Opinion
CR. A. Nos. IN 05-07-0328, IN 05-04-1433, IN 05-07-2112, IN 05-07-2123, IN 05-07-0055, IN 05-07-0058.
Submitted: May 21, 2007.
Decided: August 15, 2007.
Upon Consideration of Defendant's Pro Se Motion for Postconviction Relief, DEF. I.D.: 0506014175; 0506016607; 0504006752.
SUMMARILY DISMISSED.
ORDER
This 15th day of August, 2007, upon consideration of the Motion for Postconviction Relief brought by Defendant, Brian Cammile, it appears to the Court that:
Various court documents spell Defendant's last name Cammile, Camille, and Cammile. This Court will herein use "Cammile."
1. On May 21, 2007, Defendant filed the present pro se motion seeking postconviction relief under Delaware Superior Court Criminal Rule 61. For the reasons stated below, Defendant's Motion is SUMMARILY DISMISSED.
Super. Ct. Crim. R. 61 ("Rule 61").
2. Defendant cites four bases for relief: unfulfilled plea agreement because Defendant was sentenced without input from the mental health evaluations; prosecutorial misconduct by disparaging Defendant leading to a lack of Due Process; ineffective assistance of counsel by not informing Defendant that the State planned to breach the Plea Agreement; and "State's Habitual Status hearing." Because this is a pro se motion, the Court will allow more leeway than if the motion had been prepared by a lawyer. The record does not indicate that Defendant has ever directly appealed his conviction, filed a Rule 35 Motion for Modification of Sentence, filed a previous Rule 61 motion, or sought any other form of relief. Because this is Defendant's first motion for postconviction relief, the Court will address each of Defendant's claims.
Mot. for Postconviction Relief, 0506014175, D.I. 21.
See, e.g., Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
In the spirit of Haines, this Court has chosen not to dismiss Defendant's entire motion on the grounds that it is the improper vehicle for the remedy sought. Defendant wishes to be re-sentenced on each of the four grounds he presents. Re-sentencing is not a remedy available under Rule 61, but may be sought under Rule 35. As a Rule 35 motion would be untimely for Defendant at this time, the Court has instead chosen to discard the remedy sought in Defendant's Memorandum, and to instead treat this motion as a collateral attack on conviction. Contra State v. Costango, 2002 WL 234748 (Del.Super. 2002) (summarily dismissing a Rule 61 motion because it sought a modification of sentence).
3. On February 23, 2006, Brian Cammile ("Defendant") accepted a Plea Agreement whereby he entered a Robinson Plea of guilty to two counts of Burglary Second Degree, two counts of Conspiracy Second Degree, one count of Unlawful Use of a Credit Card over $1000, and one count of Theft over $1000. In return, the State agreed not to pursue the remaining charges for which Defendant was indicted. Defendant had three indictments pending with fifty-eight charges, including thirty-two felonies. Defendant signed the Plea Agreement, acknowledging his eligibility for sentencing as a habitual offender, and the Truth-in-Sentencing Guilty Plea Form, which stated that Defendant could be sentenced to life in prison as a habitual offender. The Court ordered a Pre-Sentence Investigation, including mental health evaluations to aid the Court when determining Defendant's habitual offender status.
Plea Agreement.
For case number 0506014175, Defendant faced twenty charges, including fourteen felonies. For case number 0506016607, Defendant faced thirty-six charges, including sixteen felonies. For case number 0504006752, Defendant faced an additional two felonies.
Plea Agreement.
Truth-in-Sentencing Guilty Plea Form.
Plea Agreement.
4. On January 23, 2006, Kathryn M. Sheneman, Psy.D., J.D., performed a mental health evaluation on Defendant on behalf of the State. Her written report was filed with the Prothonotary on February 15, 2006. On March 31, 2006, Mandell J. Much, Ph.D., DABPS, performed a mental health evaluation of Defendant on behalf of the defense. His written report was filed with the Prothonotary on May 15, 2006. On April 25, 2006, the State filed a motion to classify Defendant as a habitual offender with the matter to be decided at the time of sentencing.
Mental Health Examination, 0506016607, D.I. 12.
Psycho-forensic Evaluation, 0506016607, D.I. 15.
