Opinion
K01-07-0584I-R1 ID No. 0107018103
July 10, 2002
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
James Kriner, Esq., Deputy Attorney General, Department of Justice for the State of Delaware.
Kathy M. Smith, pro se.
ORDER
On this 10th day of July, 2002, upon consideration of the Defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation, and the record in this case, it appears that:
(1) The defendant, Kathy M. Smith ("Smith"), pled guilty on October 25, 2001 to one count of Attempted Robbery in the Second Degree, 11 Del. C. § 531. A presentence office investigation was ordered. The Court sentenced Smith on December 27, 2001 to five years incarceration suspended for probation upon Smith's successful completion of the "Village Program".
(2) The defendant did not appeal her conviction or sentence to the Delaware Supreme Court. Instead, she filed the pending motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
(3) The matter was referred to the Court Commissioner for findings of fact and recommendation pursuant to 10 Del. C. § 512(b) and Superior Court Civil Rule 132. The Commissioner has filed a Report and Recommendation recommending that the Court deny defendant's motion for postconviction relief. No objections to the Report have been filed.
NOW, THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated June 12, 2002,
IT IS ORDERED that the thoughtful and well-reasoned Commissioner's Report and Recommendation is adopted by the Court and defendant's Motion for Postconviction Relief is denied.
COMMISSIONER'S REPORT AND RECOMMENDATION
FREUD, Commissioner June 12, 2002
The defendant Kathy M. Smith, ("Smith") pled guilty on October 25, 2001 to one count of Attempted Robbery in the Second Degree, 11 Del. C. § 531. A presentence office investigation was ordered. Smith was subsequently sentenced on December 27, 2001 to five years incarceration, suspended for probation upon Smith's successful completion of the "Village Program." Smith did not appeal her conviction State v. Smith ID No. 0107018103 June 12, 2002 or sentence to the State Supreme Court, instead she filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In her motion, Smith alleges four grounds for relief:
Ground One: Ineffective Defense. Didn't investigate my witnesses or she didn't bring up the my hx (sic) of migrane a medical opinion. Didn't check on my hospital records. On my PSI report the above things I had proof of my being at KGH on 12/18/01 the meds given with the IU fluids is what made my urine luated (sic). I also had to drink plenty of fluids for 48 hours for doctor in ER.
Ground Two: Refusal of Public Defender's office to give me another attorney. The public defender had a serious attitude toward defending me. Always late never returned phone calls.
Ground Three: Refuse to contact my witness. Public Defender had witnesses name address didn't get a hold of any of them.
Ground Four: Public Defender told me to remain silent that it wasn't my time to talk to defened (sic) myself. My time never came.
Under Delaware Law this Court must first determine whether Smith has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of her postconviction relief claim. This is Smith's first motion for postconviction and it was filed within three years of her conviction becoming final, so the requirements of Rule 61(i) 1) — requiring filing within three years — and 2) — requiring that all grounds for relief be presented in the initial Rule 61 motion — are met. None of Smith'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. All of Smith's claims are to some extent based on ineffective assistance of counsel, therefore, she has alleged cause for her failure to have raised these issues earlier. Rule 61(i)(3) does not bar relief as to Smith's claims at this point should Smith successfully demonstrate that her counsel was ineffective and that she was prejudiced by counsel's actions.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
To prevail on her claims of ineffective assistance of counsel Smith must meet the two prong test of Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires that 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, she would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been her acquittal. 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) ("Strickland"); Larson v. State, Del. Supr., No. 200, 1994, Hartnett, J. (June 23, 1995) (ORDER); Albury v. State, Del. Supr., 551 A.2d 53 (1988), Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); Strickland, 466 U.S. at 688, 694; Accord Larson v. State, supra at 3-4; Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Skinner v. State, 607 A.2d at 1172; Albury v. State, 551 A.2d at 58.
Younger v. State, 580 A.2d at 556; Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER).
Albury v. State, 551 A.2d at 59 (citing Strickland, 466 U.S. 689); see also Larson v. State, supra at 4; Flamer v. State, 585 A.2d 736 at 753 (1990).
Id. at 754.
Strickland, 466 U.S. at 639.
