Opinion
Def. ID No. 9703003627
Submitted: July 23, 1999
Decided: August 17, 1999 Motion Denied: February 8, 2000
Upon Review of Defendant's Motion for Post-Conviction Relief, DENIED.
Diane M. Coffey, Esq., State of Delaware Department of Justice, Wilmington, Delaware, for the State of Delaware.
Charles Williams, pro se.
ORDER
Upon review of Charles Williams ("Defendant")'s Motion for Postconviction Relief, the record in the case, and papers filed by his trial counsel and the State, it appears to the Court that:
1) On November 10, 1998, Movant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on a plea to Unlawful Sexual Intercourse Third Degree, Burglary Second Degree and Assault Third Degree. On December 18, 1999, Defendant filed the same pro se Motion for Postconviction Relief with a Memorandum of Legal Arguments. Because the second motion is a copy of the first motion but for additional case citations, this Order will treat the motions as one and address them as follows:
2) On May 27, 1997, the Grand Jury charged Defendant with Unlawful Sexual Intercourse First Degree ( 11 Del. C. § 775) (IN97030600R1), Burglary Second Degree ( 11 Del. C. § 825) (1N97030601R1) and Assault Third Degree ( 11 Del. C. § 611) (1N97030602R1). Trial was scheduled for February 18, 1998. On February 18, 1998, Movant pleaded guilty to Unlawful Sexual Intercourse Third Degree, Burglary Second Degree and Assault Third Degree.
Defendant's Plea Agreement, dated February 18, 1998, states that Defendant would plead guilty to Unlawful Sexual Intercourse Third Degree, Burglary Second Degree and Assault Third Degree. The agreement further indicates that no charges would be dropped. The Sentence Recommendation section of the agreement states that a Pre-Sentence Investigation Report ("PSI") would be recommended, and that after the PSI, the recommended sentence would be 18 years Level V suspended after five years served for six months Level IV, then 18 months at Level III, then the balance of 11 years at Level II. The State and the Defendant agreed that restitution would be determined by the PSI, that Defendant would have no contact with the victim or her family, that he would comply with 11 Del. C. § 4120 (Registration of Sex Offenders) and with 11 Del. C. § 4336 (Community Notice of Released Sex Offenders) upon his release, that Defendant would receive psychological treatment and evaluation and that Defendant would stay more than 100 yards away from the victim.
Defendant's Truth In Sentencing Guilty Plea Form, dated February 18, 1998 and signed by Defendant, indicates that the statutory penalty for Unlawful Sexual Intercourse Third Degree is 0-10 years, that the statutory penalty for Burglary Second Degree is 0-8 years and that the statutory penalty for Assault Third Degree is 0-1 year.
3) On August 21, 1998, Defendant was sentenced. As to the charge of Unlawful Intercourse Third Degree, Defendant was sentenced, effective May 21, 1998, to Level V for a period of 10 years, suspended after five years for Level IV. After six months at Level IV, suspended for four years at Level III; after 18 months at Level III, suspended for three years at Level II. As to Burglary Second Degree, Defendant was sentenced to Level V for four years, suspended for four years at Level II. As to Assault Third Degree, Defendant was sentenced to level V for one year, suspended for one year at Level II.
4) This Court issued an opinion on May 19, 1999 denying Defendant's motion for postconviction relief on the basis of ineffectiveness of counsel and defects in the plea. Defendant notified this Court that he never received the attorneys' affidavits preceding this Court's decision, and therefore, he was not afforded an opportunity to respond to the attorneys' positions on his allegations. As a result, this Court treated Defendant's notification as a Motion to Reargue this Court's decision of May 19, 1999. Defendant then filed a reply to the attorneys' affidavits and letters, and therein asserted numerous additional grounds for relief.