Mot. to Declare Brian I. Cammile an Habitual Offender, 0506016607, D.I. 14; 0506014175, D.I. 11; 0504006752, D.I. 35.
5. On May 12, 2006, prior to sentencing, this Court heard argument on the State's habitual offender motion. The State and Defendant's counsel made specific references to both mental health evaluations, and it is clear from the colloquy that although Dr. Much's evaluation had not yet been filed with the Prothonotary, both sides had reviewed his and Dr. Sheneman's evaluations carefully.
Colloquy at 2:23-7:18.
Id. at 4:16-20, 6:1-7:5.
6. After hearing argument, and reviewing the Pre-Sentence Investigation report and the Defendant's file, the Court granted the motion as to the two counts of Burglary Second Degree. Defendant was then sentenced as follows: for IN05-07-0328, Burglary Second Degree, eight years at Level V, the first year of which is a mandatory minimum; for IN05-04-1433, Burglary Second Degree, eight years at Level V, the first year of which is a mandatory minimum; for IN05-07-2112, Unlawful Use of a Credit Card over $1000, two years at Level V, suspended for six months at Level IV (either Work Release or Home Confinement), followed by six months Level III, with a hold at Level v until a space is available at Level IV; for IN05-07-2123, Theft over $1000, two years at Level V, suspended for one year at Level III consecutive to the Level III for IN05-07-2112; for IN05-07-0055, Conspiracy Second Degree, two years at Level V, suspended for one year Level III concurrent with the Level III for IN05-07-2112; for IN05-07-0058, Conspiracy Second Degree, two years at Level V, suspended for one year Level III concurrent with the Level III for IN05-07-2112, and restitution totaling $2121.66 paid to the victims of his crimes.
Id. at 9:9-20; Sentence Order, 0506016607, D.I. 16; 0506014175, D.I. 13; 0504006752, D.I. 37.
Sentence Order, 0506016607, D.I. 16; 0506014175, D.I. 13; 0504006752, D.I. 37.
7. Before addressing the merits of any postconviction relief claim, the Court first must determine whether the claims pass through the procedural filters of Rule 61. To protect the integrity of the procedural rules, the Court will not address the substantive aspects of the claims if Defendant's claims are procedurally barred. Rule 61(i) imposes four procedural imperatives: 1) the motion must be filed within one year of a final order of conviction; 2) any basis for relief must have been asserted previously in any prior post-conviction proceedings; 3) any basis for relief must have been asserted at trial or on direct appeal as required for the court rules; and 4) any basis for relief must not have been formerly adjudicated in any proceeding. Under Rule 61(i)(5), a defendant can circumvent the first three imperatives when the claim is jurisdictional or is a "colorable claim that there was a miscarriage of justice because of a constitutional violation[.]"
See Younger v. State, 580 A.2d 552, 554 (Del. 1990)("This Court applies the rules governing procedural requirements before giving consideration to the merits of the underlying claim for postconviction relief."); Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991)("The first inquiry in any analysis of a post-conviction relief claim is whether the petition meets the procedural requirements of Rule 61.")
Younger, 580 A.2d at 554; Bailey, 588 A.2d at 1127.
8. Applying the procedural filters of Rule 61 to the present motion, the Court finds that Defendant's claims of unfulfilled plea agreement, prosecutorial misconduct, and lack of a separate habitual status hearing are procedurally barred, but the claim of ineffective assistance of counsel is properly brought under this Rule 61 motion. The Court will address that claim last.
9. Defendant's first claim, unfulfilled plea agreement, was not raised at sentencing when Defendant had the opportunity, and is therefore barred under Rule 61(i)(3) because Defendant fails to meet the exceptions available under Rule 61(i)(3)(A) and (B) or Rule 61(i)(5). Defendant argues that his Robinson plea was entered under the agreement that he would be sentenced based on the results of his mental health evaluations, and that these evaluations had not yet been presented to the Court when he was sentenced. The Colloquy clearly shows that Defendant addressed the Court just prior to being sentenced, and he did not raise this argument at that time. Because Defendant is unable to circumvent the procedural bars via Rule 61(i)(5), this claim is procedurally barred and SUMMARILY DISMISSED.
