Opinion
IK98-09-0046-R1, IK98-09-0049-R1, IK98-09-0053
May 2, 2001
Upon Defendant's Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61.
Robert J. O'Neill, Jr., Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Philip W. Downs, pro Se.
COMMISSIONER'S REPORT AND RECOMMENDATION
On January 26, 1999, the Defendant, Phillip W. Downs ("Downs") pled guilty to two counts of Delivery of Cocaine, 16 Del. C. § 4716(b)(4) and to one count of Possession of Cocaine With the Intent to Deliver 16 Del. C. § 4751. Downs had also been charged with three counts of Maintaining a Dwelling for Keeping Controlled Substances; three counts of Conspiracy in the Second Degree; and one count each of Trafficking in Cocaine, Possession of Cocaine, Possession of Drug Paraphernalia and Possession with Intent to Deliver Marijuana. If Downs had been convicted of all the charges, he faced a mandatory life sentence due to his prior drug convictions. Pursuant to the plea agreement, the State nolle prossed the remaining counts. The Court proceeded to sentence Downs according to the Rule 11(e)(1)(c) plea agreement to a total of thirty years incarceration suspended after serving ten years minimum mandatory, for varying levels of probation. Downs 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, Downs alleges the following grounds for relief:
Ground One: Involuntary Manipulated Guilty Plea; Movant's counsel duped him into taking plea to 30 years having knowledge that movant did not understand what he was signing because movant could not read and write. Led movant to believe that he was signing plea to 3 years Level V and 3 years probation. That plea was for a total of 6 years.
Ground Two: Ineffective Assistance of Counsel; Counsel failed to inform movant of the nature of the plea and the rights movant was giving up. Fraudulently manipulating movant out of money by misrepresentation and false promises.
Ground Three: Abuse of Discretion by Trial Judge; The Trial Judge abused his discretion when failed to look closely enough at the record to see the mitigating circumstances, that movant could not read and write and could not understand the nature of the plea or rights given up.
Under Delaware Law this Court must first determine whether Downs 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 Downs' 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 Downs' 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. Downs' first two contentions are based on ineffective assistance of counsel, therefore, he has alleged cause for his failure to have raised these issues earlier. Rule 61(i)(3) does not bar relief to these claims at this point should Downs demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions. Downs third ground for relief alleges no cause for his failure to have raised this issue on direct appeal. It is therefore procedurally barred and should be dismissed.
Bailey v. Stare, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
As noted, Downs' first two grounds for relief allege 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, Downs 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 Downs' former counsel, it is abundantly clear that Downs 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 Downs' contention that counsel did not effectively represent him and that he was manipulated into pleading guilty. Downs was facing trial on multiple charges. Downs was facing a mandatory life in prison sentence. Downs' attorney was able to negotiate a plea bargain with the State, which substantially limited the amount of incarceration from life in prison to only ten years incarceration. Downs and his attorney discussed the case prior to the entry of the plea. The plea bargain was clearly advantageous to Downs. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Downs 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. Furthermore, Downs wrote to counsel after his plea, praising his counsel's efforts at achieving the plea agreement with the State. Consequently, Downs 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 Downs was somehow deficient, Downs 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. Downs simply asserts that his counsel didn't do enough in an attempt to show prejudice. Downs does not suggest what more counsel could have done. This statement is insufficient to establish prejudice. The case against Downs was very strong indeed. Downs 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 Downs alleges his plea was involuntary, the record clearly contradicts Downs' 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.
Godinez v. Moran, 113 S.C-i 2680, 2687 (1993).
At the guilty plea hearing, Downs' attorney explained first that because Downs had some problem reading counsel had read everything to him on the guilty plea form and plea agreement and explained everything to him. The Court then asked Downs if he heard what his counsel had said and whether it was true. Next the Court asked Downs whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Downs 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 Downs if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Downs if he was giving the plea of his own free will because he was in fact guilty. The Court asked Downs if he understood the maximum sentence he could receive by pleading guilty was thirty years in prison. The Court asked Downs if he understood he faced a minimum mandatory sentence of ten years incarceration. The Court also asked Downs if he was satisfied with his counsel's representation. Finally, the Court asked Downs if he was in fact, guilty of the charges. Downs answered each of these questions clearly and affirmatively.
Transcript of guilty plea at 4-9.
Furthermore, prior to entering his guilty plea, Downs filled out a Guilty Plea Form and signed it. Downs 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. Downs 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 Downs 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 Downs' counsel represented him in a competent and effective manner and that Downs has failed to demonstrate any prejudice stemming from the representation. I also find that Downs' guilty plea was entered knowingly and voluntarily. I recommend that the Court deny Downs' motion for postconviction relief.