Opinion
ID No. 9804018057
Submitted: December 12, 2002
Decided: December 17, 2002
IK98-06-0219-R1 through IK98-06-0223-R1 and IK98-06-0272-R1
John R. Garey, Esq., Deputy Attorney General, Dover, Delaware, for the State of Delaware.
Michael A. Bowers, 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 Michael A. Bowers, ("Bowers") pled guilty on January 20, 2000, to five counts of Unlawful Sexual Intercourse in the Third Degree, 11 Del. C. § 773 as a lesser included offense of Unlawful Sexual Intercourse in the First Degree; and one count of Continuous Sexual Abuse of a Child, 11 Del. C. § 778. Bowers was facing trial on the above charges along with forty additional counts of Unlawful Sexual Intercourse in the First Degree, 11 Del. C. § 775(a)(4) and eight counts of Unlawful Sexual Intercourse in the Second Degree, 11 Del. C. § 774. All the charges involved Bowers' young daughter. The State contended the abuse began when the victim was between the ages of four and six and continued until she reported it at the age of seventeen. Following a presentence investigation, Bowers was sentenced on March 3, 2000 to sixty-five years incarceration, suspended after serving fourteen and one-half years incarceration for probation. Had Bowers gone to trial and been convicted as charged, he would have faced a fifteen year minimum mandatory sentence on each of the forty-five counts of Unlawful Sexual Intercourse in the First Degree and the possibility of forty-five separate sentences of life imprisonment. Bowers did not appeal his conviction or sentence to the Delaware Supreme Court. Instead he filed a motion for postconviction relief pursuant to Superior Court Criminal Rule 61. In his motion, Bowers alleges three grounds for relief, including ineffective assistance of counsel.
(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 November 25, 2002,
IT IS ORDERED that:
(A) The Commissioner's Report and Recommendation, as amended on December 12, 2002, is adopted by the Court;
(B) The defendant's Motion for Postconviction Relief is DENIED.
Appendix
COMMISSIONER'S REPORT AND RECOMMENDATION
Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61 FREUD, Commissioner November 25, 2002
The defendant Michael A. Bowers, ("Bowers") pled guilty on January 20, 2000, to five counts of Unlawful Sexual Intercourse in the Third Degree, 11 Del. C. § 773 as a lesser included offense of Unlawful Sexual Intercourse in the First Degree; and one count of Continuous Sexual Abuse of a Child, 11 Del. C. § 778. Bowers was facing trial on the above charges along with forty additional counts of Unlawful Sexual Intercourse in the First Degree, 11 Del. C. § 775(a)(4) and eight counts of Unlawful Sexual Intercourse in the Second Degree, 11 Del. C. § 774. All the charges involved Bowers' young daughter. The abuse began when the victim was between the ages of four and six and continued until she reported it at the age of seventeen. Following a presentence investigation, Bowers was sentenced on March 3, 2000 to sixty-five years incarceration, suspended after serving fourteen and one-half years incarceration for probation. Had Bowers gone to trial and been convicted as charged, he would have faced a fifteen year minimum mandatory sentence on each of the forty-five counts of Unlawful Sexual Intercourse in the First Degree and the possibility of forty-five separate sentences of life imprisonment. Bowers 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, Bowers alleges three grounds for relief:
Ground One: The attribute of being in conformity with the law. The movant has a protected liberty interest in a proceeding under the Protection From Abuse Act PFAA, under 10 Del. C. § 1041 part D subchapter III. This is a violation of the Fourteenth Amendment, Delaware Constition (sic) I § 6, 7, 9.
Ground Two: The proceedings used to instition (sic) of the charge. The Act was intended to protect against domestic violence. A proceeding under this act in which the petitionce (sic) is seeking an order of protection from abuse which is a civil proceeding held in Family Court by a Master.
Ground Three: The Court lacked jurisdiction. Accordingly, a subsequent criminal proceeding based upon the same facts as those alleced (sic) in a petition for an order of protection abuse. This is in the Family Court and the hearing is a probable cause hearing by a Junce (sic).
I note that Bowers' claims are identical to those raised by another defendant in State v. Rampmeyer, Del. Super. ID No. 9808014797.
Bowers alleges he did not raise these "issues" earlier because his attorney "never questioned the proceedings that instituted the alleged charges."
Under Delaware Law this Court must first determine whether Bowers 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 Bowers' 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 Bowers' 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. One can argue that each of Bowers' contentions are based on ineffective assistance of counsel due to his catch all claim that "his attorney never questioned the proceedings," 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 Bowers 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).
Bowers' contentions superficially raise the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel Bowers 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 reason able 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 Bowers has failed to allege any facts whatsoever sufficient to substantiate his claim that his attorney was ineffective. Bowers was facing trial on many serious charges and risked being sentenced to forty-five life imprison sentences. Bowers' counsel was able to negotiate a plea bargain with the State which resulted in only fourteen and one-half years incarceration. Bowers and his attorney discussed the case prior to the entry of the plea. The case against Bowers was exceptionally strong given his confession to the police. The plea bargain was clearly advantageous to Bowers. Counsel's resentation was certainly well within the range required by Strickland. Additionally, when Bowers entered his guilty plea he stated on his guilty plea form that 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, Bowers 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 Bowers was somehow deficient, Bowers 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. Bowers simply asserts that his counsel didn't "question the proceedings" in an attempt to show prejudice. Bowers does not suggest what more counsel could have done. This statement is clearly insufficient to establish prejudice. Bowers has failed to demonstrate any prejudice stemming from counsel's representation. Indeed, it is difficult to imagine any possibility of prejudice in this case given Bowers' absurd claims. Bowers' assertion that a civil protection from abuse proceeding somehow trumps a felony sexual assault of a minor charge is nonsensical and idiotic. Not only are Bowers' claims procedurally barred they are some of the most absurd I have ever seen. They have no merit whatsoever.
Larson v. State, supra at 5; Younger v. State, 580 A.2d at 556.
Furthermore, prior to entering his guilty plea, Bowers filled out a Guilty Plea Form in his own handwriting. Bowers 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 charges listed in the plea agreement. Bowers 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 Bowers entered his guilty plea knowingly and voluntarily.
Hickman v. State, Del. Supr., No. 298, 1994, Veasey, C.J. (Oct. 11, 1994) (ORDER); Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (Jan. 4, 199 0) (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 hand writing sup ported the Superior Court's conclusion that defendant's decision to plead guilty was knowing and voluntary).
I find that Bowers' counsel represented him in a competent and effective manner and that Bowers has failed to clearly demonstrate any prejudice stemming from the representation. I also find that Bowers' guilty plea was entered knowingly and voluntarily. Consequently, I recommend that the Court deny Bowers' motion for postconviction relief as procedurally barred.
Additionally, as clearly noted in the State's reply, each of Bowers' claims are also entirely meritless.