Opinion
IK00-06-0430-R1 ID No. 0006007068
Submitted: August 9, 2002
Decided: August 14, 2002
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
John R. Garey, Esq., Deputy Attorney General, Department of Justice for the State of Delaware.
Richard A. Brinkley, pro se.
ORDER
Upon consideration of the defendant's Motion for Postconviction Relief, the Commissioner's Report and Recommendation and the record in this case, it appears that:
(1) The defendant Richard A. Brinkley, ("Brinkley") pled guilty on September 28, 2000 to one count of Assault in the Second Degree, 11 Del. C. § 612. Brinkley was facing trial on the above charge along with an additional charge of Escape in the Third Degree, 11 Del. C. § 1251. Due to his past criminal history, Brinkley was facing substantial mandatory time if convicted on these charges pursuant to the habitual offender statute. Pursuant to the plea agreement, Brinkley was sentenced to eight years incarceration suspended after three years with credit for time served followed by probation. The three years incarceration was, according to the plea agreement, to be served pursuant to 11 Del. C. § 4204(k). Brinkley also agreed that he would be eligible to be sentenced as an habitual offender pursuant to 11 Del. C. § 4214 in any subsequent felony conviction. Had Brinkley gone to trial and been convicted of both of the charges, he would have faced a substantial period of minimum mandatory incarceration. Brinkley did not appeal his conviction or sentence to the Delaware Supreme Court, instead he filed a motion to correct an illegal sentence. In that motion, Brinkley argued that his three years incarceration should not have been served pursuant to 11 Del. C. § 4204(k). This Court denied the motion noting that the sentence was in line with Brinkley's Rule 11(e)(1)(C) plea agreement with the State. Next, Brinkley filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Brinkley alleges two grounds for relief.
State v. Brinkley, Del. Super., ID No. 0006007068, Ridgely, P.J. (April 12, 2001) (Order).
(2) The Court referred this motion to Superior Court Commissioner Andrea M. Freud pursuant to 10 Del. C. § 512(b) and Superior Court Criminal Rule 62 for proposed findings of facts and conclusions of law. The Commissioner has filed a Report and Recommendation concluding that the motion for postconviction relief should be denied as procedurally barred.
(3) No objections to the Report have been filed.
NOW THEREFORE, after careful and de novo review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation dated July 25, 2002,
IT IS ORDERED that:
(A) The Commissioner's Report and Recommendation is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DENIED.
COMMISSIONER'S REPORT AND RECOMMENDATION
FREUD, Commissioner July 25, 2002.
The defendant Richard A. Brinkley, ("Brinkley") pled guilty on September 28, 2000 to one count of Assault in the Second Degree, 11 Del. C. § 612. Brinkley was facing trial on the above charge along with an additional charge of Escape in the Third Degree, 11 Del. C. § 1251. Due to his past criminal history, Brinkley was facing substantial mandatory time if convicted on these charges pursuant to the habitual offender statute. Pursuant to the plea agreement, Brinkley was sentenced to eight years incarceration suspended after three years with credit for time served followed by probation. The three years incarceration was, according to the plea agreement, to be served pursuant to 11 Del. C. § 4204(k). Brinkley also agreed that he would be eligible to be sentenced as an habitual offender pursuant to 11 Del. C. § 4214 in any subsequent felony conviction. Had Brinkley gone to trial and been convicted of both of the charges, he would have faced a substantial period of minimum mandatory incarceration. Brinkley did not appeal his conviction or sentence to the State Supreme Court, instead he filed a motion to correct an illegal sentence. In that motion, Brinkley argued that his three years incarceration should not have been served pursuant to 11 Del. C. § 4204(k). This Court denied the motion noting that the sentence was in line with Brinkley's Rule 11(e)(1)(C) plea agreement with the State. Next, Brinkley filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Brinkley alleges two grounds for relief:
State v. Brinkley, Del. Super., ID No. 0006007068, Ridgely, P.J. (April 12, 2001) (Order).
