Opinion
ID No. 1708000896
01-15-2021
STATE OF DELAWARE v. KHALIL J. SEWARD, Defendant.
Lindsay A. Taylor, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware. Khalil J. Seward, Pro se.
RK17-08-0094-01 P D/W (F)
RK17-08-0096-01 Use of an Animal to Avoid Capture (M)
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Lindsay A. Taylor, Esquire, Deputy Attorney General, Department of Justice, for the State of Delaware. Khalil J. Seward, Pro se. FREUD, Commissioner
The defendant, Khalil J. Seward ("Seward"), pled guilty at his Final Case Review on January 10, 2018 to one count of Possession of a Firearm by a Person Prohibited , 11 Del. C. § 1448 and one count of Use of an Animal to Avoid Capture, 11 Del. C. § 1257. He also faced three additional counts of Possession of a Firearm at the same time as Illegal Drug Possession, one count of Gang Participation, one count of Resisting Arrest and one count of Possession of Marijuana. The State entered nolle prosequis on the remaining charges in exchange for Seward's plea. The State and Defense recommended a pre-sentence investigation report be requested. The Court sentenced Seward on February 28, 2018 after thorough review of the Investigative Services Office report and listening to the comments of counsel concerning sentencing recommendations. Seward chose not speak at his sentence. The State recommended a sentence of five years incarceration and Seward's counsel recommended a probationary sentence based on Seward's mental health issues. The Court found multiple aggravating factors and sentenced Seward to a total of nine years incarceration suspended afer serving two years at Level V for probation. Had Seward gone to trial and been found guilty as charged he faced substantially more time in prison. Seward's counsel filed a Motion for Reargument/Reduction of Sentence which was denied on March 21, 2018. Seward did not appeal his conviction or sentence to the State Supreme Court.
State v. Seward, Super. Ct., ID No. 1708000896, Witham, R.J., (March 21, 2018) (ORDER).
Next, Seward filed a pro se Motion for Review of Plea and Breach of Agreement on October 3, 2018. The Court denied the motion on November 18, 2018 stating that Seward's arguments were more appropriate for a postconviction motion pursuant to Superior Court Criminal Rule 61. Seward filed a pro se Motion for Postconviction Relief on November 5, 2018 and a Motion for Appointment of Counsel. The Court denied the Motion for Appointment of Counsel on December 5, 2018. In his Rule 61 motion Seward alleges, in part, ineffective assistance of counsel.
State v. Seward, Super. Ct., ID No. 1708000896, Witham, R.J., ,(Nov. 18, 2018) (ORDER).
State v. Seward, Super. Ct., ID No. 1708000896, Witham, R.J., . (Dec. 5, 2018) (ORDER).
FACTS
According to the State's Response to the motion and the Affidavit of Probable Cause, the following facts are noted:
On August 2, 2017, the Dover Police Department executed a search warrant at Seward's residence. When they entered the house, Seward used a large Cane Corso dog to prevent police from detaining him. During a search of Seward's room, police found two handguns in the room and a third gun was recovered in another part of the house. In a post-Miranda interview Seward admitted to possessing one of the handguns. He was also seen on social media video holding the gun. His DNA was recovered on a second handgun as well.
State v. Seward, DI 1 and DI 42.
SEWARD'S CONTENTIONS
In his motion, he raises the following grounds for relief:
Ground one: Ineffective Assistance of Counsel.
On Jan. 15, 20181 entered a plea to 0 - 12 months with no Level 5 time. I made counsel aware if the Sate and the Court exceeds Plea Agreement I would immediately withdraw. He stated to me and my family 'not to worry.'
Ground two: Faulty legal advice during Plea Negotiations.
Counsel guaranteed no level 5 time would result from the plea of 0 - 12 months. However when the Court sentenced movant to 2 years level 5 counsel did object but did not do any
Seward did not file a memorandum or Reply in support of his claims.follow-up motions. Resulting in faulty legal advice.
DISCUSSION
Under Delaware law, the Court must first determine whether Seward has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of the postconviction relief claims. Under Rule 61, postconviction claims for relief must be brought within one year of the conviction becoming final. Seward's motion was filed in a timely fashion, thus the bar of Rule 61(i)(1) does not apply to the motion. As this is Seward's initial motion for postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any claim not previously asserted in a postconviction motion, does not apply either.
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
Super. Ct. Crim. R. 61(i)(1).
Grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred unless the movant demonstrates: (1) cause for relief from the procedural default; and (2) prejudice from a violation of the movant's rights. The bars to relief are inapplicable to a jurisdictional challenge or "to a claim that satisfies the pleading requirements of subparagraph (2)(i) or (2)(ii) of subdivision (d) of Rule 61. To meet the requirements of Rule 61(d)(2) a defendant must plead with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted or that he pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United State or Delaware Supreme courts, applies to the defendant's case rendering the conviction invalid. Seward's motion pleads neither requirement of Rule 61(d)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(5).