Memorandum of Law in Support of Mot. for Postconviction Relief ("Memorandum"), 0506014175, D.I. 22.
Colloquy at 8:10-9:7. It should be noted that the Colloquy clearly shows why Defendant failed to raise this claim when given the opportunity. Contrary to Defendant's argument here, both mental health evaluations were presented to the Court, and were discussed by the State and Defendant's counsel prior to sentencing. The Court considered these evaluations when deciding what, if any, charges would be sentenced under the habitual offender status. Even if this claim were not procedurally barred, it would be summarily dismissed as wholly contrary to the facts. The case Defendant relies upon in his Memorandum, 0506014175, D.I. 22, Fromal v. State, 399 A.2d 529, is irrelevant, as it concerns the acceptance of guilty pleas, not sentencing.
10. Defendant's second claim, prosecutorial misconduct, was not raised previously, and is therefore barred under Rule 61(i)(3) because Defendant fails to show cause and prejudice, as required by Rule 61(i)(3)(A) and (B), and fails to meet the exceptions provided in Rule 61(i)(5). Defendant claims that the prosecutor called Defendant a "liar" and "manipulator," words never used by the mental health evaluators, and these words deprived him of Due Process.
Memorandum, 0506014175, D.I. 22.
11. Defendant's claim fails to overcome Rule 61(i)(3) because this is the first time the issue has been raised, but due to Defendant's allegations of a constitutional violation, the Court must examine the facts to see if Defendant makes "a colorable claim that there was a miscarriage of justice because of a constitutional violation" as provided in Rule 61(i)(5). The Court is unable to find any instance where the prosecutor called Defendant these names. The prosecutor compared and contrasted the two mental health evaluations of Defendant, noting several differences. The prosecutor suggested that Defendant attempted to appear less capable during the second evaluation. For example, he noted that during the first evaluation Defendant had "a fairly good grasp of the roles (i.e., judge, jury, attorneys) and procedures (i.e., trial, sentencing, pleading) involved in adjudicating criminal cases," but at his second evaluation he "lack[ed] a basic understanding of the roles and procedures involved in criminal adjudications. He was unable to accurately define the role of the judge . . . or to accurately explain the consequences of pleading to a lesser charge" or of "accept[ing] a plea agreement despite having accepted plea agreements in the past."
Colloquy at 5:6-7:5.
Colloquy at 6:20-7:5.
Mental Health Examination, 0506016607, D.I. 12.
Psycho-forensic Evaluation, 0506016607, D.I. 15. The Court notes that Defendant's present motion and accompanying memorandum of law is of a much higher quality than most pro se Rule 61 motions this Court receives, and its author had a strong comprehension of the roles and procedures of the criminal court system; it does not seem possible that someone unable to identify the role of a judge filed the present motion.
12. The prosecutor, by suggesting Defendant might have been less than forthright in his second evaluation, was trying to reconcile the conflicting reports. He did not call Defendant names, nor was Defendant deprived of Due Process. Defendant's claim of a constitutional violation has no merit, thus failing to meet the exception to the procedural bars as provided by Rule 61(i)(5), and is therefore SUMMARILY DISMISSED.
13. Defendant claims that Delaware case law guarantees him the right to have a Habitual Offender status hearing separate from his sentencing. The Colloquy clearly shows Defendant had an opportunity to raise this issue prior to sentencing, yet failed to do so. For this reason, it is barred under Rule 61(i)(3) unless Defendant can reach the exception clause of Rule 61(i)(5). Defendant fails to show that his constitutional rights were violated in a manner constituting a miscarriage of justice, as required by Rule 61(i)(5), so this claim is procedurally barred and SUMMARILY DISMISSED. Defendant also raised an issue in his argument about the vague use of a dismissed theft charge when ascertaining his status, but the Court is unable to find any reference to such a charge in the Colloquy.
Colloquy at 8:10-9:7.
The Court here notes that in the case Defendant relied upon for this argument, Bailey v. State, 450 A.2d 400, 404-5 (Del. 1982), the Delaware Supreme Court found the conflated habitual status hearing-sentencing to be less than desirable and a procedural error, but not a substantive error warranting reversal. Even if this argument passed the procedural hurdles, it would fail on substance.
