Opinion
Cr. I.D. No. 0902021643.
Submitted: June 11, 2010
Decided: June 30, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE DENIED.
Joseph S. Grubb, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Peniqua Wayman, Delores J. Baylor Women's Correctional Institution, New Castle, Delaware, pro se.
ORDER
This 30th day of June, 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Defendant Peniqua Wayman was indicted on charges which occurred on February 24, 2009 of Attempted Robbery First Degree, Possession of a Firearm During the Commission of a Felony and Possession of a Deadly Weapon by a Person Prohibited.
2. Defendant Wayman was born on March 17, 1991. Defendant Wayman turned eighteen years of age less than a month after the offenses for which she was charged. Defendant Wayman was, in fact, eighteen years of age at time of her trial (September 9-10, 2009), and thereafter at the time of her sentencing.
3. The facts giving rise to this action reveal that Defendant Wayman on February 24, 2009, pointed a gun at victim Paul Pgaeremah at an apartment complex in New Castle, Delaware and ordered him to empty his wallet. The victim managed to wrestle the gun away from Defendant and she then ran away.
4. Defense counsel filed a reverse amenability motion seeking to have Defendant's charges adjudicated in Family Court. On August 26, 2009, the Superior Court conducted a reverse amenability hearing and at the conclusion of the hearing, the Superior Court denied the motion.
Superior Court Docket No. 18.
5. A Superior Court jury trial was held on September 9-10, 2009. On September 10, 2009, the jury found Defendant guilty of the charge of Possession of Firearm by a Person Prohibited. The jury was unable to reach a unanimous verdict on the remaining two counts of the indictment, and the trial judge declared a mistrial as to those counts.
6. On November 6, 2009, Defendant was sentenced on the Possession of Firearm by a Person Prohibited conviction to the minimum mandatory six months at Level V.
7. A notice of appeal was timely filed to the Delaware Supreme Court on December 4, 2009.
8. On December 10, 2009, Defendant pled guilty to the lesser-included offense of Attempted Robbery Second Degree and to Possession of a Firearm During the Commission of a Felony. Defendant was immediately sentenced pursuant to the plea agreement to 3 years at Level V minimum mandatory for Possession of a Firearm During the Commission of a Felony and to 2 years at Level V suspended immediately for 2 years at Level III on Attempted Robbery Second Degree.
9. On January 27, 2010, Defendant voluntarily dismissed her appeal to the Delaware Supreme Court.
10. On February 12, 2010, Defendant filed this motion for postconviction relief. Defendant's motion for postconviction relief raises claims concerning Defendant's plea on the charges of Attempted Robbery Second Degree and Possession of Firearm During Commission of a Felony. In the subject motion, Defendant does not appear to challenge her conviction at trial on the charge of Possession of a Firearm by a Person Prohibited.
11. Defendant raises four grounds as the basis for the subject motion for postconviction relief. Defendant raises the following: (1) Emotional Instability; (2) Comprehensive Immaturity; (3) Ineffective Assistance of Counsel; and (4) Unfulfilled Plea Agreement.
12. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
13. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in a prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If a final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61(i)(4).
14. Turning to Defendant's claims, she first contends that she was not an adult at the time of sentencing and therefore was not emotionally capable of understanding the severity of alleged crimes or charges. However, Defendant, born on March 17, 1991, was, in fact, over eighteen years of age at the time of her sentencing on December 10, 2009. Defendant's contention is simply inaccurate.
15. Defendant claims in her second ground that due to her "comprehensive immaturity" she did not comprehend the actions of the court and criminal proceeding and was not appropriately counseled by defense.
16. It is not clear whether Defendant is raising an ineffective assistance of counsel claim. To the extent that Defendant's second claim does not allege an ineffective assistance of counsel contention, it is procedurally barred under Rules 61(i)(3) and (4). Any claims regarding Defendant's maturity are foreclosed by the Superior Court's ruling after the amenability hearing in August 2009. By denying Defendant's request to have her charges heard in Family Court, the Superior Court determined that Defendant was mature enough to be prosecuted in Superior Court. In any case, Defendant did not appeal her convictions or sentences, thus the claims are also subject to the bar of Rule 61(i)(3).
17. To the extent, Defendant's second claim does allege an ineffective assistance of counsel contention, to prevail the defendant must show that: 1) defense counsel's representation fell below an objective standard of reasonableness; and 2) there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate concrete allegations of actual prejudice. There is a strong presumption that counsel's conduct fell within a wide range of reasonable professional assistance. Defendant must also overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
Albury v. State, 551 A.2d 53, 59 (Del. 1988); Salih v. State, 2008 WL 4762323, at *1 (Del. 2008).
Strickland, 466 U.S. at 681.
18. Defendant does not allege what advices she believes were inappropriate or what proceedings she failed to comprehend. Conclusory and unsubstantiated allegations are insufficient to establish a claim of ineffective assistance of counsel.
State v. Brown, 2004 WL 74506, at *2 (Del.Super. 2004).
