Opinion
ID No. 0509017113.
Submitted: March 13, 2008.
June 11, 2008.
Ricky D. Sheppard, SBI #, Delaware Correctional Center, Smyrna, DE.
Karl Haller, Esquire Haller Hudson, Georgetown, DE.
Adam D. Gelof, Esquire, Deputy Attorney General, Delaware Department of Justice, Georgetown, DE
Dear Counsel and Mr. Sheppard:
This is my decision on Ricky D. Sheppard's motion for postconviction relief. The State of Delaware charged Sheppard with two counts of Rape in the Second Degree and one count of Unlawful Sexual Contact in the Second Degree. The charges arose out of Sheppard's rape of his 14-year-old cousin (the "Victim"). The Victim waited for her school bus at a house near where Sheppard worked. Several times while the Victim was waiting for her school bus, Sheppard took her to a garage owned by his employer and raped her. Sheppard then took the Victim to school. The school's records confirmed that Sheppard dropped the Victim off at school 12 times over the two month period of time during which the rapes occurred. There were no witnesses other than Sheppard and the Victim to the crimes. Sheppard pled no contest to two counts of Rape in the Fourth Degree. I sentenced Sheppard to 16 years at supervision Level V, suspended for declining levels of probation after his completion of the "Family Problems" program. Sheppard was represented by Karl Haller, Esquire ("Haller"). Haller has submitted two affidavits in response to Sheppard's allegations.
This is Sheppard's first motion for postconviction relief and it was filed in a timely manner. Therefore, there are no procedural bars to his motion for postconviction relief. Sheppard alleges that (1) Haller was ineffective; (2) he accepted the plea offer under duress; and (3) his due process rights were violated.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
I. Ineffective Assistance of Counsel
Sheppard alleges that Haller (a) failed to thoroughly investigate the case, interview and subpoena all of the witnesses, and obtain documents that would have been helpful to his case; (b) was overwhelmed by his case load; (c) did not file an appeal; (d) prevented Sheppard from representing himself; (e) violated the attorney-client relationship; (f) was obligated to the State because he is a convicted felon; (g) did not retain expert witnesses; (h) focused too much on getting a plea; and (i) did not subject the State's case to adversarial testing. Sheppard also alleges that he would not have accepted the plea offer if Haller had represented him effectively.
In order to prevail on his claim of ineffective assistance of counsel, Sheppard must show (1) that Haller's actions fell below an objective standard of reasonableness; and (2) there exists a reasonable probability that, but for Haller's errors, Sheppard would not have pled guilty. Mere allegations of ineffectiveness will not suffice. Sheppard must make specific allegations of actual prejudice and substantiate them. Moreover, any review of Haller's representation is subject to a strong presumption that his representation of Sheppard was professionally reasonable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); Wright v. State, 671 A.2d 1353, 1356 (Del. 1996).
Wright, 671 A.2d at 1356; Younger v. State, 580 A.2d at 555-56.
Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
a. Witnesses
There were no actual witnesses other than Sheppard and the Victim to the crimes, leaving Sheppard to largely argue that the Victim was not cre dible. Sheppard hoped to discredit the Victim by showing that she was a liar and had disciplinary problems at school and on the school bus. He alleges that Haller should have interviewed the Victim's school teachers, school counselor and school bus driver and obtained the Victim's disciplinary records.
Haller and his investigator did interview a number of witnesses. However, non e of them were able to offer testimony helpful to Sheppard's case. Indeed, one witness, according to Haller, said that Sheppard was a "sick bastard." Haller did not interview the Victim's school teachers, school counselor and school bus driver, or subpoena her disciplinary records, because he did not believe it would have been helpful to do so. Whether or not it would have been helpful to do so remains unknown because Shepard's allegations about what such an investigation would have disclosed are non-specific and conclusory. Haller made a conscious decision not to pursue Sheppard's desired line of investigation. "A defendant challenging such decisions has the burden of supplying precisely what information would have been obtained had [counsel] undertaken the desired investigation and how this information would have changed the result." The defendant must "substantiate his concrete allegations of actual prejudice or else risk summary dismissal." Sheppard has clearly not sustained his burden in this regard. He has not offered the precise information that Haller would have obtained had he pursued his desired line of investigation. Sheppard has done nothing more than allege that the Victim was kicked off of the school bus for causing trouble on it and that she made allegations against boys in school and on the school bus, which led to charges against them that were ultimately dropped. Sheppard does not describe the facts behind these allegations, or identify the boys in question, or state what charges were filed against them, or why they were not pursued. Sheppard has also not offered a statement from anyone with actual knowledge of his allegations.
