Opinion
ID No. 0810020668.
Submitted: March 5, 2010.
Decided: July 8, 2010, Revised: July 22, 2010.
Upon Motion of the Defendant for Postconviction Relief — DENIED .
Criminal Action Number IN-08-11-1971R1, IN-08-11-1972R1, IN-08-11-1974R1.
MEMORANDUM OPINION
Before the Court is Markief Wiggins' ("Wiggins") Pro Se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). He asserts three grounds for relief: (1) counsel coerced him to accept a guilty plea which amounts to ineffective assistance of counsel; (2) suppression of favorable evidence because the State "brought back" charges which were dismissed at his preliminary hearing; and (3) and unfulfilled plea agreement because the State originally agreed to recommend two years Level V and not the 3-6 years Level V in the plea agreement he accepted. Wiggins' attorney responded to this motion by affidavit and Wiggins' parents responded to counsel's affidavit by letter.
Factual background and nature of proceedings
On October 26, 2008, Wilmington Police responded to a home invasion complaint. Neighbors had called 911 when they observed three Black males grab the victim, Edward Smigielski and forced him into his house. The victim was on his porch when the men approached. Upon arrival at the residence, officers observed the front door open and the injured victim against a wall in front of the house. Wiggins was inside the house and arrested on the spot while the other two males fled from the upstairs back window but were promptly caught. The 85 year-old victim was treated at Saint Francis Hospital for injuries to his upper torso and legs as a result of the incident.
The information about the incident comes from the police report which is part of Wiggins' pre-sentence file. Further, the affidavit of probable cause for the arrest warrant for Wiggins' co-defendant, Malcolm Lum, states:
On 10/26/08 this Unit 16 Adam (Ketler/Cancila) responded to 1125 Maple Street in reference to a home invasion complaint. This location is located in the City of Wilmington, County of New Castle, State of Delaware. Wilcom advised this Unit that three black males wearing dark clothing forced the victim into his residence and entered same. It should be noted that the above residence is a semi-attached row-home which is on the north side of Maple Street and faces South-bound. On the North side of the residence is located an alley-way and in the rear of the residence (North-side) is located a small yard which is fenced in.
Upon our arrival these officers made contact with the above residence and observed the front door open. These officers observed the victim (Smigielski, Edward WM 9/29/23) sitting against the wall directly in front of the front door. Writer immediately opened the screen door and observed a subject wearing a black hooded sweat shirt with a design, sitting down on a chair watching the victim. Writer immediately yelled several verbal commands for the suspect to get on the ground, which he refused. Writer had to physically place the suspect identified as (Wiggins, Markief BM 9/21/92) on the ground in order to take the suspect into custody.
Wiggins was born on September 21, 1992. On the date of the offense, therefore, Wiggins was just over 16 years old. He was originally arrested for: (1) Attempted Robbery First Degree, (2) Assault First Degree, (3) Burglary Second Degree, (4) Conspiracy Second Degree, (5) Unlawful Imprisonment Second Degree, (6) Criminal Mischief less than $1,000.00, (7) Resisting Arrest and (8) Possession of a Firearm During the Commission of a Felony ("PFDCF").
Since Wiggins was a juvenile, his preliminary hearing was held in Family Court. Following the hearing, bail was originally set at $33,000.00 secured. The charges were not dismissed. Wiggins was indicted on December 2, 2008. When Wiggins was indicted, however, two of the original charges, resisting arrest and criminal mischief, were not included. The bail on those charges was redistributed among the remaining charges. This Court has original jurisdiction over Wiggins due to the charges of Attempted Robbery First Degree and Assault First Degree.
Since the Public Defender represented the co-defendant, contract counsel was appointed on January 2, 2009. That counsel is now the subject of this motion. Wiggins' first case review was on January 20, 2009. Nothing was resolved at that time. Wiggins' final case review was held on April 20, 2009. The State's plea offer was rejected. The docket reflects that the State forwarded copies of the redacted police reports to defense counsel on April 21st.
Unfortunately, there is no copy in the Court's file of what that offer was.
The trial date of April 28th was continued at the State's request. The new trial date was set for June 30, 2009, but Wiggins entered his guilty pleas during the Plea by Appointment calendar on June 25th. He pled guilty to Attempted Robbery First Degree, Assault Second Degree (lesser included of Assault First Degree), and Conspiracy Second Degree. In the plea agreement, the State indicated it would ask for no more than six years at Level V.
Wiggins was sentenced on October 23, 2009. He was sentenced to four years at Level V on the Attempted Robbery charges, and two years at Level V on the Assault Second charge, followed by work release and probation and a suspended jail sentence on the Conspiracy charge.
