Opinion
ID No. 30604628DI.
Submitted: January 5, 2006.
Decided: April 5, 2006.
Upon Consideration of Motion for Postconviction Relief. DENIED.
ORDER
This 5th day of April, 2006, upon Consideration of Defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61, it appears that:
1. Defendant, Benjamin Whiteman ("Whiteman") has filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons set forth below, Whiteman's Motion is DENIED.
2. On April 14, 1987, Whiteman pleaded guilty to Burglary in the Second Degree. The 1987 plea agreement provided that the State would not recommend a life sentence, but the defendant would admit that his three prior felony convictions qualified him as an habitual offender under 11 Del. C. § 4214(a). On June 19, 1987, the date of sentencing, the Superior Court judge signed an order declaring Whiteman to be an habitual offender, as was agreed to in Whiteman's signed plea agreement. The Superior Court declined to sentence Whiteman to life in prison, as was authorized by statute, and instead sentenced him to a 10-year prison term, to be suspended for probation after 3 years, in accordance with the recommendation of the State.
3. On August 17, 1989, Whiteman was convicted by a Superior Court jury of Unlawful Sexual Penetration in the Third Degree and was sentenced to life in prison as an habitual offender, based upon the June 19, 1987 order of the Superior Court. On January 29, 1991, the Supreme Court's mandate issued affirming the convictions.
4. On December 21, 2000, Whiteman filed a Motion for Correction of An Illegal Sentence. Whiteman argued that his 1989 sentence was illegal because there was no prior order from 1987 declaring him to be a habitual offender. On January 16, 2001, Judge Barron denied the motion on two grounds. First, the Court determined that the Court in 1987 had signed an order declaring Whiteman to be a habitual offender. Second, the Court determined that Whiteman's motion was to correct a sentence imposed in an illegal manner and so was time barred under Rule 35(a). Whiteman appealed and, on October 23, 2001, the Supreme Court affirmed this Court's decision.
5. On October 1, 2002, Whiteman filed a second Motion for Correction of an Illegal Sentence. In that motion, Whiteman made the same arguments that he had previously raised in his original motion. Therefore, Judge Goldstein denied the motion on October 25, 2002.
6. Whiteman filed an appeal from the Superior Court's October 25, 2002 order denying his motion for modification of sentence pursuant to Superior Court Criminal Rule 35. In that appeal, Whiteman argued that: 1) he should not have been sentenced as an habitual offender because he never admitted to committing the predicate felonies; and b) his habitual offender status was invalid because it was premised on at least one criminal offense committed in 1976 when he was a juvenile. The Supreme Court found Whiteman's motion unavailing. If considered as a motion to correct sentence, it failed because there was no evidence that Whiteman's sentence was illegal. If considered as a motion for sentence reduction, it was time-barred. Moreover, the court noted that Whiteman's first claim was presented and rejected in his previous motion for modification of sentence and, therefore, was barred as repetitive. Therefore, the Supreme Court affirmed on April 22, 2003. Whiteman eventually appealed the Delaware Supreme Court decision to the United States Supreme Court in which the writ of certiorari was denied in October of 2004.
7. On May 31, 2005, Whiteman filed a "Motion for Correction of an Illegal Sentence under Super. Ct. Crim. R. 35(a)." Whiteman argued that his 1987 guilty plea was invalid because the plea agreement referred to a resisting arrest charge that had been dismissed in November 1986. The Superior Court summarily denied Whiteman's motion on procedural and substantive grounds. The Supreme Court affirmed on September 7, 2005.
8. Whiteman contends that he should be afforded postconviction relief because: 1) he never admitted that he was a habitual offender under 11 Del. C. § 4214(a) as part of any agreement with the State in 1987; 2) his counsel was ineffective; and 3) an illegal hearing was held by a judge in Chancery Court. The merit of each of these claims will be discussed below.
9. Before addressing the merits of any postconviction relief claim, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61. To protect the integrity of Delaware's procedural rules, the Court will not consider the merits of a postconviction claim if defendant's claims are procedurally barred. Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within three years of a final order of conviction; 2) any ground for relief that was not asserted in a prior postconviction proceeding is thereafter barred; 3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules; and 4) any ground for relief must not have been formerly adjudicated in any proceeding leading to the judgment of conviction.
10. First, Whiteman contends that the June 19, 1987, order was illegal because he never admitted that he was an habitual offender. This claim is procedurally barred pursuant to Superior Court Criminal Rules 61(i)(1) and 61(i)(4). Rule 61(i)(1) provides that "[a] motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court." Whiteman's period for filing a Rule 61 Motion has expired. Therefore, his motion filed on December 28, 2006 is time-barred.
