Opinion
ID. No. 9712001242. Cr.A. Nos. IK97-12-0322-R1, IK97-12-0325-R1.
January 26, 2000.
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Denise Weeks-Tappan, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Mr. James D. Crow, Jr., pro se.
COMMISSIONERS REPORT AND RECOMMENDATION
The Defendant, James D. Crow, Jr., ("Crow") pled guilty on June 1, 1998 to one count of Assault in the Second Degree, 11 Del. C. § 612; and one count of Aggravated Menacing, 11 Del. C. § 602. Crow was facing trial on the following additional charges: Terroristic Threatening, Assault in the Third Degree and Possession of a Deadly Weapon During the Commission of a Felony. Pursuant to the plea agreement, a Presentence Investigation was ordered. Due to several aggravating factors including the horrific nature of the offense, the Court sentenced Crow to ten years at Level V suspended after five years for varying lengths of probation. Had Crow gone to trial and been convicted on all of the offenses, he would have faced a substantial period of incarceration. Crow did not appeal his conviction or sentence to the State Supreme Court, instead he filed a motion for Reduction of Sentence which Superior Court denied. Next, Crow filed the pending motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. In his motion, Crow alleges three grounds for relief: 1) that his counsel coerced him into entering a guilty plea and did not investigate an alleged recantation by the victim; 2) that there was insufficient evidence for an assault in the second degree conviction; and 3) that the sentence imposed was excessive without the existence of aggravating factors.
I. FACTS
According to the record in this case, on Thanksgiving Day, November 27, 1997, the victim, Maudie Nunley, who was Crow's long time girlfriend and mother of his two children returned to the home she shared with Crow. Ms. Nunley had gone to the grocery store to shop for Thanksgiving dinner. Upon returning home, she realized she had forgotten some items at the store. When she told Crow she would have to go out again, he went into a rage, started picking up boxes of food, throwing them at Ms. Nunley, cursing at her and calling her names.
Crow decided to leave the house. He said he was going to go out and get drunk and stated to Ms. Nunley, "When I get back, I'm going to fuck you up. You're a good-for-nothing, lazy fat bitch." He returned later that day after drinking.
Meanwhile, Ms. Nunley had prepared Thanksgiving dinner for herself and her children. When Crow returned in the late afternoon, he sat at the table where Ms. Nunley's four year old daughter, Cayla, was seated. The table was glass. Crow started to eat the Thanksgiving dinner and upon realizing it was cold, went into a rage again. Crow took a pot from the glass table, slammed it into the table, and shattered the glass. The glass spray landed in Cayla's lap. She started screaming and crying.
Crow told Ms. Nunley to get Cayla out of the way. Crow then started throwing things at Ms. Nunley and beating her with his fists on her back. Crow next took a six-way plug with cord and started beating Ms. Nunley while she was on the ground, on her legs, leaving at least one large bruise and several large welts on her legs.
Eventually, Ms. Nunley made her way into the pantry/laundry room area of the trailer to get a broom with which she hoped to clean up the glass. Crow followed her into the laundry room and started cursing, calling her names again. Crow saw a circular saw in the laundry room. He picked up the saw and instructed Ms. Nunley to put her hands on a table. Crow plugged in the circular saw. Crow yelled to Ms. Nunley to "put your hands on the table, I'm going to cut your fingers." He attempted to put her hand on the table but she took it off. He yelled, "put it on the table or I'm going to put this on your head."
All the while this horrific scene was going on, Ms. Nunley was screaming in horror. While she was on the ground, Crow repeatedly placed the saw on her arms, legs, close to her head, while revving it up. This episode with the saw, placing it on her arms and legs, lasted ten to fifteen minutes. Although the guard was closed on the saw, there was a gap of approximately two or three inches that was not covering the blade.
The State Police were called by Ms. Nunley several days later. Inside the trailer they discovered the portions of shattered glass and wooden table with a corner cut off. The circular saw was also found and the trailer was in disarray. When he was arrested, Crow made some admissions concerning the altercation. After Crow pled guilty, Ms. Nunley sent the following letter to the Court:
The first year we were together was the best year that Junior and I had together. Then my fairy tale romance turned into a nightmare. We moved to Harrington where we lived with Junior's mother, Ruth Ann, and she was scared to death of her son. I remember Junior poured kerosene all around the kitchen and told his mother and me if we didn't leave the house he was going to set it on fire, so we left.
We then moved to Milton when we lived on a chicken farm. This is where Junior first hit me. There's been so much hitting that I don't remember clearly why he hit me. I think I didn't feed the chickens right. He slapped me in the head and locked me in the outside shed. He would get me up at five in the morning and wouldn't let me go to bed until midnight or longer.
We moved to Marydel where I had Dana, who is Junior's first daughter with us. While I was pregnant with her, I got yelled at and shoved around but he would never hit me. . . .
I never knew from day one, from one day to the next if he would be okay or not. I had to have his dinner fixed every day when he came home from work, and I had to have the house cleaned and I never went anywhere unless he gave his permission. In 1997, we had our second daughter, Brittany.
