Opinion
No. 9510020980, 9604014614, 9510017699.
Date Submitted: November 10, 1999.
Date Decided: March 23, 2000.
Cr. A. No. IN95111520R1, IN9511152, IN9650447R1, IN96020376R1, IN96020377R1.
Upon Defendant's Motion for Post-Conviction Relief DENIED.
Diane M. Coffey, State of Delaware Department of Justice, Wilmington, Delaware, for the State of Delaware.
Wayne C. Thomas, pro Se.
MEMORANDUM OPINION
Defendant Wayne C. Thomas ("Defendant") has filed a pro se motion for post-conviction relief pursuant to Superior Court Criminal Rule 61, seeking relief from judgment of this Court. For the following reasons, the Motion is DENIED.
BACKGROUND
On October 20, 1995, after Defendant was arrested by the Wilmington Police for Possession With Intent to Deliver Cocaine, Defendant requested the Wilmington Police contact Detective Mark Hawk of the Delaware State Police. Defendant wanted to advise the State Police of the perpetrator of the robberies at the Talley Ho Motor Lodge and the White Glove Car Wash. After Defendant had been advised of his rights, he told the police that a Booker Martin had committed the robberies but denied that he was involved. On October 23, 1995, a victim of one of the robberies revealed the nickname of Defendant as a perpetrator and the defendant was identified in a photo lineup by a witness a few days later. On January 18, 1996, Defendant spoke to Det. Hawk again and after again being advised of his rights, Defendant confessed to Det. Hawk that he was the driver in the Talley Ho robbery, that he drove Booker Martin to the location, saw Martin go into the motel with the gun and knew he was going to rob the motel. Defendant confessed that he waited for Martin to return and Martin bought him a pair of boots with the proceeds.
Defendant was indicted in four separate indictments for four separate incidents. Two such incidents involved the robbery of the Talley Ho Motor Lodge and the White Glove Car Wash. Defendant was charged with: two counts of Robbery First Degree; one count of Attempted Robbery Second Degree; two counts of Burglary Second Degree; three counts of Possession of a Firearm During the Commission of a Felony; two counts of Possession of a Deadly Weapon By a Person Prohibited; one count of Conspiracy Second Degree, and Aggravated Menacing. Defendant was also charged with Possession With Intent to Deliver Cocaine, and in 1996, Defendant was charged with Assault in a Detention Facility which occurred while Defendant was awaiting resolution of the open charges.
Defendant pled guilty to Robbery First Degree, Possession of a Firearm During the Commission of a Felony (2 counts); Attempted Robbery Second Degree; Possession of Cocaine and Assault Second Degree. Defendant was sentenced on March 14, 1997 to a minimum mandatory eight years incarceration followed by various levels of probation. Defendant did not appeal to the Delaware Supreme Court.
Defendant filed this motion on April 27, 1999. Subsequently, this Court ordered Defendant's prior counsel and the State to file affidavits and legal memorandum, respectively, in response to Defendant's motion. Defendant's prior counsel filed affidavits on June 9, 1999, July 22, 1999, and July 29, 1999. The Department of Justice filed a legal memorandum on August 18, 1999. Defendant filed a response on November 9, 1999.
This is the Court's decision on Defendant's Motion for Post-conviction Relief
DISCUSSION 1. Defendant's Grounds for Relief
First, Defendant asserts that his guilty plea was not made intelligently. Defendant claims that his plea was made without the advice of his attorney as to all the direct and indirect consequences of a guilty plea. Second, Defendant asserts an ineffective assistance of counsel claim on the grounds that his court-appointed attorney represented a co-defendant while at the same time advising Defendant to plead guilty. Third, Defendant asserts that the Court abused its discretion by allowing the attorney to continue representation of Defendant when there was a conflict of interest. Defendant also asserts that because of mental health problems, he could not understand the Court and therefore was not informed of the true nature of the charges against him. Fourth, Defendant asserts that his confession was coerced because he repeatedly asked for a lawyer to be present during the interview, and was not given an opportunity to sleep or use the restroom facilities for over a thousand miles during his extradition.
