss Lattice Collins, the movant's children's mother. Without any warrant, or permission, Officer Jordan made a forced entry into the home, wherein he encountered a "black male" fitting the description of the suspect, one "John Barrett." The "black male" fled out of the rear sliding glass door of the residence and began running north through the rear of the yards when he was spotted by police officers in the backyard. He ran back into the residence momentarily, then back on the back patio, wherein he was forcefully apprehended and taken into custody. Approximately 166.7 grams of cocaine was recovered, along with a digital scale and $1,736 in U.S. currency. As the officers placed the suspect into custody, they cheerfully shouted, "We got you J.B.! We got you J.B.!"
Upon his detention at the Wilmington Hospital, wherein the suspect was receiving treatment for injuries sustained by the police officers "force," the suspect was asked to identify himself, at which point he told the officers that he was, in fact, Jhavon Robinson. The officers did not believe this to be true, as they were certain that they were chasing "John Barrett," who was the subject of their alleged investigation the entire time.
While the movant was in custody at the Wilmington Hospital, officers Jordan and Janvier returned to the Block of 801 West 5th Street to confirm that the gold van parked in the parking lot belonged to their suspect, "John Barrett." This fact ascertained, and the officers continued to build an evidentiary case against "John Barrett." Upon having the Wilmington Police Department's K-9 Unit do an "exterior search" of the vehicle, the officers made entry into the vehicle, wherein they found a black wallet and I.D. cared (sic) belonging to "one John Barrett," along with a clear plastic knotted bag containing an off white chunky substance "to wit crack cocaine" in the consoles of the vehicle. The keys were also in the vehicle.
As the search of Mr. Barrett's vehicle was being conducted without his presence, a lady approached the officers and identified herself as Edna Barrett, stating that she was the owner of the vehicle's mother, and wanted to know why her son's car was being searched. The officers informed Miss Barrett that they had arrested her son, John Barrett, and had located additional drugs in his car. Miss Barrett then advised the officers that they did not have her son in custody, but had another individual. Amidst the interview with Miss Barrett, the officers noticed a younger "black male," who was identified as John Barrett's brother. Mr. Barrett's brother notified the officers that they did not arrest his brother, but in fact, had a "black male" named Jhavon who looked like his brother (John Barrett).
After the interview, officers Jordan and Janvier returned to the Wilmington Hospital and spoke with the suspect they had in custody. When asked his name, the movant again responded that he was, in fact, Jhavon Robinson, and not the person they were looking for, John Barrett. The movant continued to cooperate with the officers, and was eventually charged with Trafficking in Cocaine, Possession With the Intent to Deliver Cocaine, Possession of a Controlled Substance Within 300 Feet of a Park, Resisting Arrest, Criminal Trespass in the First Degree, and Possession of Drug Paraphernalia. Afterwards, he was detained at Howard R. Young Corrections in lieu of a secured bail.
Robinson motion p. 2-4.
When pleading to the two drug charges, one of which included the 2002 trafficking charge, Robinson signed this Court's TIS Guilty Plea form indicating he was satisfied with his lawyer's advice. He also repeated that satisfaction during the Court's verbal plea colloquy with him.
Claims
Robinson claims that his attorney was ineffective, apparently because he did not challenge the legality of the search or the alleged illegality of his arrest. While he states the arrest and search were illegal, the gravamen of his complaint is that his lawyer did not take action to challenge the search and arrest.
Discussion
Before undertaking consideration of the merit of Robinson's claims, the Court must determine if there are any procedural impediments to doing so. In this case there are none.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
But the threshold inquiry does not end there. When he pled guilty, Robinson twice (once in writing and once verbally) said he was satisfied with his counsel's advice. Absent clear and convincing evidence to the contrary, Robinson is bound by those statements. There is a hollow ring to Robinson's current claims since they were filed eleven months after his plea and shortly after the denial of his request to modify his sentence.
Sommerville v. State, 703 A.2d 629, 632 (Del. 1997).
The list of trial and appeal rights on the TIS Guilty Plea form does not state that one of the rights being waived by the plea is the right to file and pursue motions to suppress. But during the verbal plea colloquy along with repeating to Robinson the rights which are listed on the form, the Court told him he had a right to file a motion to suppress. Along with his statement on the Guilty Plea form, acknowledging his rights and that he was waiving them, he verbally stated he understood his rights and that he was giving up all of them, including the right to file a suppression motion.
To accept his plea, it must have been voluntary and intelligent. Robinson was twenty-five when he entered his pleas. He has two prior drug felony pleas in this Court (1999), and a prior drug misdemeanor and conspiracy second degree plea (2000). He is, therefore, not a novice in the system. He is a high school graduate. The Court is not saying all this to indicate he is an attorney or that he is well-versed in the intricacies of search and seizure principles. The point is that those factors play a role in knowing a plea meets the acceptable criteria for taking a guilty plea. These latest pleas reflect his third separate time of pleading guilty in this Court.
