Opinion
IK99-10-0135-R1, IK99-10-0134-R1, IK99-10-0132-R1, ID. No. 9909014538
March 12, 2002
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Denise Weeks-Tappen, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Richard Mark Turner, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION
On January 19, 2000, the Defendant, Richard Mark Turner ("Turner") entered a Robinson plea to one count of Reckless Endangering in the First Degree, 11 Del. C. § 604; one count of assault in the third degree, 11 Del. C. § 611; and one count of resisting arrest, 11 Del. C. § 1257. Turner had also been charged with one count of unlawful imprisonment in the second degree and one count of terroristic threatening. If Turner had been convicted of all the charges, he faced the possibility of a life sentence due to his prior convictions. Pursuant to the plea agreement, the State nolle prossed the remaining counts. The Court proceeded to sentence Turner according to the Rule 11(e)(1)(c) plea agreement to a total of ten and a half years incarceration suspended after serving seven years at Level 5 and one year at the Level 5 Key Program (for a total of eight years at Level 5), for varying levels of probation. Turner 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, Turner alleges the following grounds for relief:
Ground One: I was coerced into taking a plea under the habitual off's (sic) act with the threat of 45-life if I took this to trial and was found guilty on any part of it. This was a coerced guilty plea. My attorney (Deborah Carey) was ineffectual in that she did not tell me that reckless endangering I is not an enumerated offense in seeking the 3rd strike habitual and not only was I sentenced under the habitual, the Judge went outside of the guidelines when he sentenced me.
Ground Two: I was never arrested on a reckless endangering charge. On my formal arrest warrant dated September 18, 2000 my offenses are as listed (1) unlawful imprisonment (2) assault 3rd degree (3) terroristic threatening and (4) resisting arrest. (Three weeks and 1 CCP court appearance later I was arraigned here at DCC on a reckless endangering felony. But I was never formally arrested or charged with R.E.)
Ground Three: I was overcharged by the D.A. with reckless endangering when D.A. realized another felony would be my 3rd strike.
Under Delaware Law this Court must first determine whether Turner 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 Turner'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 Turner'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 Turner'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 to this claim at this point should Turner demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions. Turner's remaining grounds for relief allege no cause for his failure to have raised the issues on direct appeal. They are therefore procedurally barred and should be dismissed.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
As noted, Turner's first ground for relief alleges that his counsel did not represent him effectively. This contention superficially raises the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel, Turner 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, including the affidavit of Turner's former counsel, it is abundantly clear that Turner 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 Turner's contention that counsel did not effectively represent him and that he was manipulated into pleading guilty. Turner was facing trial on multiple charges. Turner was facing the possibility of a life in prison sentence. Turner's attorney was able to negotiate a plea bargain with the State, which substantially limited the amount of incarceration from life in prison to only eight years incarceration. Turner and his attorney discussed the case prior to the entry of the plea. The plea bargain was clearly advantageous to Turner. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Turner 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, Turner 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 Turner was somehow deficient, Turner 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. Turner simply asserts that his counsel didn't do enough in an attempt to show prejudice. Turner does not suggest what more counsel could have done. This statement is insufficient to establish prejudice. The case against Turner was strong. Turner 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 Turner alleges his plea was involuntary, the record clearly contradicts Turner'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, Turner's attorney explained in extensive detail Turner's plea and their discussion regarding the plea. The Court then asked Turner if he heard what his counsel had said and whether it was true. Next the Court asked Turner whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Turner 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 Turner if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Turner if he was giving the plea of his own free will because he felt the State had sufficient evidence to convict him. He was also asked whether he recalled the events in question. Turner stated he did not due to his intoxication at the time of the offenses. Turner thus entered a Robinson plea. The Court asked Turner if he understood the maximum sentence he could receive by pleading guilty was thirty years in prison. The Court asked Turner if he understood he faced the possibility of a life sentence of incarceration due to the habitual offender statute. The Court also asked Turner if he was satisfied with his counsel's representation. Turner answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of guilty plea at 4-9.
Furthermore, prior to entering his guilty plea, Turner filled out a Guilty Plea Form and signed it. Turner 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. Turner is bound by the statements he made on the signed Guilty Plea Form unless he proves otherwise by clear and convincing evidence. Consequently, I confidently find that Turner entered his guilty plea knowingly and voluntarily and that these grounds for relief are 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 Turner's counsel represented him in a competent and effective manner and that Turner has failed to demonstrate any prejudice stemming from the representation. I also find that Turner' guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Turner' motion for postconviction relief.