In the first motion filed on November 10, 1998, Defendant asserted: (1) that his attorney presented him with an incomplete plea agreement; (2) ineffectiveness of counsel; and (3) illegal plea. In his response filed on July 23, 1999, Defendant asserts: (1) ineffective assistance of counsel for:
a. failure to "adequately meet with incarcerated Defendant in order to prepare for trial,"
b. failure to "adequately interview Defendant" to obtain facts necessary to establish and present a defense,
c. failure to "discuss and review State's evidence with Defendant prior to plea offer,"
d. failure to "review with Defendant the applicable legal principles" of culpability in USI, Burglary and Assault,
e. failure to "discuss any trial strategy, tactics or anticipated defense"
f. failure to "provide Defendant with indictment and discuss and explain actual charges and allegations to Defendant,"
g. failure to "retain an investigator to ascertain background potential State witnesses,"
h. failure to "obtain [a] copy of Defendants [sic] prior record and provide to and/or discuss with Defendant,"
i. failed to "obtain discovery; grand jury testimony and review the same with Defendant prior to trial/plea arraignment,"
j. failure to "conduct pretrial investigation by failing to go to the scene of the crime and locate potential witnesses,"
k. "counsels willingness to accept the governments version of facts and failed to file any motions because he relied on governments version of facts not base[d] on his own reasonable investigation,"
l. failure to subpoena and interview certain individuals who were prepared and available to testify at trial as alibi witnesses . . . thus providing exculpatory information . . .,"
and (2) ineffectiveness of counsel during guilty plea negotiations "as evidence[d] by the following:
a. "failure to research or investigate the crimes charged,"
b. "counsel advised Defendant of erroneous/faulty legal advice about the amount of time he would received" [sic],
c. "counsel promised Defendant he would received a specific sentence of '30 months level V," no matter what the judge said, "and five years total sentencing. [T]hat included probationary time,"
d. "counsel misrepresented the Plea Bargain/Agreement which provided that Defendant would only receive 30 months in prison,"
e. "counsel gave erroneous/faulty legal advice in that counsel informed Defendant that he would have to prove his innocence,"
f. "counsel gave erroneous/faulty legal advice in that counsel informed Defendant that he would have to prove his innocence,"
g. "counsel misrepresented material facts and withheld information, and exerted pressure on defendant to induce a guilty plea,"
h. "counsel coerced Defendants' guilty plea in order to conceal his unpreparedness for trial,"
i. "counsel failed to provide defendant with a copy of the indictment and explain the charges therein. It is defendant's contention hat he was never charged with a Unlawful Sexual Intercourse in the First Degree but instead was charged in the Third Degree in his indictment,"
j. "that defendant had three alibi witnesses ready to testify that defendant was with them going to school,"
k. "that the prosecutrix/victim had a history of filing charges exactly like those on other defendants."
Defendant cites letters from three individuals who state that defense counsel told them, after sentencing, that Defendant would serve no more than 30 months in prison, "no matter what the judge said." First, these are letters, not affidavits. Second, even if defense counsel "promised" a lesser term of incarceration, once sentencing was complete, the Court Order of imprisonment pursuant to an 11(e)(1)(C) plea was in place and such subsequent communications by or with counsel have no bearing on the sentence terms.
This contention will yield no further discussion other than that the indictment does charge Defendant with Unlawful Sexual Intercourse First Degree.
5) Superior Court Criminal Rule 61(a)(1) "governs the procedure on an application by a person in custody . . . under a sentence of this court seeking to set aside a judgment of conviction on the ground that he court lacked jurisdiction to enter the judgment or on any other ground that is a sufficient factual and legal basis for a collateral attack on a criminal conviction." In reviewing motions for Postconviction Relief, the Court must first determine whether a defendant's claims are barred by procedural requirements prior to addressing the merits of the underlying claims. This is Defendant's first Motion for Post Conviction Relief and the Court has determined that no procedural bars listed in Rule 61 are applicable. Therefore, the Court may consider the merits of Defendant's application.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
6) Defendant alleges that his plea is illegal because his attorney allegedly presented movant with an incomplete plea agreement and then induced him to sign the plea agreement and accept it at sentencing.
The first issue to be considered is Defendant's claim that defense counsel purposely presented Defendant with an incomplete plea agreement so that Defendant believed he would be sentenced only to five years at Level V for all charges together. The 11(e)(1)(C) plea agreement that Defendant signed clearly states the full sentence he received. In fact, the recommendation starts with "18 years Level V," which in no way indicates to this Court that Defendant agreed to a five year sentence. The "five years" to which Defendant refers is most likely the five years he would spend at Level V, not the entirety of his sentence.
The second issue to be considered is Defendant's claim that his attorney induced him to sign the plea and did not allow Defendant to speak on his own behalf at trial. In addition to the clarity of the plea agreement, the Court finds that Defendant participated fully in his plea proceeding and at his sentencing hearing. Defendant acknowledged that he was pleading guilty to Unlawful Sexual Intercourse Third Degree, Burglary Second Degree and Assault Third Degree.
And, Defendant signed and filled out, where required, the Truth in Sentencing Guilty Plea Form and the Plea Agreement. The plea entered was an 11(e)(1)(C) plea by which the Court abided at sentencing. A review of the plea transcript reveals that the Court clearly had a factual basis for accepting the plea. During the guilty plea hearing, the Court reiterated the factual bases for charging and indicting Defendant and in response to the Court's questions, Defendant stated to the Court that he was guilty of the described crimes.
Hr'g Tr. of Feb. 18, 1998.
Defendant acknowledged that he was aware of the maximum time of imprisonment for the charges and the fines which they could carry. He responded that he understood the time of imprisonment that he would receive, that the plea was knowing and voluntary, that he was not being forced to plea and that he did not receive a promise in exchange for his plea. The Court offered Defendant an opportunity to address the Court. Moreover, at the plea hearing, the prosecutor stated to the judge the exact sentence as it reads on the plea agreement.