2. Plea Entered Knowingly and Intelligently
Defendant's first allegation is that his guilty plea was not knowingly and intelligently made. There is no evidence of this and the Court concludes, as it did at the plea colloquy, that Defendant's plea was knowingly, intelligently, and voluntarily entered. The Court notes Defendant's mental health problems but does not find that this affected his guilty plea.
Furthermore, the Court finds that Defendant's claim that his guilty plea was not made intelligently is in fact an ineffective assistance of counsel claim, as he adds that the plea was without the advice of his attorney as to all the direct and indirect consequences of a guilty plea. Additionally, Defendant's third allegation, that because of his mental health problems, he could not understand the Court and therefore was not informed of the true nature of the charges against him, is unfounded. The Court at the time of the plea colloquy found Defendant to be entering his plea knowingly, intelligently and voluntarily, and that he understood the charges against him.
3. Ineffective Assistance of Counsel
Defendant argues that his attorney had a conflict of interest because counsel was representing both the defendant and his co-defendant. Defendant contends that because of this conflict of interest his attorney "negatively" influenced him to plead guilty. Summarily, he contends that his counsel's ineffective performance and conflict of interest resulted in Defendant receiving the "wrong advise to plea [sic] guilty to charges that wasn't [sic] in petitioner's best interest."
The Delaware Supreme Court has held that in reviewing motions for post-conviction relief, this Court must first determine whether a defendant's claims are procedurally barred prior to considering them on their merits. There are no procedural bars under Rule 61 to Defendant's claim of ineffective assistance of counsel. Because a claim of ineffective assistance of counsel cannot be raised for the first time on direct appeal, such a claim is properly brought in a motion for post-conviction relief pursuant to Rule 61.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Flamer v. State, Del. Supr., 585 A.2d 736, 747 (1990).
See State v. Mason, Del. Super., Cr. A. No. IN93-02-0279-R1, Barron, J. (Apr. 11, 1996) (Mem. Op.) at 6 (citing Supr. Ct. R. 8; Wright v. State, Del. Supr., 513 A.2d 1310, 1315 (1986); Duross v. State, Del. Supr., 494 A.2d 1265, 1267 (1985)); appeal docketed, Del. Supr., No. 203, 1996 (May 6, 1996).
In order to prevail on a claim of ineffective assistance of counsel, Defendant must satisfy the two-part test set forth in Strickland v. Washington. Thus, Defendant must first show that his attorney's conduct fell below that of reasonable professional standards, and that such conduct caused him actual prejudice.
466 U.S. 668, 687, reh'g denied, 467 U.S. 1267 (1984). See also Albury v. State, Del. Supr., 551 A.2d 53, 58 (1988).
Strickland, 466 U.S. at 687, 688.
Id. at 687, 693.
Under Strickland, Defendant must make concrete allegations of ineffective and unreasonable conduct by his attorney. Conclusory allegations are legally insufficient to substantiate the claim. In addition, a claim of ineffective assistance based solely on counsel's strategic choices made after a thorough investigation, of law and facts is insufficient to prove the claim that counsel's professional performance was ineffective.
Outten v. State, Del. Supr., 720 A.2d 547, (1998); Dawson v. State, Del. Supr., 673 A.2d 1186, 1196; (1996).
Duffy v. State, Del. Supr., No. 529, 1992, Horsey. J. (Jan. 27, 1993).
Strickland v. Washington, 466 U.S. 66 (1984).
In response to Defendant's allegations, Defendant's attorney submitted an affidavit wherein he denied Defendant's claims that the representation failed to comply with the constitutionally prescribed minimal standards for representation. Defense counsel had known the defendant for several years and had represented him in the past, and was aware of Defendant's "family history, criminal history and trust issues dealing with persons of authority. [He] had developed a significant rapport with [the defendant] over several years." Defense counsel recalled that Defendant was aware of the potential conflict of interest if he were to proceed to trial on all charges. Defendant was aware that the State may or may not use the co-defendant's testimony against him at trial and was aware of the ethical conflict which might result in the appointment of another attorney to represent Defendant.
