Opinion
ID# 9409004333
Submitted: August 10, 1999
Decided: October 29, 1999
UPON DEFENDANT'S PRO SE MOTION FOR POSTCONVICTION RELIEF. SUMMARILY DISMISSED IN PART AND DENIED IN PART.
ORDER
This 29th day of October, 1999, upon consideration of Defendant's pro se Motion for Postconviction Relief, it appears to this Court that:
1. Herbert Williams III (Defendant) has filed this pro se motion pursuant to Super. Ct. Crim. R. 61. For the following reasons, Defendant's motion is SUMMARILY DISMISSED in part and DENIED in part.
Facts and Procedural History
2. Defendant was charged with three counts of Unlawful Sexual Intercourse Third Degree 11 Del. C. § 773 and one count of Noncompliance with Conditions of Bond 11 Del. C. § 2113. As a condition of his original bond, Defendant had been ordered by the Court of Common Pleas on November 16, 1993 to have no contact with any of the alleged victims of the charges or with any female under the age of seventeen. On September 7, 1994, the police had been contacted by a grandmother of one of the alleged victims who reported that her granddaughter had information relating to incidents of contact between the Defendant and an alleged victim from the original set of charges. A jury returned a verdict of guilty of felony level Noncompliance with Conditions of Bond, and verdicts of not guilty of three counts of Unlawful Sexual Intercourse Third Degree. In August 1995, the Court sentenced Defendant to three years at Level 5, suspended after one year for six months at Level 4, followed by eighteen months at Level 3. Defendant moved at sentencing to have the felony conviction reduced to a misdemeanor but that application was denied. Defendant appealed his conviction for Noncompliance with Conditions of Bond and asserted in the Supreme Court that (1) the Court of Common Pleas had erred when it did not allow him to attend the bail hearing; (2) that the Superior Court had erred when it failed to instruct the jury on the intent element of the offense of Noncompliance with Conditions of Bond; (3) that the Superior Court abused its discretion in allegedly using unreliable information when determining his sentence; and (4) that his arrest was invalid because there was not sufficient showing of probable cause. The Supreme Court held that Defendant's arguments were "wholly without merit" and affirmed the conviction and sentence. On December 7, 1998 Defendant filed this Motion for Postconviction Relief pursuant to Super. Ct. Crim. R. 61.
Specifically, the State alleges that the grandmother reported the contact between Defendant and one of the victims to the police. The State also alleges that a roommate of the victim reported to the police that the victim left their residence several times in the middle of the night to meet the Defendant while released on bail. Furthermore, the State alleges, that the victim's roommate, along with another witness, observed the Defendant engage in consensual vaginal intercourse and cunnilingus with the victim. Both witnesses testified at trial to that effect.
Williams v. State, Del. Supr., No. 373, 1995, Hartnett, J. (July 1, 1996) (ORDER).
3. Defendant has alleged in this that postconviction relief should be granted for the following grounds: (1) illegal sentence; (2) violation of due process rights; (3) insufficient evidence for conviction; (4), (5), (7) and (9) ineffective assistance of trial counsel; and (6) and (8) ineffective assistance of appellate counsel.
Standard of Review
4. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Super. Ct. Crim. R. 61. Rule 61(i)(2) provides that "any ground for relief not asserted in a prior postconviction proceeding is thereafter barred, unless consideration of the claim is warranted in the interest of justice." Under the interest of justice exception, the defendant must show that the trial Court lacked authority to punish him. However, these procedural bars may potentially be overcome by Rule 61(i)(5), which provides, that "[t]he bars to relief in paragraph (1) [and] (2) . . . shall 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 judgement of conviction."
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Wright, Del. Super., 653 A.2d 288, 298 (1994).
Discussion
5. Ground One of Defendant's motion claims that he was "sentenced for felony Noncompliance with Recognizance; Bail, or Conditions after the felony charge was reduced to a misdemeanor by the trial judge" and that this is a "violation of the defendant's constitutional rights."
Defendant's Motion for Postconviction Relief at 3.
Super. Ct. Crim. R. 61(i)(4) states that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." To invoke the "interest of justice" provision of Rule 61(i)(4) to obtain re-litigation of a previously resolved claim, a movant must show that subsequent legal developments have revealed that the trial court lacked authority to convict or punish the defendant.
Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990) ( citing Slater v. State, Del. Supr., No. 164, 1994, Berger, J. (Mar. 1, 1995) (ORDER) at 3).
