Opinion
ID No. 0406006921.
Submitted: January 19, 2005.
Decided: April 26, 2005.
Upon Defendant's Motion for Postconviction Relief — Summarily DENIED
Martin B. O'Connor, Deputy Attorney General Michael Heyden, Esquire Jamar W. White, DCC.
ORDER
This is Defendant's motion for postconviction relief under Superior Court Criminal Rule 61. He challenges the guilty plea he entered and the sentence he received on August 29, 2003. Defendant challenges his plea and sentencing for several reasons, including his claims:
• that his guilty plea was involuntary and coerced;
• the prosecution was unfair and manipulative;
• the indictment violated his right against double jeopardy;
• his counsel was ineffective and apathetic;
• the prosecutor's comments at sentencing were improper; and
• the plea agreement was unfulfilled because the sentence exceeded the recommended sentence.
After referral and preliminary consideration under Rule 61(d)(1), it plainly appears from the motion and the record that Defendant is not entitled to relief, and the motion is subject to summary dismissal under Rule 61(d)(4). Defendant's claims were procedurally defaulted under Rule 61(i)(3) and he has failed to show cause for relief from the procedural default and prejudice from violation of his rights. Furthermore, the court observes that Defendant's claims lack substantive merit.
I.
As discussed in great detail in Section II, below, Defendant was given ample opportunity to question his guilty plea during the colloquy with the court, before the plea was accepted. More importantly, after he pleaded guilty and was sentenced, Defendant did not file a direct appeal. Accordingly, the grounds for relief that he is asserting now were not asserted in the proceedings leading to his conviction and they are barred under Rule 61(i)(3), unless Defendant shows cause for relief from the procedural default and prejudice from violation of his rights.
See Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (claims not raised on appeal are waived).
Although one of Defendant's claims is that the prosecution violated his right against double jeopardy, Defendant has not attempted to show cause for why he failed to raise the issue on appeal. Otherwise, he has shown neither cause nor prejudice as to his other claims.
Assuming, without holding, that Defendant's ineffective assistant of counsel claims are not barred, they are either conclusory or, as discussed below, flatly contradicted by the record. Defendant has not come close to establishing either of the two tests for ineffective assistance of counsel under Strickland v. Washington: substandard performance by his trial counsel, and prejudice.
Strickland v. Washington, 466 U.S. 668 (1984).
Defendant did not ask to withdraw his allegedly coerced illegal guilty plea. Even now, Defendant does not specify the relief he seeks. Presumably, Defendant does not want to face trial on all the charges he faced originally, which carry substantially greater penalties than the sentence he received. Reduced to its essence, therefore, Defendant's claim for postconviction relief amounts to his insistence that he should not have received a longer prison sentence than the one called for in his Plea Agreement.
II.
The court also observes that Defendant's claims lack substance. For example, Defendant alleges:
No promise was in print on the plea, but I was told and made to believe by plea judge and counsel that if I took the plea for 10 years, I would get the 10 years. . . . And it is unfair that I was never told by either, that I could get over 10 years for the plea.
Defendant signed a printed, Truth-In-Sentencing Guilty Plea Form stating that, "Defendant was not promised anything that is not stated in his written plea agreement." More importantly, during the guilty-plea colloquy, the court asked Defendant directly, "Has anyone threatened you in any way or promised you anything in order to get you to enter these pleas?" Defendant responded, "No." Then, the court told Defendant:
The State has not said what it is going to recommend. It could recommend anything from 10 years in prison, the minimum mandatory, up to 82 years in prison. But the court is not bound by what the State recommends, and the court is not bound by the guidelines. So, when you are sentenced after a presentence investigation, you could receive anything from, like we have been saying over and over again, 10 years in prison minimum, up to the full 82 years.
The court then asked Defendant, "Do you follow all that?" And Defendant responded, "Yes."
In summary, Defendant's claim that his counsel assured or promised Defendant that he would not receive more than 10 years in prison is belied by the papers Defendant signed and by the things Defendant said to the court. Defendant's claim that the court never told him that he could receive more than 10 years in prison is demonstrably untrue.