All of Defendant's prior attorneys were required to respond to Defendant's motion although Defendant's allegations were directed specifically at David J.J. Facciolo, Esq. An answer was filed by Martin C. Meltzer, Esq. on June 11, 1999 in which he recalled entering an appearance on behalf of Defendant in February 23, 1996, but filed a Motion to Withdraw on April 2, 1996 upon the demands of the defendant that he no longer act as Defendant's attorney. Mr. Meltzer forwarded the file to the Public Defender's Office and has had no contact with the defendant since April 2, 1996. Lisa M Schwind, Esq. also filed an affidavit in this matter but has no recollection of representing Defendant.
Defense counsel denied Defendant's allegations that he ever threatened Defendant to take a plea. Defense counsel met with Defendant at least twice in the two week period before the entry of the plea and discussed with Defendant his options for several hours. Defense counsel discussed the seriousness and repercussions of a guilty plea, limitations of good time credit opportunities, and the practical inability to seek sentence reduction. Defense counsel filled out the Truth in Sentencing colloquy form with Defendant, and with Defendant's full understanding, intelligence, voluntariness, assent and consent.
As the Strickland test provides, Defendant has the burden of proving that his counsel's conduct fell below the professional standard and that but for that conduct the outcome of the case would have been different. Defendant has failed to rebut the presumption of effective assistance with his general allegations. Defendant first fails to offer any specific evidence in support of his allegations, and second, he fails to demonstrate how they constitute ineffective assistance and resulting prejudice. This does not provide valid grounds for a claim of ineffective assistance of counsel. Because Defendant does not present the Court with any evidence that his counsel's conduct fell below that of reasonable professional standards or that he was prejudiced as a result of his attorney's conduct, his claims must be denied.
See State v. Davis, Del. Super., Cr. A. No. K93-11-0236, Cooch, J. (Mar. 20, 1996) (ORDER) at 4-5; see also Walls v. State, Del. Supr., No. 59, 1995, Holland, J. (Jan. 4, 1996) (ORDER) at 7 ("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.").
4. Coerced Confession
Defendant alleges that his confession was coerced. These allegations concern events preceding the entry of the guilty plea. They must therefore fail because defendant's guilty plea constitutes a wavier of all errors and/or defects occurring before the plea, except lack of subject matter jurisdiction. "When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." The defendant's claim concerning a coerced confession must therefore be denied.There is no indication that Defendant's guilty plea was not knowingly and intelligently entered. This Court concludes, as it did at the plea colloquy, that defendant's plea was knowingly, intelligently, and voluntarily entered. "A defendant who knowingly and intelligently enters a
guilty plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination." Because Defendant's allegations of coerced confession are unfounded, he cannot be afforded relief on these grounds.
State v. Gallo, Del.Super., Cr.A. Nos. IN87-03-0589, 0594, Gebelein, J. (September 2, 1988), citing Boykin v. Alabama, 395 U.S. 238 (1969), and State v. Casto, Del. Supr., 375 A.2d 444, 449-450 (1977); see also Wells v. State, Del.Supr., 396 A.2d 161, 162 (1978).
CONCLUSION.
Defendant's contentions are contrary to the evidence on the record and therefore without merit. He has failed to demonstrate to this Court that his counsel was ineffective under Strickland, and there was no coerced confession. Therefore, Defendant is not entitled to postconviction relief.
For the above stated reasons Defendant's Motion for Post-conviction Relief is DENIED.
IT IS SO ORDERED. ___________________________________ The Honorable Richard S. Gebelein
Orig: Prothonotary
cc: Diane Coffey, Esq., DAG Daniel R. Miller, Esq., DAG David J.J. Facciolo, Esq. Martin C. Meltzer, Esq. Lisa M. Schwind, Esq. Mr. Wayne C. Thomas