Opinion
ID NO. 0208006434, Criminal Action Numbers IN-02-09-0620-R1, 0621-R1, 0622-R1 and 0624-R1.
Submitted: June 10, 2004.
Decided: August 23, 2004.
Upon Motion of Defendant for Post-Conviction Relief — DENIED.
MEMORANDUM OPINION
Defendant Joseph Wood has moved for postconviction relief. In a non-jury trial, he was convicted of aggravated menacing, possession of a firearm during the commission of a felony, possession of a firearm by a person prohibited and disorderly conduct. He was found not guilty of endangering the welfare of a child. His convictions were affirmed on appeal. Wood's grounds for seeking relief are:
Wood v. State, No. 274, 2003, Jacobs, J. (Oct. 31, 2003) (ORDER).
1. Ineffective assistance of counsel . The claim appears to be a mix that there was insufficient evidence and that his counsel did not obtain an acquittal or reversal because of it.
2. He was compelled to go non-jury. This compulsion came, he says, from his lawyer and because the State indicated it would not seek to declare him an habitual offender and would seek a lesser sentence if he went non-jury.
DISCUSSION
Before undertaking a review of his claims, the Court must determine if there are any procedural impediments to doing so. Both claims suffer procedural impediments.On direct appeal, Wood's counsel raised the issue of insufficiency of the evidence. The Supreme Court found there was sufficient evidence. Wood now seeks to repackage that claim as one of ineffective assistance of counsel. He also makes broad, conclusory criticisms about the trial court's findings.
First, this Court will not relitigate refined or restated claims. Second, that is all Wood has done; he has merely restated a prior claim. Third, the Court will not consider broad, conclusory claims such as Wood now makes.
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992).
Bratcher v. State, Del. Supr., No. 331, 1998, Veasey, C.J. (October 2, 1998) (ORDER).
Wood's claim of ineffective assistance of counsel is premised on his assertion that there was insufficient evidence to convict him. The sufficiency of this evidence has been adjudicated on appeal. The issue underpinning his claim of ineffectiveness has been adversely adjudicated to him. Since it was so adjudicated, it will not be reconsidered. There is relief from this bar of prior adjudication if reconsideration is warranted in the interest of justice. That standard is high. It has been interpreted to mean that Wood would have to show that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish." Wood has made no such showing. His claim, therefore, will not be reconsidered.
Superior Court Criminal Rule 61(i)(4); Bialack v. State, 773 A.2d 383 (Del. 2001).
Superior Court Criminal Rule 61(i)(4).
Maxim v. State, 686 A.2d 148, 150 (Del. 1996).
As part of this claim about insufficient evidence and ineffective assistance of counsel, Wood also argues his appellate counsel was required to seek reargument of the Supreme Court's affirmance decision. The record shows that there was no motion for reargument filed. But there was no such obligation to do so. Wood has not shown how such a motion would more likely prevail and reargument be granted. Just because the procedure is there for reargument does not mean it always has to be employed.
Zebrowski v. State, 822 A.2d 1038, 1051 (Del. 2003).
Wood's second claim revolves around his choice to waive a jury trial. There appear to be sever al subsets to this claim. One is that he "absolutely" wanted to exercise his right to a jury trial. Another is that his lawyer forced him into a non-jury trial. Finally, and not entirely consistent with his "absoluteness" is a contention that he waived his right to a jury trial on the promise the State would (1) not seek to declare him an habitual offender and (2) it would recommend he receive a sentence of no more than three years in jail.
This claim and most of its subsets initially come up against several procedural bars to consideration. Except for the complaint against trial counsel, the other claims could have been raised on direct appeal. These claims were known about when the direct appeal was filed and were not raised on appeal. They are barred. To obtain relief from these bars, Wood must show cause and prejudice.
Superior Court Criminal Rule 61(b)(2) and (i)(3).
Rule 61(i)(3).
He has made no such showing. Cause could be shown if he received ineffective assistance of counsel. To show ineffective assistance of counsel, he must show (1) counsel's conduct fell below an objective standard of reasonableness and (2) but for counsel's error there was a reasonable probability he would have not waived his right to a jury trial. The record shows why this claim fails.
Freeman v. State, Del. Supr., No. 469, 1997, Veasey, C.J. (Jan. 8, 1998) (ORDER).
Grosvernor v. State, 849 A.2d 33 (Del. 2004).
After a group of prospective jurors was brought to a courtroom to start the selection process, the Court was informed Wood desired to waive a jury trial. The Court, the defendant and counsel adjourned to an adjoining courtroom to discuss that issue. The discussion started with the prosecutor arguing there were two "conditions" to the State's offer of a waiver. Defense counsel acknowledged that there were two "conditions." The first was that if convicted of one of the felony charges at a non-jury trial, the State would not seek to have him declared an habitual offender. The second was that, if convicted, the State would ask for no more than four years in jail.
The Court engaged in a lengthy colloquy with Wood. The Court made clear and he stated he understood that his waiver could not be contingent on these conditions. Further, the Court made it clear that it was not bound by any understanding between him and the State over his sentence, if convicted. Wood said he fully understood this. All of his answers to questions about these "conditions" and understanding about the waiver were under oath. After the extensive colloquy the Court found Wood's waiver of a jury trial to be knowing, intelligent and voluntary. In addition, the waiver colloquy substantially and substantively covered the areas recommended in Davis v. State. Also, following the colloquy, Wood signed a written waiver.
809 A.2d 565 (Del. 2002).
His claim now is that he "absolutely" wanted a jury trial. There was no such indication or hint of that during the colloquy. In addition, he is bound by his answers made under oath and his signed waiver in the absence of clear and convincing evidence to the contrary. Wood has made no such showing.
Sommerville v. State, 703 A.2d 629, 632 (Del. 1997).
Further, Wood has not shown any counsel error. And his claim counsel coerced him is too vague. He cannot even show prejudice as the result of any counsel error. He argues now the prosecutor offered a three year sentence "cap" recommendation. But he thoroughly understood the Court was not bound by the State's recommendation. More important, however, the record demonstrates that the under standing which he, his counsel, and the prosecutor had was that the cap was four years, not three. And the Court imposed a sentence of four years in jail. This sentence contradicts another current claim that the judge "compromised" this understanding. Yet he acknowledged during the colloquy that he knew the Court was not bound by the State's recommendation.
In addition, when it came to sentencing, the State did not file a petition to have Wood declared an habitual offender.
In sum, Wood's claim cannot meet the prejudice test of ineffectiveness, even assuming he could show counsel error. This means he cannot meet the cause requirement for consideration of a claim that he should have raised on direct appeal. It also means he could not even meet the prejudice test for reconsideration.
Related to this, of course, is his independent claim of ineffective assistance of counsel regarding being forced into a jury trial waiver. Such a claim is not generally heard on direct appeal. But for the reasons shown above why he cannot meet the Rule 61(I)(3) cause and prejudice test, he cannot show ineffective assistance of counsel.
Duross v. State, 494 A.2d 1265, 1267 (Del. 1985).
CONCLUSION
For the reasons stated herein, Joseph Wood's motion for postconviction relief is DENIED.