Opinion
Cr.A. No. IK97-03-0024-R1
Submitted: April 16, 2001
Decided: April 23, 2001
Stephen R. Welch, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
James E. Liguori, Esq., Liguori, Morris Redding, for the Defendant.
ORDER
Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendations, the defendant's objections to the Commissioner's Report and Recommendations, the State's response, the Commissioner's Supplemental Report and Recommendations, and the record in this case, it appears that:
(1) The defendant, Edward D. Sturgis ("Sturgis") pled guilty on the day he was scheduled for trial, March 17, 1997, to one count of Attempted Murder in the First Degree, 11 Del. C. § 531 pursuant to a Rule 11(e)(i)(C) plea agreement. The Court then followed the Rule 11 plea agreement and sentenced Sturgis to fifteen years incarceration followed by probation. Sturgis did not appeal his conviction or sentence to the Delaware Supreme Court, instead he filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61.
(2) The Court referred this motion to Superior Court Commissioner Andrea Maybee Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner filed a Report and Recommendations concluding that the motion for postconviction relief should be denied.
(3) Sturgis filed written objections to the Commissioner's Report and Recommendations. The State filed a written response to the objections. After considering the objections, the Court recommitted the matter to the Commissioner pursuant to Superior Court Criminal Rule 62(a)(5)(iv). A hearing was held on March 2, 2001. On March 26, 2001, the Commissioner submitted a supplemental report and recommendations which continues to recommend that the motion for postconviction relief should be denied. No written objections 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 Recommendations dated September 26, 2000 and the Commissioner's Supplemental Report and Recommendations dated March 26, 2001,
IT IS ORDERED that:
(A) The well-reasoned Commissioner's Report and Supplemental Report and Recommendations are adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DENIED.
COMMISSIONER'S SUPPLEMENTAL REPORT AND RECOMMENDATIONS
Upon Consideration of Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Pursuant to the order of President Judge Henry DuPont Ridgely, dated January 29, 2001, a hearing on the instant motion was held on March 2, 2001. At the hearing the State called Detective Kevin Harding of the Dover Police Department. Detective Harding testified concerning his police report and the supplemental reports attached there to. After establishing a basis for the admission of the reports the police reports were admitted with out objection by the defense as State's Exhibit Number 1. Also admitted without objection were copies of the transcript of interviews taken by the police during the investigation. The transcripts were marked as State's Exhibit Number 2.
Following the admission of the two exhibits, defense counsel requested a copy of any notes in the possession of the State. The Court ordered the Deputy Attorney General to obtain copies of the notes and to review them. If the State had any objection to providing the notes to the defense it was to inform the Court. On March 19, 2001 the Court received notification from defense counsel that the State had provided him with copies of the police notes in a letter dated March 16, 2001. Defense counsel requested the notes be made part of the record. This request was approved by the Court on March 17, 2001.
I have reviewed the police notes. The police reports and transcripts were reviewed by me prior to making my initial report and recommendation to the Court. The defense has made no objection to the reports or transcripts and moved the admission of the notes. After careful consideration of all the material in this case my recommendation remains unchanged from my initial report and recommendation. Therefore, I continue to recommend that the Court deny the Defendant's Rule 61 postconviction relief motion for the reasons outlined in my Report dated September 26, 2000.
MAYBEE, Commissioner
The Defendant, Edward D. Sturgis ("Sturgis") pled guilty on the day he was scheduled for trial, March 17, 1997, to one count of Attempted Murder in the First Degree, 11 Del. C. § 636 pursuant to a Rule 11(e)(i)(c) Plea Agreement. The Court then followed the Rule 11 plea agreement and sentenced Sturgis to fifteen years incarceration followed by probation. Sturgis did not appeal his conviction or sentence to the State Supreme Court, instead he filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Sturgis alleges two grounds for relief: 1) that his counsel coerced him into entering the guilty plea; and 2) that his counsel was ineffective because he failed to provide zealous advocacy.
