Opinion
IK99-08-0237-R1 ID No. 9908001152
Submitted: May 22, 2002
Decided: June 3, 2002
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Dennis Kelleher, Esq., Deputy Attorney General, Department of Justice for the State of Delaware.
David M. Heath, 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, David M. Heath, ("Heath") pled guilty on December 17, 1999 to one count of Attempted Delivery of Cocaine, 11 Del. C. § 531, as a lesser included offense of Delivery of Cocaine. Heath was facing trial on the above charge along with an additional charge of Distribution of Cocaine within 1,000 Feet of a School, 11 Del. C. § 4767(a)(1). Pursuant to the plea agreement, Heath was sentenced to fifteen years incarceration suspended after ten years with credit for time served followed by probation. Had Heath gone to trial and been convicted of all the charges, he would have faced a substantial period of minimum mandatory incarceration. Heath did not appeal his conviction or sentence to the Delaware Supreme Court. State v. David M. Heath ID No. 9908001152 June 3, 2002 Instead Heath chose to file a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Heath alleges two grounds for relief.
(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 May 7, 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
The defendant David M. Heath, ("Heath") pled guilty on December 17, 1999 to one count of Attempted Delivery of Cocaine, 11 Del. C. § 531, as a lesser included offense of Delivery of Cocaine. Heath was facing trial on the above charge along with an additional charge of Distribution of Cocaine within 1,000 Feet of a School, 11 Del. C. § 4767(a)(1). Pursuant to the plea agreement, Heath was sentenced to State v. Heath ID No. 9908001152 May 7, 2002 fifteen years incarceration suspended after ten years with credit for time served followed by probation. Had Heath gone to trial and been convicted of all the charges, he would have faced a substantial period of minimum mandatory incarceration. Heath did not appeal his conviction or sentence to the State Supreme Court, instead he filed the instant motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Heath alleges two grounds for relief:
Ground One: Illegal Sentence: The movant contends that the December 17/99 sentencing was illegally imposed by this Honorable Court. The movant sentenced to serve (4) yrs. more than what the T.I.S. guidelines recommends, which is (6) yrs. The movant was sentenced to serve (15) yrs. suspended after (10) yrs. at L5.
Ground Two: Coerced Guilty Plea: The movant contends that this Court, the State's attorney and his (PD) Public Defender presented him with a plea agreement that reflected a (30) yr. sentence pursuant to Title 11 HB. offender (4214)(b). In order to pursuade (sic) the movant into pleading to the sentence he now serves.
Under Delaware Law this Court must first determine whether Heath 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 Heath'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. None of Heath'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 Heath's second 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 Heath demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions.
Bailey v. State, Del. Supr., 588 A.2d 1121, 112 7 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
Turning briefing to Heath's first ground for relief, while it is true that Heath's sentence exceeded the Truth in Sentencing guidelines, Heath faced at least 15 years minimum mandatory at Level V had he been convicted of the lead charge, due to his prior drug related criminal history. Additionally, the statutory penalty for the charge for which Heath entered his guilty plea is up to 99 years in prison. Clearly Heath's sentence is legal on its face and aside from being procedurally barred, this ground for relief is entirely meritless.
Heath's second claim superficially raises the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel Heath 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 5 3 (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, 199 4, Vease y, 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 Heath 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 Heath's contention that his counsel's representation was ineffective. Heath was facing trial on several serious charges and risked being sentenced to substantial incarceration. Heath's counsel was able to negotiate a plea bargain with the State which resulted in a substantially shorter sentence. Heath and his attorney discussed the case prior to the entry of the plea. The plea bargain was clearly advantageous to Heath. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Heath entered his guilty plea he stated he w as satisfied with defense counsel's performance. He is bound by his statement unless he presents clear and convincing evidence to the contrary. Consequently, Heath 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 Heath was somehow deficient, Heath 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. Heath simply asserts that his counsel didn't do enough in an attempt to show prejudice. Heath 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.
Heath alleges his plea was involuntary, however, the record clearly contradicts his 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 Heath whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Heath 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 Heath if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Heath if he was giving the plea of his own free will because he was in fact guilty. The Court also asked Heath if he was satisfied with his counsel's representation. Finally, the Court asked Heath if he was in fact, guilty of the charge. Heath answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of plea colloquy at 2-11.
Furthermore, prior to entering his guilty plea, Heath filled out a Guilty Plea Form in his own handwriting. Heath 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. Heath 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 Heath entered his guilty plea knowingly an d 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 Heath's counsel represented him in a competent and effective manner and that Heath has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Heath's guilty plea was entered knowingly and voluntarily. Consequently, I recommend that the Court deny Heath's motion for postconviction relief as procedurally barred.