Discussion
Before the Court can reach the merits of Wiggins' motion, the defendant must overcome the procedural bars contained in Rule 61(i). The only potential applicable bar is that the motion must be filed within one year of the final judgment of conviction. His motion was timely filed and no other procedural bars exist. The Court can now look to the merits of this motion.The Court asked trial counsel to respond to Wiggins' motion. He has done so and that reply was sent to Wiggins. Wiggins' parents, however, responded to counsel's affidavit. While ordinarily the Court would not treat such a response as coming from a defendant himself or herself as required, the court will, in this matter, consider it. The reasons are Wiggins' age, the motion is pro se, but primarily of a potentially serious statement which the parents made in their response.
Wiggins' first ground for relief alleges counsel coerced him into taking the guilty plea. His claim of ineffective assistance of counsel are governed by the United States Supreme Court's decision set forth in Strickland v. Washington. To prevail on an ineffective assistance of counsel claim, Wiggins must demonstrate that his counsel's performance fell below an objective standard of reasonableness and that the deficient performance prejudiced his defense. Under the first prong of Strickland, when evaluating counsel's performance, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." In addition to showing the deficient performance, Wiggins must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty but would have insisted on going to trial. Furthermore, Wiggins must make concrete allegations of cause and actual prejudice to substantiate a claim of ineffective assistance of counsel or else risk summary dismissal. He must also allege concrete allegations of actual prejudice and substantiate them. Failure to prove either prong is sufficient to defeat a claim and the Court need not address the remaining prong.
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id.
Id. at 689.
Hill v. Lockhart, 474 U.S. 52, 58, 88 L.Ed. 203, 106 S.Ct. 366 (1985).
Younger v. State, 580 A.2d 552, 556 (Del. 1980).
Jordan v. State, 1994 WL 466142 (Del. Super.) (citing Younger v. State, 580 A.2d 552 (Del. 1990)).
State v. Wright, 653 A.2d 288, 294 (Del. Super. 1994).
Wiggins alleges that his attorney was ineffective because "[He] lied and told [Defendant] different things the state had and didn't concerning [Defendant's] case. [He told Defendant] not to be concerned of my parents opinion concerning the plea an [sic] sign or else." In counsel's affidavit, he states that, "[c]ounsel spent considerable time discussing the facts of the case, defendant's prior criminal history, the right to proceed to trial (including all penalties) and the plea negotiations/agreement with both the defendant and his parents. All options were considered."
Mot. for Postconviction Relief at 3.
Aff. of Counsel at 1-2.
Wiggins' first ground for relief does not meet either of the requirements of Strickland. He has not shown how counsel's performance fell below an objective standard of reasonableness or that he would not have taken the guilty plea but would have instead gone to trial. His motion merely asserts conclusory allegations against his lawyer. Wiggins has not pointed to any specific facts to warrant overcoming the hurdles established in Strickland. Therefore, he has not overcome his burden of showing that counsel engaged in conduct that fell below an objective standard of reasonableness and that as a result, his defense was prejudiced.
To the extent Wiggins offers anything specific about this claim, he seems to be saying that his lawyer did not inform him of the "correct" evidence. But he offers no specifics beyond that that. This claim seems rather hollow when Wiggins was found and arrested inside the victim's house with the injured victim sitting on the floor in front of his house. He has, therefore, not overcome his burden of showing that counsel engaged in conduct that fell below an objective standard of reasonableness and that as a result, he was prejudiced.
Furthermore, since Wiggins was 17 when he entered his pleas, the Court was particularly careful in its colloquy to review his rights, make sure he knew what he was doing, etc. In short, the Court wanted to take extra steps to ensure that the pleas Wiggins were entering was something he wanted to do and knew he could still go to trial the following week. In addition, on the Truth in Sentencing ("TIS") guilty plea form Wiggins read, understood and signed before entering his plea, he checked "No" to the question of whether anyone threatened him or forced him to enter the plea. He is bound by that answer barring clear and convincing evidence to the contrary, which he has not offered.
See Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
The extensive plea colloquy underscores the Court's care in taking the plea and that there was no coercion. It also shows, despite his complaints about counsel, Wiggins still wanted to plead:
THE COURT: Have you had enough time to think about whether you should plead guilty to these three charges, or go to trial as originally charged on all the charges against you?
THE DEFENDANT: Yes, [Y]our Honor.
THE COURT: Are you satisfied you've had enough time to talk to your attorney about all the charges against you and the choice you have made to plead guilty to these three charges?
THE DEFENDANT: Yes, [Y]our Honor.
THE COURT: Is anybody making threats or promises to you to get you to plead guilty to these three charges?
THE DEFENDANT: No, [Y]our Honor.
THE COURT: Are you satisfied with your lawyer's advice?
THE DEFENDANT: Yes, [Y]our Honor.
THE COURT: Okay. You sort of shook your head no, however. I just want to make sure. Are you satisfied with [counsel's] advice?
THE DEFENDANT: I mean, I ain't satisfied with his job. I mean, I'm satisfied with what he's doing. No, [Y]our Honor. I believe not, [Y]our Honor.
THE COURT: You believe not?
THE DEFENDANT: I'm really not. I'm not satisfied with how he helped me in this case.
THE COURT: Why?
THE DEFENDANT: Because, like, since I've been locked up, I only saw him like once.
