Opinion
ID No. 9709010268
Submitted: September 15, 1999
Decided: December 9, 1999
Upon Defendant's Pro Se Motion for Postconviction Relief. Denied.
James V. Apostolico, Esquire Deputy Attorney General
Mr. Alton Cannon Multi-Purpose Criminal Justice Facility
Dear Mr. Apostolico and Mr. Cannon:
Alton Cannon (Defendant) has filed this pro se Motion for Post Conviction Relief pursuant to Super Ct. Crim. R. 61. For the following reasons, Defendant's motion is SUMMARILY DISMISSED in part and DENIED in part.
Summary of Facts and Procedural History
On September 29, 1998, the Defendant entered a plea of guilty to the charges of Assault Second Degree and to Unlawful Sexual Contact First Degree (as a lesser included offense of Unlawful Sexual Contact First Degree). Pursuant to the plea agreement, the then pending charges of Unlawful Sexual Intercourse First Degree and Kidnaping First Degree were nolle prossed. On December 4, 1998, the Court sentenced the Defendant to ten years of Level V suspended after five years for three years at Level IV suspended after one year for four years at Level II. During the sentencing hearing, Defendant presented an oral Motion to Withdraw Guilty Plea that was denied by the Court because the Defendant had failed to make a satisfactory showing under Super. Ct. Crim. R. 32(d). On March 9, Defendant filed this Motion for Post Conviction Relief pursuant to Super. Ct. Crim. R. 61.
Super. Ct. Crim. R. 32(d) provides, in pertinent part, that "the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only by motion under Rule 61."
Standard of Review
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
In grounds two, three, six, seven, and in the lengthy attachments to the motion, Defendant contends that his trial counsel was ineffective. 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.
In ground two of the motion, Defendant states that "[c]ounsel violated the (truth in sentencing): rule." Defendant alleges that
Defendant's Motion for Postconviction Relief at 3.
[c]ounsel filled in the (questionnaire boxes) on the plea-bargain agreement sheet without defendants knowledge. Then put defendant in front of Judge to answer the questions which resulted in defendant being confused. [sic]
Id.
This Court finds that this contention is without merit. This Court addressed the completion of the guilty plea form during the plea colloquy and asked Defendant if "[he] fill[ed] out the guilty plea form after reviewing it thoroughly and carefully with your attorney. . . . " The Defendant answered "[y]es, sir." In the absence of clear and convincing evidence to the contrary, the defendant is bound by his signed statement on his plea form. Ground two of Defendant's motion is denied.
Tr. of Plea Colloquy of September 29, 1998 at 7.
Id.
Fullman v. State, Del. Supr., No. 268, 1988 Christie, C.J. (Feb. 22, 1989) (ORDER).
In ground three of the motion, Defendant asserts that "[c]ounsel did not inforce [sic] or apply the Rule #11(E) [sic] law to the plea-bargain." Defendant further asserts that
Defendant's Motion for Postconviction Relief at 3.
[c]ounsel did not challenge the (states) denial of applying Rule #11(E) law. Which would have demanded that (state) not impose a sentence over the `minimum statutory limitations' for offense(s). [sic]
Id.
It appears to this Court that Defendant's claim is that counsel failed to negotiate a Super. Ct. Criminal Rule 11(e)(1)(C) plea agreement. Counsel for Defendant requested of the State that the plea agreement not be made pursuant to Rule 11(e)(1)(C) so that he could attempt to persuade the Court to sentence the defendant within the guidelines and possibly obtain a time-served sentence for him. Ground three of Defendant's motion is denied.
Super. Ct. Crim. R. 11(e)(1)(C) states, in pertinent part, that "[t]he attorney general and the attorney for the defendant. . . may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lessor or related offense, the attorney general will do any of the following: (C) [a]gree that a specific sentence is the appropriate disposition of the case.
Aff. of David J.J. Facciolo, Esquire at ¶ v.
In grounds six and seven of his motion, Defendant contends that "[c]ounsel refused to dis-continue representation" and states that
Defendant's Motion for Postconviction Relief at back of 3.
[c]ounsel never represented defendant during entire term; still doesn't want to assist defendant in filing this (post-conviction relief). Even though he still maintains his position as ("legal attorney of records") the court violated defendants "right to `Appointment of New-Counsel'" [sic]
Id.
In ground seven, Defendant states that
[c]ounsel deceived client by threatening and coercing him into agreeing to a (plea-agreement): that would benefit the prosecution. Because the court had erred in determining ("A Prima Facie") case of (wrong-doing.) By defendant being coerced and not intelligently making the right decision by agreeing to the (plea-bargain) agreement. Gave the court the advantage to ignore the defendant right to ("withdraw his guilty plea.") When there are good (merits) to do so, by law. [sic]
Id.