Defendant indicated that he understood the agreed upon sentence. He again indicated that he understood the maximum term of imprisonment for the charges. He stated that he understood that his guilty plea was made pursuant to Rule 11(e)(1)(C) and that if the Court did not follow the recommended sentence, that he could withdraw his plea and proceed. He further acknowledged that he entered into the guilty plea freely and voluntarily, that by pleading guilty he was giving up his right to a trial by jury, his right to have his guilt proved by a reasonable doubt, and his right to present and cross-examine witnesses. Therefore, the Court finds that Defendant had a full and fair opportunity to be heard on the issue of his plea agreement. He was adequately advised in a timely and appropriate manner of the conditions of his plea, and he is bound by his written plea agreement and by his statements that he understood the plea to which he agreed.
7) Defendant's ineffective assistance of counsel claim alleges that his attorney allegedly presented movant with an incomplete plea agreement, and that his attorney induced him to sign the plea agreement and accept it at sentencing. And, as previously reiterated, Defendant's motion to reargue presents several additional allegations of ineffective assistance of counsel both generally and in the "guilty plea negotiations."
In order to establish trial counsel's assistance as so defective as to deprive a defendant of his Sixth Amendment right to a fair trial, the defendant must show: (1) that counsel's representation fell below an objective level of reasonableness; and (2) that the Defendant was prejudiced, i.e., that a reasonable probability exists that, but for the errors, the result of the proceedings would have been different.
Strickland v. Washington, 466 U.S. 668 (1984); Robinson v. State, Del. Supr., 562 A.2d 1184, 1185 (1989
In the case of a guilty plea, the United States Supreme Court has held that the second prong of the Strickland test becomes whether the defendant has shown that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." The Delaware Supreme Court has also noted that a defendant's burden in establishing a claim for ineffective assistance of counsel is difficult to meet:
Hill v. Lockhart, 474 U.S. 52, 59 (1985). See Albury v. State, Del.Supr., 551 A.2d 53, 58 (1988).
A retrospective examination of a lawyer's representation to determine whether it was free from any error would exact a higher measure of competency than the prevailing standard. Perfection is hardly attainable and certainly is not the general rule, especially in professional work where intuitive judgments and spontaneous decisions are often required in varying circumstances. . . . [W]hat is required is normal and not exceptional representation. . . .
Renai v. State, Del.Supr., 450 A.2d 382, 384 (1982) (quoting Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970)).
At his sentencing hearing Defendant was permitted to address the Court and ultimately did so. He had a full and fair opportunity to communicate to the Court his discontent with defense counsel. An alleged interruption by defense counsel at the sentencing hearing is Defendant's only supporting fact for ineffective assistance of counsel, and the transcript does not reflect that Defendant was interrupted by defense counsel. In fact, at the sentencing hearing, Defendant told the Court "I know what I did was wrong . . . can you put me in a program to better myself." The Court responded that it would help Defendant, but that ultimately Defendant is responsible for his own betterment and success. Defendant responded that he understood this.
Hr'g Tr. of Aug. 21, 1998.
Hr'g Tr. of Aug. 21, 1998.
Moreover, as for Defendant's numerous allegations asserted in his motion to reargue, Defendant fails to demonstrate either that counsel was ineffective or that the alleged ineffectiveness prejudiced Defendant. As for such claims in the motion to reargue, each claim, even if it did substantiate an ineffectiveness contention, would not satisfy the prejudice prong in light of the previous discussion confirming the effectiveness and validity of the guilty plea and sentencing procedure. It appears by the wording of Defendant's motion and his insistence that defense counsel failed in various aspects of trial strategy, that Defendant seems now to misunderstand, despite the plea colloquoy and his signing of the plea agreement and truth in sentencing form, that he plead guilty in open court and was informed of all that he would forego when making a plea.
Regardless, it is well-settled that blanket, conclusory allegations, without more and without proof of ineffective assistance and prejudice, do not satisfy Strickland. As such, this Court concludes that counsel's conduct did not fall below the standard set forth in Strickland.
State v. Vignola, Del. Super., Cr. A. IN95-12-0974, Gebelein, J. (Apr. 8, 1998); State v. Brittingham, Del. Super., Cr. A. No. IN91-01-1009-R1, Barron, J. (Dec. 29, 1994) (ORDER) at 3 (citing Younger v. State, Del. Supr., 580 A.2d 552 (1990); Jordan v. State, Del. Supr., No. 270, 1994, Walsh, J. (Aug. 25, 1994) (ORDER)).
8) For the foregoing reasons, the Court finds that the grounds upon which Defendant bases his Motion are without merit. Therefore, Defendant's Motion for Postconviction Relief is DENIED.
IT IS SO ORDERED.