Opinion
ID No. 9705000274 IK97-05-0091-R1
Submitted: December 10, 2001
Decided: March 28, 2002
Upon Defendant's Motion for Postconviction Relief
DENIED
Stephen R. Welch, Jr., Esq., Deputy Attorney General, for the State of Delaware.
Christopher D. Tease, Esq., Wilmington, Delaware, for the defendant.
OPINION
Pursuant to a written Plea Agreement, Defendant John E. Schmitz ("Schmitz") pled guilty on February 23, 1999, to Murder in the Second Degree, 11 Del. C. § 635, as a lesser-included offense to a capital charge of Murder in the First Degree, 11 Del. C. § 636. Schmitz was sentenced after a presentence investigation to twenty years in prison. He appealed and the judgment of this Court was affirmed.
Schmitz v. State, 2000 Del. LEXIS 115 (Del.Supr. 2000).
Schmitz has moved for postconviction relief contending that he was denied due process, that his counsel were ineffective and that the State breached the terms of the Plea Agreement concerning the recommendation of sentence. On February 12, 2001 the Court denied postconviction relief on the due process claim and appointed counsel to represent Schmitz on the remainder of his claims.
Schmitz claimed that the Court participated in plea negotiations in violation of his due process rights. His claim was denied summarily because it is refuted by the record (Letter Order of 2/12/01, Dkt. No. 119).
After careful consideration of the evidence presented, the record in this case, and the arguments of counsel, I conclude that Schmitz is not entitled to postconviction relief. Accordingly, the balance of his motion is also denied.
I. BACKGROUND
Schmitz was arrested on March 4, 1997 and subsequently indicted with his co-defendant, Bruce R. Banther ("Banther"), for Murder in the First Degree and companion charges arising from the killing of Dennis Ravers ("Ravers") with an ax. Ravers' body was mutilated, burned and was found buried in North Carolina under a pile of trash. Banther was tried first in 1998. He was convicted and after a penalty hearing, sentenced to life imprisonment without eligibility for probation or parole.
Jury selection for Schmitz's trial began on February 22, 1999 with a special panel summoned for that purpose. On the second day of jury selection counsel informed the Court in Chambers and on the record of a proffered Plea Agreement. In return for an agreed Rule 11(e)(1)(C) sentence "cap" of thirteen years at Level V, Schmitz would plead guilty to Murder in the Second Degree, Conspiracy in the Second Degree, Theft Felony and Forgery in the Second Degree. Sentencing would follow a presentence investigation. Thus, under the Rule then in effect, either party would be able to withdraw from the Plea Agreement after the presentence investigation and demand that the trial start over if the Court later decided not to be bound by the agreed cap of thirteen years at Level V.
Super. Ct. Crim. R. 11(e)(1)(C) was subsequently deleted effective July 1, 2001.
At the time of this disclosure, the Court stated the "practical concern" that "we are in the midst of jury selection" and advised counsel "my opinion at this stage of this proceeding is to not be bound by Rule 11(e)(1)(C)." Counsel were also told "the option of starting this trial all over again is not one which I am in favor of."
Tr. of Office Conference and Guilty Plea of 2/23/99, at 6, Dkt. No. 114.
Approximately ninety minutes later, the parties presented in open court a different Plea Agreement for Schmitz to plead guilty to Murder in the Second Degree. In return the State agreed to drop all remaining charges and to recommend a sentence "cap" of thirteen years at Level V under Rule 11(e)(1)(B). Again, sentencing would follow a presentence investigation, but pursuant to Rule 11(e)(1)(B) there would be no option for a withdrawal of the plea by either party if the sentence recommendation was not accepted.
After a plea colloquy with Schmitz under oath, the Court accepted the guilty plea and ordered a presentence investigation. Jury selection ended and the balance of the venire was sent home.
On May 14, 1999 Schmitz and his counsel appeared for sentencing. Counsel stated that there was "no argument with any of the facts of the presentence report." She discussed Schmitz's choice not to talk about the crime, which was his right, and the mitigating factors in the case. She disputed the aggravating factor of excessive cruelty cited in the presentence report. She argued that this was not a case of excessive cruelty within the meaning of the SENTAC guidelines and asked the Court to impose a sentence of ten years at Level V.
Tr. of Sentencing of 5/14/99, at 2, Dkt. No. 102.
Schmitz addressed the Court and explained there was no excuse for what he had done. He apologized to the Ravers family and his own. He explained he had no prior record and that he was a model prisoner. He also stated:
But I understand my actions in assisting Bruce Banther will mean I will receive at least a ten year sentence. I deserve this sentence.
When you do sentence me, what you don't sentence me to, God will.
Tr. of Sentencing of 5/14/99, at 9, Dkt. No. 102.
The State responded and took exception to defense counsel's argument that this was not a case of "excessive cruelty." The prosecutor commented about the Ravers family who were present and their love for the victim. He also commended the presentence officer for his report and the State and Air Force investigators for their work. The prosecutor concluded his remarks as follows:
The State agreed to recommend thirteen years at Level 5, pursuant to the plea agreement. The State stands true to its word and recommends that the Court impose a thirteen year sentence.