This Court finds that Defendant did not meet the standard set forth in Strickland in alleging ineffective assistance of counsel. The record shows that Defendant did not indicate that he was dissatisfied with his attorney. To the contrary, the Court asked the Defendant at the time of his guilty plea if he was satisfied with the representation provided by defense counsel and if Defendant had been advised of his rights in entering the guilty plea. Defendant answered "[y]es." Furthermore, based on the testimony given by Defendant during the plea colloquy and the affidavit submitted by counsel for the Defendant, this Court finds that the evidence on the record demonstrates that the Defendant's plea was knowing, intelligent, and voluntary. In the absence of clear and convincing evidence to the contrary, the defendant is bound by his signed statement in his plea form. Grounds six and seven of Defendant's motion are denied.
Tr. of Plea Colloquy of September 29, 1998 at 7.
Id.
Fullman v. State, Del. Supr., No. 268, 1988 Christie, C.J. (Feb. 22, 1989) (ORDER).
Attached to this motion in the form of memoranda, Defendant makes numerous claims of ineffective assistance of counsel by asserting that counsel failed to discuss the case with him and failed to investigate the case. 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(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of the 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).
In summary, Defendant's allegations of ineffective assistance of counsel, approximately eleven pages worth, are conclusory. Defendant proffers no factual support for the additional claims alleged in the attachments to the motion. Defendant merely claims in a conclusory manner that defense counsel has failed to give effective assistance of counsel based on the fact that a plea was made without Defendant's knowledge and because counsel for Defendant did not uphold the law by applying effective legal representation. This Court finds these contentions repetitive, vague, and entirely conclusory, warranting summary dismissal.
See n. 23.
Defendant's claims for ineffective assistance of counsel all stem from his contention that he did not understand nor consent to the plea agreement and that he was not made aware that his plea was final and cannot be withdrawn. This Court finds that contention to be in direct conflict with the Defendant's own testimony at the plea colloquy. Specifically this Court asked Defendant, "[d]o you understand what's being done today is final, meaning that you won't be able to come back at a later time to withdraw your guilty pleas?" Defendant answered, "[y]es." In the absence of clear and convincing evidence to the contrary, the defendant is bound by his signed statement in his plea form.
Tr. of Plea Colloquy of September 29, 1998 at 13.
Id.
Fullman v. State, Del. Supr., No. 268, 1988 Christie, C.J. (Feb. 22, 1989) (ORDER).
Grounds one, four, and five of Defendant's motion make general complaints about the Court and the state's handling of the case. In ground one the Defendant states that the "[t]rial Jg. (abused discretion) by determining imposed sentence." Defendant further states that
Defendant's Motion for Postconviction Relief at 3.
[t]he sentencing Jg. (did not) base decision on (pre-sentence report, defendants, life and characteristics, criminal — background and (related — resources). Instead — the (sentencing Jg.) Based imposed sentence on his (personal — view, opinions and feelings) in the case. Case not decided on (case laws). [sic]
Id.
This Court finds that this argument is unsubstantiated. In sentencing the Defendant, the Court noted the State's recommendation of five years in prison and indicated that it was justified because of the nature of the crime. The Court stated
I'm taking into account the fact that you need at least a five-year period of incarceration because of he nature of this crime: the striking of the victim in the face, the injuries that were inflicted. You do have a minor prior record. I'm taking that into account for not giving you any more than five years.
Tr. of the Sentencing of December 4, 1998 at 17-18.
Ground one of Defendant's motion is denied.
Ground four of Defendant's motion is based on "(`suppression of favorable evidence')." Defendant contends that "[he] percieved [sic] that (justice would — (prevail) based on the ("investigative power of the Attorney General')." 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(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of the 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. This Court finds that Defendant's allegations are repetitive, vague, and conclusory, warranting summary dismissal.
Defendant's Motion for Postconviction Relief at back of 3.
Id.
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).
See n. 34.
Ground five of Defendant's motion states that "[t]he Court never gained, by the (weight of the evidence) in favor of the (state.) To (adjudicate) the matter or determine where preponderance lies." This Court finds that this contention is unsubstantiated. The record shows that Defendant accepted the plea agreement and therefore he is bound by his signed statement on the plea form.
Defendant's Motion for Postconviction Relief at back of 3.
Fullman v. State, Del. Supr., No. 268, 1988 Christie, C.J. (Feb. 22, 1989) (ORDER).
Conclusion
After review of the merits of Defendant's claims of ineffective assistance of counsel in grounds two, three, six, and seven, this Court finds that the Defendant has not met the standard set forth by Strickland. The allegations in grounds one and five are unsubstantiated. This Court also finds that Defendant's allegations in ground four and in the memoranda attached to his motion are conclusory. For the above stated reasons, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED at to ground four and the attachments and DENIED as to grounds one, two, three, five, six, and seven.IT IS SO ORDERED.