Even if Whiteman's motion is not time-barred, it is procedurally barred pursuant to Superior Court Criminal Rule 61(i)(4). Superior Court Criminal Rule 61(i)(4) provides that "Any ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." Interest of justice has been narrowly defined to require the movant to show that the trial court lacked authority to convict or punish. Based upon the record, the Court finds that the issues have been previously litigated and denied in this Court, the Delaware Supreme Court and the United States Supreme Court. This Court is not required to reconsider Whiteman's previously adjudicated claim simply because it is "refined or restated." The Court sees no reason in the interest of justice that Whiteman's ground for relief should be reconsidered.
11. Whiteman next contends that he should be afforded postconviction relief because of ineffective assistance of counsel. Specifically, he alleges that defense counsel rendered ineffective assistance by failing to object at sentencing to the State's introduction of an order declaring him an habitual offender. This claim is not procedurally barred because there is a colorable claim that there was a miscarriage of justice due to a constitutional violation that, inter alia, undermined the fundamental fairness of the proceedings. Nonetheless, the claim must fail under Strickland v. Washington, and Flamer v. State. The test for ineffective assistance of counsel is (1) whether counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability, that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Additionally, there is a strong presumption that legal representation is professionally reasonable. Turning to the first prong, it is evident from the record that defense counsel acted reasonably. In 1982, Whiteman was convicted of Robbery in the Second Degree. In 1983, he was convicted of Possession of a Deadly Weapon by a Person Prohibited. Finally, in 1985, Whiteman was convicted of Escape in the Second Degree. The record reflects that Whiteman plead guilty on April 14, 1987, to one count of Second Degree Burglary. The 1987 plea agreement provided that the State would not recommend a life sentence, but the defendant would admit that his three prior felony convictions qualified him as an habitual offender under 11 Del. C. § 4214(a). Pursuant to the plea agreement, the State recommended that the Court sentence Whiteman within the statutory guidelines for Burglary in the Second Degree, which is two to twenty years. The Superior Court accepted the plea agreement, declared Whiteman to be an habitual offender, and sentenced him to ten years at Level V incarceration, to be suspended after serving three years for decreasing levels of supervision. Based upon these circumstances, the Court concludes that counsel's conduct did not fall below the reasonable level of professional assistance. With regard to the second prong, it is not probable that the outcome of the proceedings would have been different had defense counsel objected. Moreover, Whiteman has presented no compelling facts to overcome the strong presumption of effective counsel. Therefore, his claim of ineffective assistance of counsel based on the failure to object to the introduction of the order must be denied.
12. Whiteman's final claim is that the 1987 plea hearing transcripts were not prepared by a jurisdictional court. This claim is also without merit. The entry into plea agreement was held on April 14, 1987, in the Superior Court of Delaware, New Castle County. The Honorable Alfred J. Stiftel presided and Keith A. Trostle, the Deputy Attorney General, and David M. Lukoff, Assistant Public Defender, were present. The court reporter, Willliam J. Dawson ("Dawson"), was also present and reported all the testimony and evidence. Whiteman's claim that the transcripts were not prepared by a jurisdictional court is without merit. The court reporter present at the 1987 Superior Court hearing became a Chancery Court Reporter in 1990. While employed by Chancery Court, Dawson was required to create a certified copy of the hearing transcript. This explains the "Chancery Court Reporters" notation on each page of the transcript. Therefore, this ground for postconviction relief is without merit and must be denied.
13. The Court, therefore, DENIES Whiteman's Motion for Postconviction Relief for the above stated reasons.
Whiteman v. State, 1991 WL 12112 (Del.Supr.).
See State v. Whiteman, Del. Super., I.D. 30604628DI, Barron, J. (Jan. 19, 2001) (ORDER).
See Whiteman v. State, 2001 WL 1329693 (Del.Supr.).
Whiteman v. State, 2003 WL 1965411, at *1 (Del.Supr.).
Id.
Id.
Id.
Whiteman v. State, 2005 WL 2179397, at *1 (Del.Supr.).
Id.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994).
Riley v. State, 585 A.2d 719, 721 (Del. 1990).
See Super. Ct. Crim. R. 61(i)(5).
466 U.S. 668 (1984).
585 A.2d 736 (Del. 1990).
Strickland, 466 U.S. at 688, 694.
Flamer, 585 A.2d at 753-54.