Ground One: Illegally Imposition of Sentence. The movant claims that his 9-28-00 sentence was illegally imposed based on the sentence being pursuant to mandatory term followed by 4204(k). Which the stature (sic) doesn't carry a mandatory term for 2nd degree assault.
Ground Two: Ineffective assistance of counsel. The movant contends that his counsel A. Witherell a court appointed lawyer, rendered himself ineffective at sentencing by allowing this Court to erronously (sic) impose illegal sentence.
Under Delaware Law this Court must first determine whether Brinkley has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of his postconviction relief claim. This is Brinkley's first motion for postconviction and it was filed within three years of his conviction becoming final, so the requirements of Rule 61(i) 1) — requiring filing within three years — and 2) — requiring that all grounds for relief be presented in the initial Rule 61 motion — are met. Brinkley's first ground for relief is essentially a duplication of the argument he made to the Court in his motion for correction of his sentence and is thus barred by Rule 61(i)(4). This Court is not required to reconsider Brinkley's claim simply because it is "refined or restated." To avoid the bar of Rule 61(i)(4) Brinkley must show that reconsideration of the claims are warranted in the "interest of justice." The interest of justice exception to Rule 61(i)(4) has been narrowly deferred to require that the movant "show that subsequent legal development have revealed that the trial court lacked the authority to convict or punish him." Brinkley makes no attempt to identify any subsequent legal developments that would change the Superior Court's earlier dismissal of this claim. Thus, this claim is procedurally barred.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
Riley v. State, Del. Supr., 585 A.2d 719, 721 (1990).
Super. Ct. Crim. R. 61(i)(4).
Flamer v. State, Del. Supr., 585 A.2d 736, 796 (1990); Maxion v. State, Del. Supr., No. 50, 1996, Holland, J. (July 2, 1996) (Order at 3).
To the extent, if any, Brinkley's first ground for relief raises a new issue it and his second ground for relief were not raised at the plea, sentencing or on direct appeal, therefore, they are barred by Rule 61(i)(3), absent a demonstration of cause for the default and prejudice. As both claims are linked they seemingly raise an issue of ineffective assistance of counsel, therefore, he has alleged cause for his failure to have raised these issues earlier. Rule 61(i)(3) does not bar relief as to these claims at this point should Brinkley demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions.
Turning briefing to Brinkley's first ground for relief, while it is true that Brinkley's sentence exceeded the Truth in Sentencing guidelines, Brinkley faced a substantial sentence as an habitual offender had he been convicted of the lead charge, due to his prior criminal history. Additionally, the statutory penalty for the charge for which Brinkley entered his guilty plea is more than the three years incarceration he received. Clearly Brinkley's sentence is legal on its face as well as being precisely what he agreed to in his Rule 11(e)(1)(C) plea bargain with the State. Aside from being procedurally barred, this ground for relief is entirely meritless.
Brinkley's second claim superficially raises the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel Brinkley must meet the two prong test of Strickland v. Washington. In the context of a guilty plea challenge, Strickland requires that a defendant show 1) that counsel's representation fell below an objective standard of reasonableness; and 2) that counsel's actions were prejudicial to him in that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial and that the result of a trial would have been his acquittal. In addition, Delaware courts have consistently held that in setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. When examining the representation of counsel pursuant to the first prong of the Strickland test, there is a strong presumption that counsel's conduct was professionally reasonable. This standard is highly demanding. Strickland mandates that when viewing counsel's representation, this Court must endeavor to eliminate the distorting effects of hindsight."
466 U.S. 668 (1984) ("Strickland"); Larson v. State, Del. Supr., No. 200, 1994, Hartnett, J. (June 23, 1995) (ORDER); Albury v. State, Del. Supr., 551 A.2d 53 (1988), Skinner v. State, Del. Supr., 607 A.2d 1170, 1172 (1992).
Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985); Strickland, 466 U.S. at 688, 694; Accord Larson v. State, supra at 3-4; Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Skinner v. State, 607 A.2d at 1172; Albury v. State, 551 A.2d at 58.
Younger v. State, 580 A.2d at 556; Skinner v. State, Del. Supr., No. 318, 1993, Holland, J. (March 31, 1994) (ORDER).
Albury v. State, 551 A.2d at 59 (citing Strickland, 466 U.S. 689); see also Larson v. State, supra at 4; Flamer v. State, 585 A.2d 736 at 753 (1990).
Id. at 754.
Strickland, 466 U.S. at 639.
Following a complete review of the record in this matter, it is abundantly clear that Brinkley has failed to allege any facts sufficient to substantiate his claim that his attorney was ineffective. I find counsel's affidavit, in conjunction with the record, more credible than Brinkley's contention that his counsel's representation was ineffective. Brinkley was facing trial on serious charges and risked being sentenced to substantial incarceration if convicted of all them. Brinkley's counsel was able to negotiate a plea bargain with the State which resulted in a substantially shorter sentence. Brinkley and his attorney discussed the case prior to the entry of the plea. The plea bargain w as clearly advantageous to Brinkley. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Brinkley entered his guilty plea he stated he was satisfied with defense counsel's performance. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Brinkley has failed to establish that his counsel's representation was ineffective under the Strickland test.
Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994) (ORDER); Mapps v. State, Del. Supr., No. 3, 1994, Holland, J. (March 17, 1994) (ORDER) (citing Sullivan v. State, Del. Supr., 636 A.2d 931, 937-938 (1994)).
Even assuming, arguendo that counsel's representation of Brinkley was somehow deficient, Brinkley must satisfy the second prong of the Strickland test, prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant must make concrete allegations of actual prejudice and substantiate them or risk dismissal. Brinkley simply asserts that his counsel didn't do enough in an attempt to show prejudice. Brinkley does not suggest what more counsel could have done. This statement is insufficient to establish prejudice.
Larson v. State, supra at 5; Younger v. State, 580 A.2d at 556.
To the extent Brinkley alleges his p lea was involuntary, the record clearly contradicts this allegation. When addressing the question of whether a plea was constitutionally knowing and voluntary the Court looks to the plea colloquy to determine if the waiver of constitutional rights was knowing and voluntary. At the guilty plea hearing, the Court asked Brinkley whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Brinkley if he understood he would waive his constitutional rights if he pled guilty, if he understood each of the constitutional rights listed on the guilty plea form and whether he gave truthful answers to all the questions on the form. The Court asked Brinkley if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Brinkley if he was giving the plea of his own free will because he was in fact guilty. The Court also asked Brinkley if he was satisfied with h is counsel's representation. Finally, the Court asked Brinkley if he was in fact, guilty of the charge. Brinkley answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of plea colloquy at 2-9.
Furthermore, prior to entering his guilty plea, Brinkley filled out a Guilty Plea Form in his own handwriting. Brinkley wrote that he understood the constitutional rights he was relinquishing by pleading guilty and that he freely and voluntarily decided to plead guilty to the charge listed in the plea agreement. Brinkley is bound by the statements he made on the signed Guilty Plea Form unless he proves otherwise by clear and convincing evidence. I confidently find that Brinkley entered his guilty plea knowingly and voluntarily and that this ground for relief is completely meritless.
Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (October 11, 1994) (ORDER); Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (January 4, 1990) (ORDER). See also Sullivan v. State, Del. Supr., 636 A.2d 931, 938 (1994) (ruling the fact that defendant filled out Truth In Sentencing Guilty Plea Form in defendant's own handwriting supported the Superior Court's conclusion that defendant's decision to plead guilty was knowing and voluntary).
I find that Brinkley's counsel represented him in a competent and effective manner and that Brinkley has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Brinkley's guilty plea was entered knowingly and voluntarily. Consequently, I recommend that the Court deny Brinkley's motion for postconviction relief as procedurally barred.