Otia Anderson, Shavern Oney, Sheldon Hayes, Tom DePalma, Sue Collins, Otis Kellam, Sr., Estella Kellam and Carmella DePalma. Haller also reviewed the Victim's videotaped int ervi ew an d other d isc ove ry.
United States v. Rodriguez, 53 F.3d 1439, 1449 (7th Cir. 1995).
Boughner v. State, 667 A.2d 1318, 1985 WL 466465 at **1 (Del. Aug. 2, 1995) (TABLE).
Sheppard alleges that Haller should have interviewed the "children" and "grandmother" because they were aware of "what was going on in the trailer." I do not know which children or grandmother or trailer Sheppard is referring to or how they or it might have been helpful to his defense.
Sheppard also alleges that Haller should have interviewed a number of Millsboro police officers. Sheppard argues that Haller should have done this because the police officers would have testified that Sheppard wa s parked in the parking lot for the M illsboro baseball fields every day by 7:25 a.m. Sheppard argues that if he was at the baseball fields every day by 7:25 a.m., then he could not have raped the victim twice in the mornin g before scho ol over a tw o month period of tim e. Aside from the fact that it is highly unlikely that the Millsboro police checked on the baseball fields every day precisely at 7:25 a.m., Sheppard has not offered a timeline that supports his position, leaving me with no basis to even begin to evaluate his allegations.
Sheppard, in one of his earlier filings in support of his motion for postconviction relief, set the time at 7:45 a.m. He moved it back to 7:25 a.m. in a later filing.
Sheppard alleges that Haller did not perform a thorough investigation of the case. Haller and an investigator went to the crime scene, talked to potential witnesses, reviewed the State's discovery, and talked to Sheppard on numerous occasions. Sheppard does not state what else Haller should have done and how it would have made a difference.
b. Caseload
Sheppard alleges that Haller was overwhelmed by his case load. However, She ppard does state how this hindered Haller's representation of him.
c. Appeal
Sheppard alleges that Haller was ineffective because he did not file an appeal. However, Sheppard does not state why an appeal should have been filed.
d. Pro-se
e. Lawyer-Client Privilege
See letter to Sheppard from Judge Richard F. Stokes dated February 27, 2006.
g. Expert Witnesses
Sheppard alleges that Haller should have hired psychological and medical experts to examine the Victim. However, Sheppard does not state in any meaningful way how these experts would have been helpful to his defense.
h. Plea
Sheppard alleges that Haller was too focused on obtaining a plea and had no trial strategy. Haller stated that his investigation and preparation for trial actually helped him obtain a good plea for Sheppard under the circumstances, which were not good for Sheppard. Haller also stated that his trial strategy, given the evidence against Sheppard, was to make the State prove every element of every charge against Sheppard. I have not seen anything to indicate that this was an unreasonable strategy.
i. Adversarial Testing
Sheppard alleges that Haller did not subject the State's case to "adversarial testing." Haller agrees, noting that he was not able to do so because Sheppard took a plea.
II. Duress
Sheppard alleges that he took the plea under duress. This allegation is based, in part, on Sheppard's belief that he had no choice but to take a plea because Haller did not effectively represent him. I have already concluded that Sheppard's allegations of ineffective assistance of counsel are without merit. The following is an excerpt of the relevant portion of Sheppard's plea colloquy:
The Court: Did anybody force you to take this plea?
The Defendant: No.
The Court: Did anybody promise you anything in exchange for this plea?
The Defendant: No.
The Court: Would you agree with me that if a jury heard the facts as outlined by the prose cutor, and accepted those facts to be true, it could find you guilty of these two offenses?
The Defendant: Yes.
The Court: Are you satisfied with Mr. Haller's representation of you?
The Defendant: Yes.
The Court: Are you sure this is how you want to resolve the charges against you?
The Defendant: Yes.
Tr. at 9-11.
Sheppard is bound by the answers that he gave during the plea colloq uy. There is absolutely no evidence that he was under duress and forced into taking the plea. Indeed, the record indicates that Sheppard was satisfied with Haller's representation of him and was sure that he wanted to resolve the charges against him by taking a plea.
State v. Adkins, 2005 WL 1384307 (Del.Super. May 18, 2005).
III. Due Process
Sheppard alleges that his due process rights were violated because Haller did not effectively represent him. I addressed all of these allegations before and concluded that there was no merit to any of them.
CONCLUSION
Sheppard's motion for postconviction relief is denied.
IT IS SO ORDERED.