Id. at 10-11.
The Court then explained its independent determination that the maximum sentence of twenty years at Level V was necessary for the protection of the public and imposed that sentence.
The Court said the following before imposing a twenty year sentence:
I've given very careful consideration to all of your comments, Mr. Schmitz, today, and the content of the presentence report and the comments of counsel. There are undisputed mitigating circumstances in your background, including your record in the Air Force and the various awards and outstanding performance reports that you received before meeting Bruce Banther.
All of these mitigating circumstances within the report and as described by your counsel, given the nature of the offense, in my view, are adequately addressed by the reduced charge to which you have been convicted. What is apparent to the Court is notwithstanding the character trait that you apparently have had in not wishing to lie to the Court, you do have within that bundle of character traits, a horrible propensity for vicious, violent, depraved cruelty and grizzly butchery. A substantial jail sentence is warranted for the protection of the public. In my view, that is the maximum sentence for this crime before the Court. Tr. of Sentencing of 5/14/99 at 11-12, Dkt. No. 102.
II. DISCUSSION A. The Ineffective Assistance of Counsel Claims
Because none of the procedural bars of Rule 61 apply here, the Court will consider Schmitz's arguments for postconviction relief on their merits. Schmitz argues that his counsel was ineffective because 1) they failed to advise him of the mandatory nature of the sentence and, 2) they failed to advise him of the significance of the Court's rejection of the proposed Rule 11(e)(1)(C) agreement.To prevail on his claims of ineffective assistance of counsel, Schmitz 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 of the proceeding would have been different." Schmitz must rebut a "strong presumption" that defense counsels' 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. The two-part Strickland test applies to challenges to a guilty plea based upon alleged ineffective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), reh'g denied, 467 U.S. 1267 (1984).
Strickland at 689.
Albury v. State, 551 A.2d 53, 58 (Del.Supr. 1988) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
1. The Mandatory Sentence Issue
Turning to his first ineffective assistance of counsel claim, Schmitz argues that he should have been told that the minimum sentence of ten years for Murder in the Second Degree would be served without good time eligibility. The State replies that the plain language of 11 Del. C. § 4381 controls and that Schmitz is entitled to good time as a matter of law.11 Del. C. § 4381 was enacted as part of the Truth in Sentencing Act of 1989 and expressly provides that "[a]ll sentences imposed for any offenses other than a life sentence imposed for class A felonies may be reduced by earned good time." Nonetheless, Schmitz argues that 11 Del. C. § 234 precludes good time eligibility because that section requires that "minimum," "mandatory," "minimum mandatory" and "mandatory minimum" are to be construed as being "synonymous."
11 Del. C. § 234 provides:
Definition of terms requiring certain sentences.
When used for the purpose of describing or requiring a sentence of incarceration imposed pursuant to this title, the terms "minimum," "mandatory," "minimum mandatory" and "mandatory minimum" shall be construed as being synonymous.
(emphasis added).
I am satisfied that the definition under 11 Del. C. § 234 does not control eligibility for good time. By its terms Section 234 applies only for the purpose of describing or requiring a sentence of incarceration under Title 11. There are specific statutes involving mandatory sentences at Level V for offenses which expressly preclude eligibility for good time. One example is Possession of a Deadly Weapon During the Commission of a Felony which states "no person convicted for a violation of this section shall be eligible for good time." Although the general language of 11 Del. C. § 4381 conflicts with this language, that conflict is resolved by the well-established rule of construction which requires that "when a specific statute is enacted that appears to conflict with an existing general statute, the subsequently enacted specific statute is controlling."
See 11 Del. C. § 1447(b).
Cede Co. v. Technicolor, Inc., 758 A.2d 485, 494 (Del.Supr. 2000); State v. Cook, 600 A.2d 352, 355 (Del.Supr. 1991); Blue Cross and Blue Shield of Delaware, Inc. v. Elliott, 449 A.2d 267, 270 (Del.Supr. 1982).
Therefore, while minimum, mandatory, or mandatory minimum sentences are not subject to suspension by the Court, all are subject to good time eligibility except for a) a life sentence for a class A felony, or b) any other sentence pursuant to a specific statute enacted after the Truth in Sentencing Act of 1989 which expressly precludes eligibility for good time.
Compare State v. Rodriguez, 2001 Del. Super. LEXIS 57 (Del.Super.); State v. Barrera, 1997 Del. Super. LEXIS 303 (Del.Super.); see also Rust v. Kearney, Del. Super., C.A. No. 01M-03-029, Graves, J. (Sept. 27, 2001).
Because the statute defining the punishment for Murder in the Second Degree does not expressly preclude eligibility for good time, Schmitz is entitled to earn it pursuant to 11 Del. C. § 4381. Schmitz's counsel committed no legal error by advising him that his sentence would be subject to good time eligibility. Thus, Schmitz's claim of ineffective assistance of counsel fails to satisfy the first prong of the Strickland test.