I forgot to say while we lived in Harrington I lost a baby and I think it was because of the stress. Then we moved to Hartly where I was choked one day and I went back to my mother's where I stayed for two weeks. And Junior kept calling and saying he loved me and he wanted to get married and he missed the kids. And like always, I believed him and went back. I had also left him when we lived in Harrington and I stayed with my mom-mom for almost three months, but I believed Junior and went back then, too.
When I left Junior this last time I was pregnant again, and I also lost this baby because of the beating he gave me on Thanksgiving day. This is the worst — this is the worst. I actually thought I was going to die. The day started out with him being in a bad mood and yelling at me and the kids.
Some church people brought over a cooked dinner for us and Junior didn't want to eat it and then when he did everything was cold. I was going to warm it up, but he threw the plate across the room and he threw all the food on the floor. He told me to clean it up, which I tried to do, but I guess I didn't do it right.
He grabbed me by my hair and started beating me. He was kicking and choking me and grabbed the skill saw and told me he was going to cut my fingers off. It was really bad and I never want to go through that again.
I lived in fear from the 26th, which was Thanksgiving Day. until the 31th when I called my mom to come to get me.
While Junior was at work, my parents came to get us and we called the cops so everything would be on record. I'm writing this letter because I want to make sure that Junior never gets my kids, even if he does kill me. I will only feel safe while he is locked up. When he gets out, I know he will come after me and I may not survive, but I want to make sure he doesn't get my children.
The last four years of our relationship I lost two babies and become very depressed and always on edge and even thought about killing myself and I'm only twenty years old. Please save me and my kids and help me to become a better person.
"Junior" refers to Crow.
II. PROCEDURAL CONSIDERATIONS
Under Delaware Law this Court must first determine whether Crow 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 Crow'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 initial Rule 61 motion — are met. None of Crow's claims were 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. Only Crow's first contention is based on ineffective assistance of counsel, therefore, he has alleged cause for his failure to have raised this issue earlier. Rule 61 (i)(3) does not bar relief as to this claim at this point should Crow successfully demonstrate that his counsel was in fact ineffective and that he was prejudiced by his counsel's actions. However, neither Crow's second or third grounds for relief allege cause for his failure to have raised them on appeal as such they are clearly barred by Rule 61(i)(3) and should be summarily dismissed. Even on the merits, these two claims must fail. As can be seen from the recitation of the facts above, it is clear the State possessed sufficient evidence to convict Crow of Assault in the Second Degree and that the heinous facts of the crime along with the history of violence clearly warranted sentencing outside the guidelines. Crow's second and third grounds for relief are therefore not only procedurally barred but entirely meritless.III. ANALYSIS
Crow's first ground for relief is that his counsel coerced Crow into pleading guilty and did not investigate the victim's alleged recantation. This contention superficially raises the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel Crow 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. (October 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 Crow 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 Crow's contention that he did not knowingly enter his plea or that his counsel did not adequately investigate the case. As counsel noted in his affidavit, Crow mentioned such a recantation but only after several requests by counsel did Crow produce a document which proported to be a recantation. Counsel showed a copy of this alleged affidavit to the State. Clearly counsel investigated this alleged recantation. It should be noted that the victim wrote an impassioned letter to the Court prior to Crow's sentencing in which she restated the facts of the case in graphic detail and expressed fears for her and her children's lives should Crow be released. Clearly any "affidavit" alleging to be a recantation was either false or drafted in fear of the defendant. Crow was facing trial on numerous charges and risked being sentenced to a substantial jail sentence, if convicted on all counts. The case against Crow was very strong indeed. Crow's counsel was able to negotiate a plea bargain with the State to limit Crow's period of incarceration. Crow and his attorney discussed the case prior to the entry of the plea. The plea bargain was clearly advantageous to Crow. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Crow 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, Crow 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. (October 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 Crow was somehow deficient, Crow 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. Crow simply asserts that his counsel didn't do enough in an attempt to show prejudice. This statement is insufficient to establish prejudice. Crow's current self-serving claims of innocence are not credited given the substantial evidence against him. It is extremely unlikely he would have been acquitted had he gone to trial. Crow has failed to demonstrate any prejudice stemming from counsel's representation.
Larson v. State, supra, at 5; Younger v. State, 580 A.2d at 556.
To the extent Crow alleges his plea was involuntary, the record clearly contradicts Crow's 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 Crow whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Crow 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 Crow if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Crow if he was giving the plea of his own free will because he was in fact guilty. The Court asked Crow if he understood the maximum sentence he could receive by pleading guilty was 13 years incarceration. The Court also asked Crow if he was satisfied with his counsel's representation. Finally, the Court asked Crow if he was in fact, guilty of the charge. Crow answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of guilty plea at 10-16.
Furthermore, prior to entering his guilty plea, Crow filled out a Guilty Plea Form in his own handwriting. Crow 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. Crow 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 Crow 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).
IV. CONCLUSION
I find that Crow's counsel represented him in a competent and effective manner and that Crow has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Crow's guilty plea was entered knowingly and voluntarily. Finally, Crow's remaining two grounds for relief are both procedurally barred by Rule 61(i)(3) and are meritless. I recommend that the Court deny Crow's motion for postconviction relief.