A "Motion to Reclassify the Felony Breach Conviction as Misdemeanor" was filed by Defendant on August 16, 1995 and denied on September 14, 1995. This issue was litigated in the trial court and is therefore barred by Rule 61(i)(4) since it was "formerly adjudicated." The trial court denied Defendant's Motion to Reclassify the Felony Breach Conviction as Misdemeanor after "having read and considered" the motion. This contention of Defendant is summarily dismissed.
State v. Williams, Del. Super., I.D. #9409004333, Cooch, J. (Aug. 18, 1995) (bench ruling).
6. Ground Two of Defendant's motion claims that his due process rights were violated because the Defendant was not "present at the bail hearing when bail was set, by not being given notice of the bail conditions, by being released on bail without signing a bail form with the special condition for which [Defendant] was later arrested for violating being specifically set out on the bail form."
Defendant's Motion for Postconviction Relief at 3.
Super. Ct. Crim. R. 61(i)(4) states that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice. To invoke the "interest of justice" provision of Rule 61(i)(4) to obtain relitigation of a previously resolved claim, a movant must show that subsequent legal developments have revealed that the trial court lacked authority to convict or punish the defendant.
Supra note 6.
This claim was an issue that was raised on direct appeal. As pointed out by the State in its answering brief, in the record there is a copy of the conditions of release on the bond signed by Defendant's father, surety for Defendant; a copy of the conditions of Defendant's ordered Pre-Trial Supervision, including the conditions of release; a case report to the Court from the Pre-Trial Services officer to whom Defendant was assigned; Defendant's Rule 10(c) arraignment form; and a stipulation between the prosecution and the defendant entered as evidence in open court agreeing to the existence of the no contact order in Defendant's conditions of release. Furthermore, this Court finds merit in the State's argument that because there was a stipulation at trial, it was established that Defendant entered into the stipulation knowingly, willingly and voluntarily, thereby waiving any rights to a later claim of denial of due process. This claim of Defendant is summarily dismissed.
See Williams v. State, supra n. 2.
7. Ground three of Defendant's Motion alleges that "[t]here was not sufficient evidence presented at trial to convict the defendant of Noncompliance with Recognizance; Bail or Conditions." Defendant further alleges that "defendant's conviction was based on testimony of an officer who did not interview the alleged victim and two witnesses whose testimony was inconsistent with the alleged victim." Defendant contends that this was prejudicial and a denial of his due process rights.
Defendant's Motion for Postconviction Relief at 3.
Id.
The claim of insufficiency of evidence is reviewable only if the defendant first presented it to the trial court, either in motion for a directed verdict or a Rule 29 Motion for Judgment of Acquittal. In the absence of such a motion, the claim is waived. This Court may excuse a waiver, however, if it concludes that this Court committed plain error, this Court's review of the record is "limited to material defects which are apparent on the face of the record; which are basic, serious and fundamental in their character, and which clearly deprive an accused of substantial right, or which clearly show manifest injustice."
Monroe v. State, Del. Supr., 652 A.2d 560, 563 (1995).
Gordon v. State, Del. Supr., 604 A.2d 1367, 1368 (1992).
Monroe at 563.
Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986), cert. denied, 479 U.S. 869 (1986) ( citing Bromwell v. State, Del. Supr., 427 A.2d 884, 893 n. 12 (1981)).
The record in the instant case indicates the detective did testify as Defendant alleges. However, the record also shows that two eyewitnesses and the victim also testified at trial and further established the elements of the offense of Noncompliance with Conditions of Bond. The assertion made by the Defendant is factually incorrect and is denied.
8. Grounds four, five, seven and nine of Defendant's Motion allege ineffective assistance of counsel. Specifically, in ground four, Defendant states that trial counsel was ineffective for "failing to proffer motions or argument indicating that defendant should have been found not guilty . . . because he was cleared of all underlying charges." In ground five, Defendant asserts that trial counsel was ineffective for "failing to argue to the jury that if the defendant were found not guilty of all underlying charges of his bail htat [sic] he should be found not guilty of the Noncompliance with Conditions of Recognizance; Bail or Conditions." In ground seven, Defendant contends that "[d]efense counsel failed to timely object to the sentence" because, as argued by Defendant, the trial judge "abused his discretion by using information lacking the requisite indicia of reliability when determining the defendant's sentence." In ground nine, Defendant argues that trial counsel was ineffective for "stipulating to the existence of a bail condition when the defendant was on trial . . . and had not attended the bail hearing, had not been informed of the condition of bail for which he was being charged . . . the condition was not stated on the bail forms . . . nor did defendant sign the bail forms."