Following a complete review of the record in this matter, it is abundantly clear that Smith has failed to allege any facts sufficient to substantiate her claims that her attorney was ineffective. I find counsel's affidavit, in conjunction with the record, more credible than Smith's contention that her counsel's representation was ineffective. Smith and her attorney discussed the case prior to the entry of the plea. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Smith entered her guilty plea she stated she was satisfied with defense counsel's performance. She is bound by her statement unless she presents clear and convincing evidence to the contrary. Consequently, Smith has failed to establish that her counsel's representation was ineffective under the Strickland test.
Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Mapps v. State, Del. Supr., No. 3, 1994, Holland, J. (March 17, 1994) (ORDER) (citing Sullivan v. State, Del. Supr., 636 A.2d 931, 937-938 (1994)).
Even assuming, arguendo that counsel's representation of Smith was somehow deficient, Smith 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. Smith simply asserts that her counsel didn't do enough in an attempt to show prejudice. Smith does not suggest what more counsel could have done. This statement is insufficient to establish prejudice.
Larson v. State, supra at 5; Younger v. State, 580 A.2d at 556.
To the extent Smith alleges her plea was involuntary, however, the record clearly contradicts this allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary the Court looks to the plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty plea hearing, the Court asked Smith whether she understood the nature of the charges, the consequences of her pleading guilty and whether she was voluntarily pleading guilty. The Court asked Smith if she understood she would waive her constitutional rights if she pled guilty, if she understood each of the constitutional rights listed on the guilty plea form and whether she gave truthful answers to all the questions on the form. The Court asked Smith if she had discussed the guilty plea and its consequences fully with her attorney. The Court asked Smith if she was giving the plea of her own free will because the State had sufficient evidence to convict her. The Court also asked Smith if she was satisfied with her counsel's representation. Smith answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Smith claimed not to remember the crime. Due to a store video of Smith committing the attempted robbery, Smith agreed the State had sufficient evidence against her and was allowed to enter a Robinson plea.
Transcript of plea colloquy at 2-9.
Furthermore, prior to entering her guilty plea, Smith filled out a Guilty Plea Form in her own handwriting. Smith wrote that she understood the constitutional rights she was relinquishing by pleading guilty and that she freely and voluntarily decided to plead guilty to the charge listed in the plea agreement. Smith is bound by the statements she made on the signed Guilty Plea Form unless she proves otherwise by clear and convincing evidence. I confidently find that Smith entered her guilty plea knowingly and voluntarily and that her grounds for relief are completely meritless.
Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994) (ORDER); Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (January 4, 1990) (ORDER). See also Sullivan v. State, Del. Supr., 636 A.2d 931, 938 (1994) (ruling the fact that defendant filled out Truth In Sentencing Guilty Plea Form in defendant's own handwriting supported the Superior Court's conclusion that defendant's decision to plead guilty was knowing and voluntary).
I find that Smith's counsel represented her in a competent and effective manner and that Smith has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Smith's guilty plea was entered knowingly and voluntarily. Consequently, I recommend that the Court deny Smith's motion for postconviction relief as procedurally barred.
COMMISSIONER'S REPORT AND RECOMMENDATION
FREUD, Commissioner June 12, 2002
The defendant Kathy M. Smith, ("Smith") pled guilty on October 25, 2001 to one count of Attempted Robbery in the Second Degree, 11 Del. C. § 531. A presentence office investigation was ordered. Smith was subsequently sentenced on December 27, 2001 to five years incarceration, suspended for probation upon Smith's successful completion of the "Village Program." Smith did not appeal her conviction State v. Smith ID No. 0107018103 June 12, 2002 or sentence to the State Supreme Court, instead she filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In her motion, Smith alleges four grounds for relief:
Ground One: Ineffective Defense. Didn't investigate my witnesses or she didn't bring up the my hx (sic) of migrane a medical opinion. Didn't check on my hospital records. On my PSI report the above things I had proof of my being at KGH on 12/18/01 the meds given with the IU fluids is what made my urine luated (sic). I also had to drink plenty of fluids for 48 hours for doctor in ER.
Ground Two: Refusal of Public Defender's office to give me another attorney. The public defender had a serious attitude toward defending me. Always late never returned phone calls.
Ground Three: Refuse to contact my witness. Public Defender had witnesses name address didn't get a hold of any of them.
Ground Four: Public Defender told me to remain silent that it wasn't my time to talk to defened (sic) myself. My time never came.