11 Del. C. § 635 provides in relevant part:
Murder in the second degree is a class B felony. Notwithstanding any provision of this title to the contrary, the minimum sentence for a person convicted of murder in the second degree in violation of this section shall be 10 years at Level V.
Schmitz has also failed to satisfy the second prong of the Strickland test on this claim. The Plea Agreement he made with the State was clearly advantageous to him. He knew his co-defendant had been convicted and sentenced to imprisonment for the remainder of his natural life at the time the agreement was made. He knew that there was scientific and circumstantial evidence linking him and his truck to the crime and that the ax used to kill Ravers was purchased by him. Even if I accepted Schmitz's argument that counsel should have advised him that he was not eligible for good time, I do not find a reasonable probability that he would have rejected this advantageous Plea Agreement and insisted on going to trial. His claim fails to satisfy the second prong under Strickland.
2. The Rule 11(e)(1)(C) Issue
Schmitz next argues that his counsel was ineffective because they failed to advise him of the significance of the Court's rejection of the proposed Rule 11(e)(1)(C) Agreement. Schmitz already knew that the same Judge was assigned to Banther's case and his. The only significance of the Court's statements about Rule 11(e)(1)(C) was that a plea agreement under that rule would not be accepted in the midst of a capital jury selection.
Counsel told Schmitz after the office conference that a Rule 11(e)(1)(C) plea agreement would not be accepted. His counsel explained that under a revised offer pursuant to Rule 11(e)(1)(B) the State would recommend 13 years, that most of the time Judges follow prosecutor's recommendations but that he still could be sentenced to 20 years. She told him, "I don't think he'll do that, but he can." Schmitz was grateful that his counsel obtained this plea offer and relieved that he would not have to go on trial for his life. Schmitz willingly agreed to a plea agreement under Rule 11(e)(1)(B) and he told his counsel, "I don't want to end up in the same shape that Bruce Banther is now, serving a life sentence with no chance of probation and parole, and I know I have to proceed with the plea."
Tr. of Rule 61 Hr'g of 6/22/01, at 109, Dkt. No. 150.
Id.
Id. at 138.
Id. at 71.
During the plea colloquy itself Schmitz's counsel reiterated what was explained to him about Rule 11(e)(1)(B). Counsel stated:
He also understands the implications of Rule 11(e)(1)(B) which are that the State has agreed to recommend a sentence of thirteen years. As the Court might expect, we will be asking for ten. Mr. Schmitz understands, though, that the Court may sentence him anywhere between ten and twenty years. . . .
Tr. of Office Conference and Guilty Plea of 2/23/99, at 8, Dkt. No. 114.
Schmitz acknowledged the correctness of his counsel's comments and that the statutory penalty allowed for up to twenty years imprisonment with a minimum penalty of ten years which must be imposed. Schmitz also understood that he would have no recourse if he was sentenced to twenty years imprisonment.
Id. at 10-11.
Id. at 8-9.
Schmitz's claim that he is entitled to postconviction relief on the facts of this case is without merit. His counsel provided effective representation. Furthermore, he has not shown a reasonable probability that he would have insisted on a trial if counsel had done more.
B. The Breach of Plea Agreement Claim
A Plea Agreement is a contract and when it contains a promise of a prosecutor it must be fulfilled or relief will be granted when there has been reliance and a breach. Unless agreed to by a prosecutor, Rule 11 does not require the prosecutor to recommend a sentence "enthusiastically" or to explain the reasons for the recommendation.
Santobello v. New York, 404 U.S. 257 (1971); Shields v. State, 374 A.2d 816 (Del.Supr. 1977).
United States v. Benchimol, 471 U.S. 453 (1985).
In this case I am satisfied that there was no breach of the Plea Agreement by the prosecutor at sentencing. A sentencing range was still very much at issue and under the Agreement the defense could argue for ten years and the prosecutor could argue for thirteen years. When defense counsel argued for the ten year minimum sentence, she asserted this was not a case of "excessive cruelty." The Plea Agreement did not preclude the prosecutor from responding to defense counsel's arguments for a sentence below the thirteen year "cap." Here the prosecutor's comments were responsive to the defense arguments and supportive of a thirteen year sentence which the prosecutor expressly recommended.
After a careful review of the transcript of sentencing and the Plea Agreement, I find Schmitz's claim that the prosecutor breached the Plea Agreement to be without merit.
III. CONCLUSION
Defense counsel negotiated a Plea Agreement for Schmitz that was advantageous to him. He entered his guilty plea knowingly and voluntarily with full knowledge of the consequences of the plea including a possible sentence of twenty years at Level V. Defense counsels' representation in this case did not fall below an objective standard of reasonableness. Nor has Schmitz shown prejudice or that he would have insisted on a capital murder trial if his counsel had done more. There was no breach of the Plea Agreement in this case by the prosecutor's fair response to defense counsel's arguments. The State recommended a thirteen year sentence at Level V as it promised. The fact that the Court chose not to follow the recommendation after an independent assessment does not provide any basis for postconviction relief.
Because there is no merit to Schmitz's motion for postconviction relief, the motion is DENIED.
IT IS SO ORDERED.