Defendant's Motion for Postconviction Relief at back of p. 3.
Id.
Id.
Defendant's Motion for Postconviction Relief at back of p. 2.
To succeed on a claim of ineffective assistance of counsel, a defendant must show both (a) that "counsel's representation fell below and objective standard of reasonableness" and (b) "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would be different." In setting forth a claim of ineffective assistance, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. Review of counsel's representation is subject to a strong presumption that the representation was professionally reasonable.
Albury v. State, Del. Supr., 551 A.2d 53, 58 (1998) ( quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1985)).
Dawson v. State, Del. Supr, 673 A.2d 1186, 1196 (1996).
Flamer v. State, Del. Supr., 585 A.2d 753 (1990) ( citing Albury v. State, Del. Supr., 551 A.2d 59).
This Court finds that Defendant did not meet the standard set forth in Strickland in alleging ineffective assistance of counsel. The record shows, as Defendant's trial counsel submitted in her affidavit, that counsel for the defendant argued to the Court that Defendant should be found not guilty of the Noncompliance with Conditions of Bond and that, in the alternative, the charge should be reduced from a felony to a misdemeanor. This Court ruled that the jury could consider the Noncompliance with Conditions of Bond even though the underlying charges had been dropped. Counsel could not then make arguments to the jury contrary to the Court's ruling. The record shows that counsel for Defendant filed a Motion for Reduction of Sentence. This Court also finds that, as counsel for Defendant states in her affidavit, Defendant was aware and agreed with the trial strategy employed by counsel to stipulate to the existence of a bail condition, so that the jury would not hear potentially prejudicial evidence of Defendant's misconduct. Furthermore, Defendant was present when the stipulation was presented as evidence to the trial jury and should have objected to the stipulation at that time or on appeal to the Supreme Court. This claim of Defendant is denied.
Caroline P. Ayres, Esquire filed two affidavits in response to grounds four through nine of Plaintiff's Motion for Postconviction Relief.
Docket Entry Nos. 67-69.
Docket Entry Nos. 71, 78-79.
9. Grounds six and eight of Defendant's motion allege ineffective assistance of appellate counsel. Ground six alleges that appellate counsel
"did not provide the appellate court with an adequate record to review the adequacy of the probable cause showing by failing to produce the complaint filed by the officer who sought the warrant of the affidavit submitted in support thereof which precluded any appellate review of the defendant's claim that there was not sifficient [sic] probable cause established to arrest the defendant."
Defendant's Motion for Postconviction Relief at back of p. 3.
Ground eight alleges that the trial judge "abused his discretion by using information lacking the requisite indicia of reliability when determine the defendant's sentence." Defendant further notes that this argument was raised on direct appeal but was "precluded from an orderly review of the facts by the appellate court due to appellate counsel's failure to order a transcript of the sentencing proceeding."
Id.
Id.
Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Ct. Crim. R. 61. Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified." Claims for postconviction relief which are entirely conclusory may be summarily dismissed on that basis.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super Ct. Crim R. 61(d)(4); See e.g., Jordan v. State, Del. Supr., No. 270, 1994, Walsh, J. (Aug. 25, 1994) (ORDER); State v. Brittingham, Del. Supr., Cr. A. No. IN91-01-1009-R1, Barron, J. (Dec. 29, 1994) (ORDER) at 3 ( citing Younger v. State, 580 A.2d at 556) (holding that conclusory allegations are legally insufficient to warrant postconviction relief).
Defendant's allegations of ineffective assistance of appellate counsel are conclusory. Defendant proffers no factual support for grounds six and eight of his motion. Defendant merely claims in a conclusory manner that defense counsel has failed to give effective assistance based solely on the statements above. This Court finds these contentions vague and entirely conclusory, warranting summary dismissal.
See n. 31.
Conclusion
10. This Court finds that the Defendant has not met the procedural bars placed upon him by Rule 61(i)(4) as to grounds one and two. Defendant has not demonstrated that claims that have been formerly adjudicated should be reconsidered in the interest of justice. Defendant has not demonstrated how there was insufficient evidence at trial to convict the defendant of Noncompliance with Conditions of Bond. After review of the merits of Defendant's claims of ineffective assistance of trial and appellate counsel, this Court finds that Defendant has not met the standard set forth by Strickland For the above stated reasons, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED as to grounds one, two, six and eight and DENIED as to grounds three, four, five, seven and nine.IT IS SO ORDERED.
.