14. Defendant's claim of ineffective assistance of counsel is not barred, because a Rule 61 motion is the appropriate vehicle for such a motion, even when the claim has not been raised previously. For a claim of ineffective assistance of counsel to succeed, Defendant must provide "a sufficient factual and legal basis for a collateral attack upon a criminal conviction" by "set[ting] forth in summary form the facts supporting each of the grounds thus specified." Claims that are merely conclusory and unsubstantiated risk being summarily dismissed. When a defendant alleges ineffective assistance of counsel, the claims must meet the two-pronged Strickland test by showing that his counsel performed at a level "below an objective standard of reasonableness," and that "the deficient performance prejudiced the defense." The first prong requires the defendant to show by a preponderance of the evidence that the defense counsel was not reasonably competent, while the second prong requires the defendant to show "that there is a reasonable probability that, but for defense counsel's unprofessional errors, the result of the proceeding would have been different." When a court examines a claim of ineffective assistance of counsel, it may address either prong first; where one prong is not met, the claim may be rejected without contemplating the other prong.
See Reynolds v. Ellingsworth, 843 F.2d 712, 723 (3d Cir. 1988), cert. denied, 488 U.S. 960 (1988).
Rule 61(a)(1).
Rule 61(b)(2).
See, e.g., Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (holding that a petitioner must substantiate concrete allegations of attorney ineffectiveness or risk summary dismissal).
Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
Id. at 687-88, 694.
Id. at 697.
15. Defendant's claim is based on the premise that his counsel "fail[ed] to properly communicate with his client the correct information regarding his case," though he makes two different arguments. At one point in his Memorandum, Defendant claims his counsel "informed" him that the State would not seek the maximum penalty available. Defendant faced up to life imprisonment. Defendant goes on to state that he "feels he was misled into believing his counsel was assuring him that the [S]tate would not pursue an enhanced penalty," presumably by not recommending he be punished as a habitual offender. In essence, Defendant is saying that, when his counsel told him the State would not seek to incarcerate him for life, his counsel was misleading Defendant into believing he would not be charged as a habitual offender.
Memorandum, 0506014175, D.I. 22.
Id.
Plea Agreement; Truth-in-Sentencing Guilty Plea Form.
Memorandum, 0506014175, D.I. 22.
16. In Defendant's Memorandum of Law supporting the present motion, he correctly identifies Strickland as the proper test, but fails to support the test with relevant facts. For example, when addressing the second prong of Strickland requiring Defendant to show prejudice, Defendant makes the following argument: "The second prong is that as a result of [counsel's professional errors] the defendant claims the result would have been different. Movant claims that as a result [of counsel's professional errors] he was led to believe that the outcome would be different, and [that is why] he accepted this [plea] agreement." Defendant fails to show actual prejudice, i.e., that there is a reasonable probability that, were it not for counsel's unprofessional errors, the result would have been different. Similarly, when Defendant claims that, under the first prong of Strickland, Defendant's counsel misled him into believing the State "would not pursue an enhanced penalty" by seeking Habitual offender status, Defendant fails to address his signed Plea Agreement and Truth-in-Sentencing Guilty Plea Form, where he admitted his eligibility for Habitual offender status, admitted he was not promised any definite sentence, stated he was satisfied with his legal counsel, and stated that he freely and willingly entered into the Plea Agreement. Defendant makes claims without supporting evidence, and conclusory claims that the result would have been different are insufficient for Strickland.
Id.
The Court believes this would be a near impossible feat, as Defendant's signed Truth-in-Sentencing Guilty Plea Form shows he knew he could be sentenced up to life in prison, and he freely admitted his guilt at Sentencing, Colloquy at 8:21-23, despite having entered Robinson pleas.
Memorandum, 0506014175, D.I. 22.
Plea Agreement; Truth-in-Sentencing Guilty Plea Form.
See, e.g., Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (holding that a petitioner must substantiate concrete allegations of attorney ineffectiveness or risk summary dismissal).
17. Because Defendant fails to provide the Court with a "sufficient factual and legal basis" to overturn his conviction, his claim of ineffective assistance of counsel is SUMMARILY DISMISSED.
Rule 61(a)(1).
IT IS SO ORDERED.