THE COURT: Does that mean you would like to not plead guilty and go to trial, or would you like to continue on and finish up this plea process? The choice is yours. The choice is yours.
THE DEFENDANT: I'm going to finish up the plea, [Y]our Honor.
THE COURT: Even though you may not be satisfied with the legal assistance that [counsel] has been providing to you? You still want to go ahead?
THE DEFENDANT: Yes, [Y]our Honor.
THE COURT: And you're sure?
THE DEFENDANT: Yes.
Trans. of June 25, 2009 Guilty Plea at 27-29.
Wiggins is bound by these statements. He has not shown convincing evidence why he should not be.
Sommerville, 703 A.2d at 632.
Wiggins' parents responded to counsel's affidavit by stating that counsel did not inform them about the death of the victim. At the time of the entry of the plea, the Court was aware that the assault victim was over 62. It was not aware that he was 85. The parents' claim that the victim was dead raised several implications. First, if he were dead at the time Wiggins pleaded but the State had not informed defense counsel, there would have been or could be serious repercussions. Second, Wiggins, of course, should have been told this, and if true, it would have likely affected the State's ability to proceed and/or make any kind of plea offer. Third, such information, if true, would be a significant factor in counsel's advice to Wiggins and his own decision whether to plead or force the State's hand.
That claim was so potentially serious the Court was compelled to check official Social Security Death Index records. The Court determined the victim, Edward Smigielski passed away on August 24, 2009. The guilty plea was entered and the plea was accepted on June 25, 2009 and the trial date was June 30, 2009. The death of the victim would have had no bearing on the decision to accept or reject the guilty plea since the victim died two months after the entry of the plea. In no way would the death of the victim after the plea was taken have any impact on the prosecution's presentation of evidence. Therefore, this "argument" is meritless.
The court was compelled to examine this allegation further under D.R.E 201(b).
Wiggins' second ground for relief is that he was indicted after the original charges were dismissed at his preliminary hearing. There is no factual basis for this claim. After he had his preliminary hearing in Family Court, all of the charges were transferred to this Court. Of the original charges, only two relatively minor ones were not indicted. This claim is without merit.
Lastly, Wiggins claims he thought the State was offering a plea with a two year sentencing cap but was then "forced" to sign the 3-6 year sentence plea agreement. Counsel rejects this contention by stating that "[c]ousel negotiated the best plea possible for Defendant [and] [a]ll terms and conditions of the plea were reviewed." Wiggins's statement that he was offered a plea with a two year sentencing "cap" is undocumented and, in the factual circumstances of this incident, not likely. If convicted of all charges, he faced a series of non-suspendable sentences totaling ten years verses the three years on the robbery charge to which he pled. The circumstances of the potential evidence indicted the original charges, and the plea that was eventually worked out, fully support counsel's statement responding to Wiggins' motion.
Aff. of Counsel at 2.
The plea agreement Wiggins signed stated the State would cap its sentence recommendation at six years. During the plea colloquy, the Court made sure that Wiggins knew and appreciated that the sentencing judge was not bound by that recommendation. The TIS form indicated the maximum sentence he could get was 35 years at Level V. That maximum sentence was orally repeated in the plea colloquy and Wiggins understood it. He also understood no one could promise or guarantee what his sentence would be. The State's jail time sentencing cap was six years and that is exactly what was ultimately imposed.
The TIS form contains a series of questions to be answered by a Defendant. It asks if anyone promised him what his sentence would be. Wiggins checked "No." In addition, as to the question if he was satisfied with his lawyer's representation and that his lawyer has fully advised him of his rights, he checked "Yes." Therefore, before the plea was entered, Wiggins indicated and signed that he was satisfied with counsel and the plea was not coerced.
Absent clear and convincing evidence to the contrary, Wiggins is bound by these statements. Wiggins has not presented any clear, contrary evidence to call into question his prior testimony at the plea colloquy or answers on the TIS form into question. In addition, the Court engaged in a detailed plea colloquy with Wiggins before this plea was accepted. The plea colloquy conducted demonstrates that he entered the plea "freely and voluntarily."
Crump v. State, 846 A.2d 237, 237 (Del. 2004).
In Wiggins' motion, there is a statement about illegal detention, search and seizure, speedy trial, remaining silent, right to counsel and confront witnesses. As stated in the motion, it is difficult to know if Wiggins is raising some claim arising from this listing. He offers none. Here again, he signed the TIS form where he checked he knew of these rights and was waiving them by his plea. In addition, because of his age, his first time in Superior Court, and the seriousness of the charges to which he was pleading, the Court verbally reviewed each of these rights. Wiggins said he understood each right. He understood he was giving them up by pleading. The Court also verbally reviewed his appellate rights which he was similarly waiving.
Absent Wiggins making a specific claim of something, the mere listing of these rights in his motion amounts to nothing.
Conclusion
For the reasons stated herein, Markief Wiggins's Motion for Postconviction Relief is DENIED.IT IS SO ORDERED