Under Delaware Law this Court must first determine whether Smith has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of her postconviction relief claim. This is Smith's first motion for postconviction and it was filed within three years of her conviction becoming final, so the requirements of Rule 61(i) 1) — requiring filing within three years — and 2) — requiring that all grounds for relief be presented in the initial Rule 61 motion — are met. None of Smith'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. All of Smith's claims are to some extent based on ineffective assistance of counsel, therefore, she has alleged cause for her failure to have raised these issues earlier. Rule 61(i)(3) does not bar relief as to Smith's claims at this point should Smith successfully demonstrate that her counsel was ineffective and that she was prejudiced by counsel's actions.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
To prevail on her claims of ineffective assistance of counsel Smith must meet the two prong test of Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires that 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, she would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been her acquittal. 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) ("Strickland"); Larson v. State, Del. Supr., No. 200, 1994, Hartnett, J. (June 23, 1995) (ORDER); Albury v. State, Del. Supr., 551 A.2d 53 (1988), Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); Strickland, 466 U.S. at 688, 694; Accord Larson v. State, supra at 3-4; Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Skinner v. State, 607 A.2d at 1172; Albury v. State, 551 A.2d at 58.
Younger v. State, 580 A.2d at 556; Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER).
Albury v. State, 551 A.2d at 59 (citing Strickland, 466 U.S. 689); see also Larson v. State, supra at 4; Flamer v. State, 585 A.2d 736 at 753 (1990).
Id. at 754.
Strickland, 466 U.S. at 639.
Following a complete review of the record in this matter, it is abundantly clear that Smith has failed to allege any facts sufficient to substantiate her claims that her attorney was ineffective. I find counsel's affidavit, in conjunction with the record, more credible than Smith's contention that her counsel's representation was ineffective. Smith and her attorney discussed the case prior to the entry of the plea. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Smith entered her guilty plea she stated she was satisfied with defense counsel's performance. She is bound by her statement unless she presents clear and convincing evidence to the contrary. Consequently, Smith has failed to establish that her counsel's representation was ineffective under the Strickland test.
Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Mapps v. State, Del. Supr., No. 3, 1994, Holland, J. (March 17, 1994) (ORDER) (citing Sullivan v. State, Del. Supr., 636 A.2d 931, 937-938 (1994)).
Even assuming, arguendo that counsel's representation of Smith was somehow deficient, Smith 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. Smith simply asserts that her counsel didn't do enough in an attempt to show prejudice. Smith does not suggest what more counsel could have done. This statement is insufficient to establish prejudice.
Larson v. State, supra at 5; Younger v. State, 580 A.2d at 556.
To the extent Smith alleges her plea was involuntary, however, the record clearly contradicts this allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary the Court looks to the plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty plea hearing, the Court asked Smith whether she understood the nature of the charges, the consequences of her pleading guilty and whether she was voluntarily pleading guilty. The Court asked Smith if she understood she would waive her constitutional rights if she pled guilty, if she understood each of the constitutional rights listed on the guilty plea form and whether she gave truthful answers to all the questions on the form. The Court asked Smith if she had discussed the guilty plea and its consequences fully with her attorney. The Court asked Smith if she was giving the plea of her own free will because the State had sufficient evidence to convict her. The Court also asked Smith if she was satisfied with her counsel's representation. Smith answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Smith claimed not to remember the crime. Due to a store video of Smith committing the attempted robbery, Smith agreed the State had sufficient evidence against her and was allowed to enter a Robinson plea.
Transcript of plea colloquy at 2-9.
Furthermore, prior to entering her guilty plea, Smith filled out a Guilty Plea Form in her own handwriting. Smith wrote that she understood the constitutional rights she was relinquishing by pleading guilty and that she freely and voluntarily decided to plead guilty to the charge listed in the plea agreement. Smith is bound by the statements she made on the signed Guilty Plea Form unless she proves otherwise by clear and convincing evidence. I confidently find that Smith entered her guilty plea knowingly and voluntarily and that her grounds for relief are completely meritless.
Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994) (ORDER); Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (January 4, 1990) (ORDER). See also Sullivan v. State, Del. Supr., 636 A.2d 931, 938 (1994) (ruling the fact that defendant filled out Truth In Sentencing Guilty Plea Form in defendant's own handwriting supported the Superior Court's conclusion that defendant's decision to plead guilty was knowing and voluntary).
I find that Smith's counsel represented her in a competent and effective manner and that Smith has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Smith's guilty plea was entered knowingly and voluntarily. Consequently, I recommend that the Court deny Smith's motion for postconviction relief as procedurally barred.