I. FACTS
According to the police reports and the record in this case, Officer James Hosfelt of the Dover Police Department was on duty during the very early morning hours of Thursday, October 31, 1996. Officer Hosfelt was in uniform and seated in his marked police vehicle in the parking lot of the Bay Court Plaza at approximately 1:45 a.m. Officer Hosfelt's attention was drawn to a crowd of people leaving a night club known as Mingles. The officer used a pair of binoculars to observe the crowd more carefully. At first the crowd departed slowly with no problem, however, at approximately 2:00 a.m. the crowd increased. The larger the crowd became the more rowdy it became. Officer Hosfelt saw bottles being thrown and individuals driving recklessly throughout the parking lot. At approximately 2:15 a.m. he noticed a small dark colored vehicle which further investigation revealed to be driven by Sturgis. The small vehicle, a Honda, started to leave the lot at a high rate of speed. The Honda seemed to be racing other cars in the lot.
The Honda was heading north in the parking lot towards the exit when it suddenly stopped behind a small white trailer approximately three hundred feet from Officer Hosfelt. The Officer then observed a black male, later identified as Sturgis, exit the driver's side of the Honda and crouch down with a gun in his hand as if he were waiting to ambush someone. Several vehicles passed by as Sturgis remained crouched down. As soon as a van with two black males in it, later identified as Andre Bordley ("Bordley") and Jerome Sudler ("Sudler") drove by Sturgis, he began shooting at it. Officer Hosfelt estimated that Sturgis fired at least ten shots directly at the van and its occupants.
After Sturgis had fired approximately six shots, a second black male, later identified as Christopher Glover ("Glover"), got out of the vehicle and also began firing at the van. Although Glover did not fire as many bullets at the van, he was the last to shoot. After they stopped firing, Sturgis and Glover got back into the Honda. Sturgis was the driver and proceeded to flee the scene. By this time, Officer Hosfelt had notified the Dover Police Communications Center of the ambush and proceeded to follow the Honda. Sturgis, Glover and the other occupant of the Honda, later identified as Donald Hill ("Hill"), appeared to be unaware of Officer Hosfelt's presence behind them until he activated his overhead emergency lights and horn. As soon as Sturgis saw he was being followed by the police, he sped away, eventually driving through a field and another parking lot. During the chase, Sturgis drove the Honda at speeds in excess of eighty miles per hour. At one point, Sturgis nearly collided with another police vehicle which had joined the pursuit. Eventually, Sturgis stopped the Honda just before he was to hit a trailer near the entrance to the Oak Grove Mobile Home Park. Officer Hosfelt saw Sturgis and the others exit the Honda and start to run into a wooded area. Hosfelt and several other officers took off in foot pursuit. After a chase and a brief altercation, Sturgis was apprehended. Glover was apprehended by officers nearby using a K-9. Sturgis was searched and two bags of marijuana was found on him weighing approximately 4.0 grams. More marijuana was found in the Honda. Hill was apprehended at a later time.
In addition to Officer Hosfelt's eyewitness account of the crime, both victims, identified Sturgis as being the initial shooter and Glover as the second. During the shooting, Bordley was struck by a nine millimeter bullet and critically wounded. Fortunately, Bordley was treated quicky at Kent General Hospital and survived the gunshot wound. Numerous bullet holes and casing were found in the van and in the parking lot. The casing and bullets found were identified as coming from a 9 mm Glock semi automatic pistol and a 22 caliber Ruger semi automatic pistol. Both weapons were recovered by the police after being thrown out of the Honda during the chase. The FBI later corresponded the bullets to the two weapons. A bullet from the Glock was recovered during surgery, from Bordley's body.
During interviews with the police, Glover and Hill both stated that Sturgis was the first person shooting at the van. Additionally, Sturgis himself admitted to the police that he shot at the van. At Glover's trial, Sturgis again confessed, while under oath, to firing at the van. All in all, Officer Hosfelt, Bordley, Sudler, Glover, Hill and Sturgis himself, stated that Sturgis intentionally fired multiple bullets at the van as it was driving past.