* * * * * * * * * * * *
The plea colloquy was substantial. Defendant was concerned when he pleaded guilty, as he is now, about the fact that he was indicted for multiple counts of robbery and possession of a firearm during the commission of a felony, even though all the crimes were part of one, continuous course of conduct. Defendant's position has been that because he pointed the same firearm at four people and took money from them all at the same time, he was subject to prosecution for only one Robbery First Degree or one Possession of a Firearm During the Commission of a Felony.
The court actually discussed this with Defendant during the plea colloquy. The court explained that because Defendant intimidated four people into giving him money, he robbed each of them and, therefore, the State was entitled to charge Defendant with four robbery counts.
By the same token, it is well-established that a defendant who commits an armed robbery while actually in possession of a firearm can be charged with robbery and possession of the firearm. See, e.g., Washington v. State. The point is that under Delaware law, a Defendant is guilty of Robbery First Degree if he merely displays what appears to be a deadly weapon during the course of Robbery Second Degree. To be guilty of first degree robbery, therefore, Defendant does not actually need to possess a deadly weapon, much less a firearm. If, however, Defendant actually possesses a firearm during the commission of a robbery, that additional fact makes Defendant guilty of a weapons charge. And, applying the facts here, Washington v. State explains:
836 A.2d 485 (2003).
[Defendant's] conviction for [4] counts of possession of a firearm during commission of a felony was proper. If [Defendant] properly could be convicted of [4] counts of robbery, then [4] distinct felonies occurred, during each of which [Defendant] possessed a firearm. We therefore uphold those convictions as well.
* * * * * * * * * * * *
Furthermore, Defendant's accusations against his counsel are countered by Defendant's statements during the plea colloquy. There, he told the court that he was satisfied with the work performed by his lawyer. And because Defendant pleaded guilty, his claims about his counsel's failure to file suppression motions and counsel's "apathy" are moot.The court observes from the Affidavit of Probable Cause, that this case involves a bank robbery, at gun-point. As it happened, a probation officer saw Defendant, wearing a ski mask and brandishing a semi-automatic pistol, flee the bank. The probation officer began a pursuit that ended with a Delaware State Police K-9 finding Defendant hiding under bushes. The police recovered Defendant's pistol, a loaded .45 caliber semi-automatic, near where they arrested Defendant. Thus, the weapon was not seized from Defendant's person and there was no reason to suppress it. (Even if a suppression hearing would have proved that the weapon was seized directly from Defendant, the seizure would have been justified as incident to Defendant's arrest.)
Besides that highly incriminating evidence, it appears that Defendant's co-defendant also was arrested shortly after the crimes, and he implicated Defendant. As for Defendant's protests that he was not read his Miranda rights, it appears that Defendant invoked them and refused to speak to the police. No harm. No foul.
Finally, Defendant complains that the State asked for more than a ten year prison sentence, which he claims violated the plea agreement. As discussed above, that probably is untrue. Defendant also complains that the court sentenced him to fourteen years in prison "based on terms unexplained and imperceptive to the defendant." Actually, the fourteen year prison sentence was justified by the crimes' impact on Defendants' victims, one of whom could not return to work because she was so traumatized by Defendant. The aggravated sentence also was amply justified by Defendant's criminal history, which includes a prior robbery at an automated teller machine.
See Rojas v. State, 807 A.2d 1128 (Del. 2002) (prosecutor's recommendations are not binding on the sentencing judge where defendant's sentence is within the statutory limits).
III.
Taking everything into consideration, the court continues to hold that Defendant's accepting the plea agreement was knowing, voluntary, intelligent. It also was prudent. But for the plea agreement, Defendant would likely have gone to trial and he would have wound up in prison for most of the rest of his life. Similarly, the court stands by its earlier decision, which denied Defendant's motion for sentence reduction. Presumably, it was that motion's denial that precipitated this one.
IV.
For the foregoing reasons, Defendant's Motion for Postconviction Relief is summarily DISMISSED. The Prothonotary shall notify Defendant.