Howard v. State, 458 A.2d 1180, 1185 (Del. 1969)
Weeks v. State, 653 A.2d 266, 270 (Del. 1995).
The recitation of his record is important to state also because Robinson claims that his attorney falsely stated to his mother that, as charged, he faced life imprisonment. He did face a minimum sentence of eight years on the original trafficking charge of more than 100 grams. He is not qualified as a habitual offender since, when he pled to these charges, he lacked the requisite three prior, separate felony convictions. This claim of a fake statement by his counsel about the potential penalty is not credible.
16 Del.C. § 4753A(a)(2)c.
The more fundamental flaw in his ineffective assistance claim is that he did not knowingly waive his right to file a suppression motion. When coupled with his written and verbal statements acknowledging knowing and surrendering his rights and written and verbal expression of satisfaction with his lawyer's advice, these claims eleven months later manifest a total lack of merit. His surrender of his right to move to suppress was, therefore, knowing, as well as, voluntary and intelligent.
Sullivan v. State, 636 A.2d 931, 938 (Del. 1994).
Even if a motion to suppress had been filed, it would have lacked merit. Ordinarily, a court could only state that where there had been a trial and/or a suppression hearing. But Robinson supplies enough information in his motion to demonstrate the lack of merit of his claim. First, he had the police reports, as did his counsel, prior to trial. Second, he made his counsel's job more difficult by absenting himself from his original trial date leading to the issuance of a capias.
The third reason for lack of merit initially needs a statement of several applicable legal principles. Robinson's claims essentially are for ineffective assistance of counsel. To establish that he must show that (1) counsel's conduct fell below some objective standard and (2) that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. These standards apply to guilty pleas, too.
Santiago v. State, 1995 WL 312656 (Del.), at *1.
Albury v. State, 551 A.2d 53, 58 (Del. 1988).
Employing these standards here, one readily sees that even based on the portions of the police reports Robinson cites, a motion to suppress would have been denied. What portions he chooses to cite in his motion show the police had a reasonable articulable suspicion to approach and question him. Unlike the defendant in Jones v. State, the police (as reflected again in those portions of the report to which Robinson refers) never told him to stop or did anything else rising to the level of a seizure.
Jones v. State, 745 A.2d 856, 868 (Del. 1999).
When Robinson saw the police, he ran. The police gave chase. He ran into someone else's house but which his motion states was also his residence. Robinson again fled, again without anything indicating a seizure. He continued to run and when finally caught, the police found 166.7 grams of cocaine, $1,736.00 in currency and a digital scale. In this case, when after all the other circumstances cited in the select portions of the report Robinson cites, and the running, he was first seized and properly so when the police finally caught up to him.
This raises a question about his standing to complain about the police chasing him into and entering the house. Even if he had standing the police conduct was not improper.
The result which flows from that is that if counsel had filed a motion to suppress, it would have been denied. There can be no ineffective assistance in that.
Grosvenor v. State, 849 A.2d 33, 36 (Del. 2004).
Robinson also contends his arrest was illegal because the police initially believed he was someone else, a John Barrett. He says he gave his real name to the police at the hospital. Only a little later in the investigation, did the police determine that Robinson was not Barrett. Regrettably for Robinson, it is all too common for people with records, outstanding warrants or capias when approached by the police and/or questioned or arrested to give false names. The selected portions of the report he provides about the name issue again demonstrate the meritlessness of this claim. Those references are to Robinson's physical similarities to Barrett, the similarity in clothing and the proximity of Barrett's van. Robinson, of course, did not help that by adding running, as he did, to the list.
Again, if counsel had filed some kind of motion challenging the arrest, it would have been denied. No error of counsel means there was no ineffectiveness. In addition, a guilty plea constitutes a waiver to challenge even an illegal arrest (not stating there was one here). Robinson complains that he pled to a "drop dead" (plea now a trial later) offer. He pled to one charge from each of two indictments. As charged in those indictments, if convicted, he faced a minimum of 15 years which would have to have been imposed. One charge to which he pled guilty, possession with intent to deliver, was committed a year after the trafficking charge to which he also pled and is now challenging. The contents and claims in Robinson's current motion, his capias for missing the first trial date for the 2003 charges, the minimum jail time he faced if convicted as originally charged, and his record make a most unconvincing case that he would have gone to trial but for counsel's alleged deficiencies.
Johnson v. State, 813 A.2d 161, 167 (Del. 2001).
Smith v. State, 824 A.2d 308 (TABLE), 2004 WL 120530 (Del.), at *1.
Robinson's complaint about ineffective assistance of counsel relates only to the 2002 trafficking charge. He makes no complaints of ineffectiveness relating to anything concerning the 2003 charges and the plea to possession with intent to deliver. It seems disingenuous to attack just the one and smear by innuendo the other. This further illustrates Robinson's inability to show he would have gone to trial, rather than plead, on both sets of charges but for counsel's errors.
Conclusion
For the reasons stated herein, Jhavon Robinson's motion for post-conviction relief is DENIED.