Sturgis was charged with two counts of Attempted Murder in the First Degree, 11 Del. C. § 636; two counts of Possession of a Firearm During the Commission of a Felony, 11 Del. C. § 1447; one count of Conspiracy in the First Degree, 11 Del. C. § 513; two counts of Possession of a Firearm by a Person Prohibited, 11 Del. C. § 1448; one count of Resisting Arrest, 11 Del. C. § 1257; and one count of Possession of Marijuana, 16 Del. C. § 4754 (b). Due to his prior criminal record, Sturgis faced between 36 years mandatory and life in prison if convicted of the offenses charged.
Sturgis was scheduled for a preliminary hearing on November 20, 1996. The hearing was continued until December 6, 1996 because of a conflict of interest between Sturgis and his co-defendants which required conflict counsel to be appointed to represent Sturgis. During the delay between the initially scheduled hearing and the rescheduled hearing, the Kent County Grand Jury met and indicted Sturgis on all of the charges he had been arrested for on December 2, 1996. Three days after the indictment, the Court appointed Edward Gill, Esq. ("Gill") to represent Sturgis. Gill promptly filed discovery requests on the State and met with Sturgis' mother and girlfriend to discuss the case.
Gill's associate, Theras Hayes, Esq. ("Hayes") met with Sturgis at the Delaware Correctional Center ("DCC") in early December to get information concerning the case from Sturgis. At case review on December 17, 1996, Gill met with Sturgis to discuss the facts of the case and their options given the case against Sturgis the State intended to present. Gill and Sturgis also discussed Sturgis' background and extensive criminal history. Additionally, Gill filed a motion for "Brady" material and reviewed the discovery provided by the State. Gill was particularly worried about how they would respond to the overwhelming evidence against Sturgis including his confession and the testimony of his co-defendants, not to mention the police officer's eye witness account and the victim's identification.
Gill met with Sturgis again on February 20, 1997 for a second case review. At this meeting the two discussed the State's plea offer to allow Sturgis to plead guilty to only one count of Attempted Murder. It was not clear if the State offered to recommend that Sturgis only serve the fifteen years minimum mandatory sentence on February 20th or intended to leave the length of the sentence to the Judge's discretion. It was, however, clear that Sturgis was offered a plea to only Attempted Murder, which carried a fifteen year minimum sentence on February 20, 1997. Gill and Sturgis met again at the final case review on March 10, 1997. Again the State offered a plea to Attempted Murder First Degree with a sentence between fifteen years, minimum mandatory and life. Gill tried to get the State to make a better offer to Sturgis. Sturgis was unwilling to accept the plea offer on the 10th, Gill filed a Motion to Suppress Sturgis' confession during this time as well.
At the pretrial conference Gill informed the Court that he was scheduled to be the moderator at a Continuing Legal Education ("CLE") Seminar the morning of the second day of trial. Gill requested that the trial begin after lunch that day so he could attend the seminar. The Judge reserved his decision until the day of trial. The day the trial was set to begin, March 17, 1997, Gill again tried to get the State to make a better plea offer. He was apparently successful and on the morning of trial Sturgis was offered a Rule 11(e)(i)(c) plea to the minimum mandatory sentence of 15 years in prison on one count of Attempted Murder. Essentially, Sturgis was offered the same plea he had been offered in February and at the final case review except that the State agreed to limit Sturgis' potential jail time to the fifteen years minimum mandatory.
Sturgis debated the offer. According to his co-defendant's attorney and a prison guard, Sturgis seemed, not surprisingly, very upset about the prospect of having to face fifteen years incarceration. Gill advised his client that, while the plea offer was not the best, it could be that under the circumstances it was worth considering. Sturgis' mother either asked to speak with her son or agreed to speak with him at Gill's request. A meeting was arranged with the assistance of the Department of Corrections. Following a lengthy and tearful meeting between Sturgis, his mother and Gill, Sturgis decided to accept the State's plea offer.
Sturgis was sworn under oath and proceeded to tell the court: that he was in fact guilty of Attempted Murder in the first degree; that he was aware he faced at least fifteen years incarceration as a minimum mandatory; that no one had forced him into pleading guilty; and that he was satisfied that Gill had done all he could do to help him. The Court accepted the plea and the Rule 11(e)(i)(c) plea agreement and sentenced Sturgis to fifteen years incarceration. Sturgis, as noted, did not appeal his conviction or sentence.