Super. Ct. Crim. R. 61(d)(2)(i).
Super. Ct. Crim. R. 61(d)(2)(ii).
None of Seward's claims were raised at the plea, sentencing or on direct appeal. Therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause for the default and prejudice. To some extent each of Seward's claims are based on ineffective assistance of counsel; therefore, he has alleged cause for his failure to have raised them earlier.
At this point, Rule 61(i)(3) does not bar relief as to Seward's grounds for relief provided he demonstrates that his counsel was ineffective and that he was prejudiced by counsel's actions. To prevail on his claim of ineffective assistance of counsel, Seward must meet the two-prong test of Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires a defendant show: (1) that counsel's representation fell below an objective standard of reasonableness; and (2) that counsel's actions were prejudicial to him in that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been his acquittal. The failure to establish that a defendant would not have pled guilty and would have proceeded to trial is sufficient cause for denial of relief. In addition, Delaware courts have consistently held that in setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. When examining the representation of counsel pursuant to the first prong of the Strickland test, there is a strong presumption that counsel's conduct was professionally reasonable. This standard is highly demanding. Strickland mandates that, when viewing counsel's representation, this Court must endeavor to "eliminate the distorting effects of hindsight."
466 U.S. 668 (1984).
Id. at 687.
Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53, 60 (Del. 1988))(citations omitted).
See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995 WL 466465 at *1 (Del. Supr.)).
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).
Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477 U.S. 365, 383 (1986)).
Strickland, 466 U.S. at 689.
Following a complete review of the record in this matter, it is abundantly clear that Seward has failed to allege any facts sufficient to substantiate his claim that his attorney was ineffective. I find trial counsel's affidavit, in conjunction with the record, more credible that Seward's self-serving claims that his counsel's representation was ineffective. Seward's counsel denies the allegations. Additionally Seward's first ground for relief is clearly contradicted by the Plea Agreement itself and the Plea Colloquy, neither of which state that Seward had an agreement to receive only probation.
Seward was facing the possibility of substantial time in prison had he been convicted on all the charges. The sentence and plea were very reasonable under all the circumstances, especially in light of the evidence against him including his admission to possession of the firearm and his DNA on the weapon. Prior to the entry of the plea, Seward and his attorney discussed the case. The plea bargain was clearly advantageous to Seward. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Seward entered his guilty plea, he stated he was satisfied with defense counsel's performance. He also admitted his guilt. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Seward has failed to establish that his counsel's representation was ineffective under the Strickland test.
State v. Seward, Del. Super., I.D. No. 1708000896, (Jan. 10, 2018), Tr. at 4-7.
Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d 931, 937-938 (Del. 1994)).
Even assuming, arguendo, that counsel's representation of Seward was somehow deficient, Seward must satisfy the second prong of the Strickland test, prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk dismissal. In an attempt to show prejudice, Seward simply asserts that his counsel was ineffective. His statements are insufficient to establish prejudice, particularly in light of the evidence against him. Therefore, I find Seward's grounds for relief meritless.
Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552, 556 (Del. 1990)).
To the extent that Seward alleges his plea was involuntary, the record contradicts such an allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary, the Court looks to a plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty-plea hearing, the Court asked Seward whether he understood the nature of the charges, the consequences of his pleading guilty, and whether he was voluntarily pleading guilty. The Court asked Seward if he understood he would waive his constitutional rights if he pled guilty including the right to suppress evidence; if he understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty Plea Form ("Guilty Plea Form"); and whether he gave truthful answers to all the questions on the form. The Court asked Seward if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Seward if he was entering into the plea because he was guilty of the charge. The Court also asked Seward if he was satisfied with this counsel's representation. Seward answered each of these questions affirmatively.
Godinez v. Moran, 509 U.S. 389, 400 (1993).
State v. Seward, Del. Super., ID No. 1708000896 (Jan. 10, 2018) Tr. at 4-7.
Furthermore, prior to entering his guilty plea, Seward signed a Guilty Plea Form and Plea Agreement in his own handwriting. Seward's signatures on the forms indicate that he understood the constitutional rights he was relinquishing by pleading guilty and that he freely and voluntarily decided to plead guilty to the charges listed in the Plea Agreement. Seward is bound by the statements he made on the signed Guilty Plea Form, unless he proves otherwise by clear and convincing evidence. I confidently find that Seward entered his guilty plea knowingly and voluntarily and that Seward's grounds for relief are completely meritless.
Sommerville 703 A.2d at 632. --------
CONCLUSION
I find that Seward's counsel represented him in a competent and effective manner and that Seward has failed to demonstrate any prejudice stemming from the representation. I also find that Seward's guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Seward's motion for postconviction relief as procedurally barred and completely meritless pursuant to Superior Court Criminal Rule 61(i)(3).
/s/ Andrea M. Freud
Commissioner AMF/dsc
oc: Prothonotary