19. Indeed, defense counsel's conduct does not appear to be deficient in any regard. In preparation for the reverse amenability hearing, defense counsel had Defendant evaluated by a psycho-forensic evaluator (PFE) with the Office of the Public Defender. Defense counsel considered the PFE report, as well as his numerous contacts with Defendant, in concluding that Defendant was competent. Defense counsel felt fully confident after numerous visits with Defendant and a PFE evaluation that Defendant was competent and able to understand the legal proceedings in her case. Defense counsel spoke with Defendant in person and over the phone about twenty times during the course of her case. Defense counsel also had numerous contacts, with Defendant's permission, with both her biological mother and father regarding the procedural and substantive issues of her case.
Affidavit of Ralph D. Wilkinson, IV in response to Defendant's Rule 61 motion, at pgs. 2-3.
20. Moreover, Defendant's own representations to the Superior Court prior to the entry of her guilty plea belie her present contention that she did not understand the proceeding. Before accepting Defendant's plea, on December 10, 2009, the Superior Court confirmed that Defendant reviewed the plea agreement with her counsel and understood what she was agreeing to. Defendant understood she was giving up constitutional rights and civil liberties by entering the plea. Defendant did not have any questions about the plea agreement. Defendant acknowledged that nobody was forcing her to enter the plea. Defendant represented that she was satisfied with her counsel's representation. Defendant further represented that she understood the consequences of what she was doing by entering into the plea. Based on Defendant's representations to the Court, the Court found that Defendant's plea was entered into knowingly, intelligently, and voluntarily.
Plea Colloquy Transcript of December 10, 2009.
Plea Colloquy Transcript of December 10, 2009, at pgs. 6-8.
21. A defendant is bound by her answers on the guilty plea form and by her testimony at the plea colloquy in the absence of clear and convincing evidence to the contrary. The record before the Court, including Defendant Wayman's own statements, establishes that Defendant knowingly, voluntarily and intelligently entered a guilty plea on December 10, 2009.
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3 (Del. Super. 2008).
22. Defendant's present contention, unsubstantiated and conclusory in nature, that she did not comprehend the court proceeding, is unsupported by the record. Indeed, the record directly contradicts Defendant's contention. The record reflects that Defendant expressly acknowledged that she understood the nature of the proceeding and the consequences of her guilty plea.
23. Defendant next makes the conclusory claim that counsel was ineffective because he did not represent Defendant "to the best of his ability, which led to detrimental and substantial bias by prosecutorial members." Defendant's ineffective assistance of counsel contention is devoid of any specificity. It contains no concrete factual allegations, let alone concrete allegations of actual prejudice. Mere allegations of ineffectiveness will not suffice; instead, a defendant must make and substantiate allegations of actual prejudice. Defendant's unsupported, unsubstantiated and conclusory contention is insufficient to establish a claim of ineffective assistance of counsel.
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
24. Moreover, Defendant's representation to the Superior Court that she was satisfied with her counsel's representation belies her present contention that she was not satisfied. Absent clear and convincing evidence to the contrary, Defendant is bound by her representation to the Court during the plea colloquy.
Plea Colloquy Transcript of December 10, 2009, at pg. 8.
25. Finally, in Defendant's fourth claim she alleges that her plea agreement was misleading and not fulfilled. Although Defendant asserts that the docket reveals the misleading nature of her plea agreement, she does not point to anything specific. Defendant does not explain how her plea agreement was unfulfilled. Defendant has failed to show how her counsel misled her. This unsupported, unsubstantiated and conclusory contention is insufficient to establish a legitimate ground for relief.
26. Defense counsel in his Affidavit in response to Defendant's Rule 61 motion advised that it was Defendant that contacted him in December 2009 and told counsel that she wanted to take the plea. Defense counsel spent "an inordinate amount of time discussing the plea" with Defendant. Prior to taking the plea, defense counsel had explained in detail the consequences of the plea.
Affidavit of Ralph D. Wilkinson, IV in response to Defendant's Rule 61 motion, at pgs. 1-3.
27. On the day of the plea, defense counsel was ill. Brad Manning, Esquire, handled the entering of Defendant's plea. Prior to the entry of Defendant's plea, Mr. Manning spent at least an hour going over everything in the case with Defendant which included: all of the police reports, all of counsel's notes from trial, and the PFE reports. The Superior Court then engaged in a colloquy with Defendant that went over the details of the plea. Defendant's unsubstantiated claim that her plea agreement was misleading and not fulfilled fails to state a legitimate basis for relief.
Plea Colloquy Transcript of December 10, 2009, at pg. 3; Affidavit of Ralph D. Wilkinson, IV in response to Defendant's Rule 61 motion, at pgs. 3.
Plea Colloquy Transcript of December 10, 2009, at pg. 3.
28. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances. The defendant bears the burden of proving that she has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. The Court does not find that the "interests of justice" require it to consider the otherwise procedurally barred claims for relief
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.