Sturgis filed the pending motion for postconviction relief. In the motion Sturgis claims he was forced into pleading guilty by Gill and that Gill was unprepared to go to trial, in part because of the CLE Seminar, and therefore unduly influenced Sturgis to accept the plea against his will. In support of the motion, Sturgis filed several affidavits which indicated that Gill was unprepared for trial. Specifically the affidavits of Sturgis, his mother and a prison guard, Terry Jeliffe ("Jeliffe"), all stated that Gill indicated on the morning of trial that he was not prepared. For this reason a hearing on the motion was held.
At the hearing, Sturgis called his co-defendant's attorney, Darryl Fountain, Esq. ("Fountain"), to the stand. Fountain explained that he had represented Christopher Glover. Fountain recalled speaking with Gill briefly prior to the date of the defendant's trial. Fountain testified that he and Gill never discussed a joint trial strategy. Fountain recalled Gill asking the trial judge for a break in the trial for March 19, 1997 because Gill had been scheduled to act as a moderator in a CLE seminar. Prior to the trial, the State offered both defendants plea offers. Fountain and Gill went to speak with their respective clients concerning the offers. It was Fountain's impression that Sturgis was very agonized about the plea offer from the State to fifteen years incarceration. According to Fountain, Sturgis appeared "really tortured" about the prospect of fifteen years. Fountain recalled Sturgis being reticent about the plea, but feeling as though any outcome from a trial would be worse. Fountain was not present when Sturgis' mother spoke to him.
Fountain felt that Gill did not want to go to trial, however, he had no idea how prepared or unprepared Gill may have been. Fountain also testified that given Sturgis' prior record and the fact that Sturgis was facing between 36 years to life imprison the offer of 15 years was fair. Finally, Fountain testified that the State's case against Sturgis was strong given Sturgis' confession and in light of his subsequent admission to firing shots at the victims during Glover's trial.
At the hearing, Sturgis also called Jeliffe. Jeliffe had been present during the conversation between Gill, Sturgis and Sturgis' mother. Jeliffe noted that Sturgis was unusually emotional and did not want to take the plea offer. Jeliffe also recalled both Mrs. Sturgis and Gill trying to convince Sturgis to take the plea offer. Contrary to his original affidavit, Jeliffe testified that he never heard Gill state that he was unprepared to go to trial. It did appear, however, to Jeliffe that Gill did not want to go to trial. Jeliffe recalled the total conversation as lasting approximately twenty minutes around lunch time.
Next Gill took the stand. Gill testified that he spent a good deal of time reviewing the evidence, filing motions, discussing the case with the prosecutor and preparing for trial. He was surprised when Sturgis accepted the State's plea offer on the morning of trial. Gill had advised Sturgis to take the plea, not withstanding his opinion that the State was being to tough in only offering an Attempted Murder plea. Gill testified he ultimately recommended the plea because of the overwhelming evidence against Sturgis and his conviction that Sturgis would be "slaughtered" at trial and wind up spending even more time in jail. Gill believed and so advised Sturgis that the plea was a better deal than anything Sturgis could hope to obtain by going to trial.
According to Gill, Mrs. Sturgis asked to speak with her son on the morning of trial. Sturgis also wished to speak with his mother about the plea offer. Gill adamantly testified that he never told anyone that he was "unprepared" for trial, in fact, he stated he was fully prepared for trial and had planned to focus the defense on Sturgis' state of mind, i.e. not intending to kill the victims when he crouched down and then fired multiple times at the victims as they drove by. Gill conceded that he was not thrilled with the various options presented to Sturgis and that he certainly didn't want to go to trial because he foresaw only bad results for Sturgis given the evidence, but was prepared to defend Sturgis if he had rejected the plea. Finally, Gill stated he never told Sturgis that he would be released in twelve and half years.
