Opinion
Cr. A. No. IN98080228 R1
Submitted: May 19, 1999
Decided: June 3, 1999 Motion Denied: February 8, 2000.
ORDER
Upon review of Henry Wright ("Defendant")'s Motion for Postconviction Relief and the record, it appears to the Court:
(1) On May 19, 1999, Movant filed a pro se Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on a plea to Trafficking in Cocaine.
(2) On September 10, 1998, Movant pleaded guilty to Trafficking Cocaine 5-50 grams and two violations of probation. Effective July 13, 1998, Defendant was placed in the custody of the Department of Correction at supervision Level V for a period of five years. The first three years of the sentence is a mandatory term of incarceration pursuant to 16 Del. C. § 4753A. After serving three years at supervision Level V, the sentence is suspended for two years at Level III.
(3) In this motion, Defendant asserts three grounds which encircle his primary allegation that a toxicology report on the seized illegal substance was not completed until after Defendant pleaded guilty. Specifically, Defendant asserts that: (1) his counsel was ineffective because counsel advised Defendant to plead guilty without conducting pre-trial investigations and without reviewing all possible defenses; (2) his guilty plea was coerced as a result of the absence of the toxicology report; and (3) there was a break in the chain of custody of the illegal substance, identified as cocaine.
(4) 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.
Stone v. State, Del. Supr., 588 A.2d 94 [ 690 A.2d 924] (1996) Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
(5) The resolution of Defendant's three allegations depends on whether the lack of a completed and official toxicology report indeed affected Defendant's plea and conviction. Nevertheless, the Court finds that Defendant's specific claims are procedurally barred. The Court will not review the allegations on their merits because the claims are barred by Rule 61(b)(2) which requires that the content of a postconviction relief motion "set forth in summary form the facts supporting . . . the grounds thus specified." Accordingly, this Court will not address Rule 61 claims that are conclusory and unsubstantiated. In the instant Motion, Movant does not provide the Court with any facts or references to the record to substantiate the allegations. The Court cannot review the merits of his claims. The Court, therefore, denies relief upon this ground.
See Younger, 580 A.2d at 555; State v. Conlow, Del. Super., Cr.A. No. IN78-09-0985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr.A. No., IN87-03-0589-0594, Gebelein, J. (Sept. 2, 1988) at 10.
(6) Specifically, Defendant first alleges ineffective assistance of counsel for failure to conduct pre-trial investigations and for failure to consider all possible defenses. Aside from Defendant raising the tenuous argument that the substance found in his possession could have been baking soda or flour, Defendant's motion lacks specific allegations to support this ground, particularly in light of the expertise of the police in the area of drug identification.
(7) Second, Defendant alleges that his guilty plea was coerced because his counsel failed to investigate all possible lines of defense. Not only is counsel not obligated to pursue frivolous and dishonest lines of defense, it is an ethical violation for counsel to do so. This aside, Defendant nevertheless fails to support his allegation of a coerced guilty plea with specific supporting facts.
(8) Finally, Defendant alleges a break in the chain of custody, however, neither Defendant's motion nor in the record supports the allegation of a break in the chain of custody. Defendant points to the discrepancy in the approximate weight of the cocaine in the police report versus in the medical examiner's report as a basis for the suggestion that tampering occurred. This discrepancy, however, does not suggest to this Court that the evidence was tampered with, particularly because the toxicology report shows a lesser amount of cocaine (6.97 grams) than does the preceding police report (10.37 grams).
(9) Regardless of this Court's finding that Defendant fails to provide this Court with adequate supporting facts, because Defendant takes issue with the fact that his guilty plea preceded a toxicology report that reported a lesser amount of cocaine than did the police report, it is necessary to point out that the statute under which Defendant was convicted provides:
Any person who, on any single occasion, knowingly sells, manufactures, delivers or brings into this State, or who is knowingly in actual or constructive possession of 5 grams or more of cocaine or of any mixture containing cocaine . . . is guilty of a class B felony, which felony shall be known as "trafficking in cocaine." If the quantity involved:
(a) Is 5 grams or more, but less than 50 grams, such person shall be sentenced to a mandatory minimum term of imprisonment of 3 years and to pay a fine of $50,000.
As such, whether the Court relied on the police report or the toxicology report, Defendant would have received the same sentence.
See e.g., State v. Davis, Del. Super., Cr. A. No. IN94090598 IN94091143, Alford, J. (Feb. 11, 1997) ("An error is not harmless if it is 'so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.'" Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986)), and citing, D.R.E . 103(a) ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. . . ."); Super. Ct. Crim. R. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.").
11) 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.