Mrs. Sturgis also testified. She stated that Gill and Hayes kept putting Sturgis off. According to Mrs. Sturgis, Gill asked her to speak with Sturgis on the morning of the trial in order to "talk [Sturgis] into taking the plea." She stated that Sturgis didn't want to take the plea, but that she told him to and in essence talked him into accepting the plea against his wishes. She further recalled Gill telling her he wasn't prepared for trial. Mrs. Sturgis also claimed that Gill told them that Sturgis would get out of jail in twelve and half years. Under cross examination, Mrs. Sturgis admitted that she did not know what witnesses, not subpoenaed by Gill, would have testified to.
II. PROCEDURAL CONSIDERATIONS
Under Delaware Law this Court must first determine whether Sturgis has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of his postconviction relief claim. This is Sturgis' first motion for postconviction and it was filed within three years of his 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 Sturgis' 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. Sturgis' two contentions are based on ineffective assistance of counsel, therefore, he has alleged cause for his failure to have raised these issues earlier. Rule 61(i)(3) does not bar relief as to those claims at this point should Sturgis demonstrate that his counsel was, in fact, ineffective and that he 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).
III. ANALYSIS
Sturgis' two grounds for relief are that his counsel was not prepared to go to trial and that counsel coerced Sturgis into pleading guilty. Both of these contentions raise the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel Sturgis 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, 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. 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. (October 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 clear that Sturgis has failed to substantiate his claim that his attorney was ineffective. I find counsel's testimony, in conjunction with the record, more credible than Sturgis' contention that he did not knowingly enter his plea or that his counsel was unprepared to go to trial. Sturgis was facing trial on numerous charges and risked a substantial period of incarceration. Sturgis admitted on several occasions to firing a weapon at the victim. A police officer, both of Sturgis' co-defendants and the two victims also all stated to the police that Sturgis had fired at the victims. The case against Sturgis was very, very strong indeed. Sturgis' counsel was able to negotiate a plea bargain with the State to substantially limit Sturgis' period of incarceration. Sturgis and his attorney discussed the case several times prior to the entry of the plea. The plea bargain was clearly advantageous to Sturgis. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Sturgis entered his guilty plea he stated he was satisfied with defense counsel's performance. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Sturgis has failed to establish that his counsel's representation was ineffective under the Strickland test.
Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (October 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 Sturgis was somehow deficient, Sturgis 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. Sturgis asserts that his counsel coerced him into pleading and that he would not have plead otherwise. Sturgis, however, does not suggest what more counsel could have done. This statement is insufficient to establish prejudice. Sturgis claims that he never intended to murder Bordley, however, given the substantial evidence against him it is extremely unlikely he would have been acquitted. Sturgis has failed to demonstrate any prejudice stemming from counsel's representation.
Larson v. State, supra at 5; Younger v. State, 580 A.2d at 556.
To the extent Sturgis alleges his plea was involuntary, the record clearly contradicts Sturgis' 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 Sturgis whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Sturgis if he understood he would waive his constitutional rights if he pled guilty, if he understood each of the constitutional rights listed on the guilty plea form and whether he gave truthful answers to all the questions on the form. The Court asked Sturgis if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Sturgis if he was giving the plea of his own free will because he was in fact guilty. The Court asked Sturgis if he understood the maximum sentence he could receive by pleading guilty was sixty years incarceration. The Court also asked Sturgis if he was satisfied with his counsel's representation. Finally, the Court asked Sturgis if he was in fact, guilty of the charge. Sturgis answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of Plea Colloquy at 3-6.
Furthermore, prior to entering his guilty plea, Sturgis filled out a Guilty Plea Form in his own handwriting. Sturgis wrote that he understood the constitutional rights he was relinquishing by pleading guilty and that he freely and voluntarily decided to plead guilty to the charge listed in the plea agreement. Sturgis 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 Sturgis entered his guilty plea knowingly and voluntarily and that this ground for relief is 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).
IV. CONCLUSION
I find that Sturgis' counsel represented him in a competent and effective manner and that Sturgis has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Sturgis' guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Sturgis' motion for postconviction relief.