Opinion
ID No. 9712002287.
Submitted: June 10, 1999.
Decided: September 9, 1999.
UPON DEFENDANT'S AMENDED PRO SE MOTION FOR POSTCONVICTION RELIEF. DENIED
ORDER
This 9th day of September, 1999, upon consideration of Defendant's pro se Amended Motion for Postconviction Relief, it appears to this Court that:
1. Donta E. Vickers (Defendant) has filed this pro se Amended Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. This Court has allowed the original Motion to be amended and will refer to both motions collectively as the "Amended Motion." Defendant alleges that his conviction should be vacated and that he should be granted a new trial based on the following three grounds: (1) the Superior Court lacked jurisdiction because Defendant never "knowingly waived his right to be prosecuted by an indictment;" (2) defense counsel's assistance was ineffective; and (3) police illegally detained Defendant "for over six hours without charging him." For the following reasons, Defendant's Amended Motion is DENIED.
2. On December 3, 1997 Defendant was arrested for Robbery First Degree. On January 7, 1998, Defendant signed a form waiving his right to prosecution by indictment. The State proceeded against Defendant by information on one count of Robbery First Degree ( 11 Del. C. § 832). A jury trial was held on June 1, 1998 through June 2, 1998. Defendant was found guilty, and on July 24, 1998, this Court sentenced Defendant to seven (7) years at Level 5, suspended after 4 years with 3 years probation at different levels. The conviction was subsequently affirmed on January 8, 1999 by the Delaware Supreme Court after direct appeal. On February 22, 1999 Defendant filed a pro se Motion for Postconviction Relief. On March 31, 1999 Defendant's prior counsel, Sandra W. Dean, Esquire, filed an affidavit responding to the factual allegations of the original motion pursuant to Superior Court Criminal Rule 61(g)(2). On April 28, 1999 the State responded to Defendant's Motion. On June 10, 1999, Defendant filed a pro se Amended Motion for Postconviction Relief. The Court has permitted the amendment and did not order further responses by either Defendant's prior counsel or by the State.
See State v. Vickers, Del. Super., ID# 9712002287, Cooch, J. (July 24, 1998) (ORDER).
Vickers v. State, Del. Supr., 725 A.2d 443 (1998) (ORDER).
3. The first ground of Defendant's Amended Motion alleges that the Superior Court lacked jurisdiction. The basis for Defendant's claim appears to be that he "never knowingly waived his right to be prosecuted by indictment." He further asserts that a Waiver of Indictment was never presented to him by counsel. Under Superior Court Criminal Rule 7, offenses within the exclusive jurisdiction of the Superior Court shall be prosecuted by indictment; however, offenses other than capital crimes may be prosecuted by information if the defendant waives the right to an indictment. It is clear from the record in this case that Defendant waived prosecution by indictment and consented to prosecution by information. The Kent County Prothonotary file contains the Superior Court of Kent County "Waiver of Indictment" form which states in pertinent part that:
See Super. Ct. Crim. R. 5(d) and 7(b).
Donta Vickers, the defendant named in the within Affidavit of Probable Cause, being advised of the nature of the charge or charges and knowing his rights, hereby waives in open Court prosecution by indictment, and consents that the proceedings may be by information instead of indictment.
The document has Defendant's apparent signature at the bottom along with the signature of Sandra Dean, counsel for Defendant. He has not denied signing that document. Ms. Dean has averred in her affidavit that "[t]he signature on the waiver is [Defendant's]." The waiver form clearly states that Defendant has been advised of the nature of the charges, that he knew his rights and consented to the proceedings by information.
In the context of guilty pleas, defendants are held bound by statements made on signed guilty plea forms unless they prove otherwise by clear and convincing evidence. This reasoning applies also to documents executed by criminal defendants in waiving their right to indictment. An "attempt to raise a jurisdictional or constitutional claim with respect to the failure to indict is without merit given [a defendant's] signed waiver." Furthermore, there is no evidence to suggest that the waiver was "illegally enforced [sic] by the defense counsel and the State's prosecutor" as the Defendant claims. The first ground of Defendant's Amended Motion is denied on the merits.
Hickman v. State, Del. Supr., 298, 1994, Veasey, C.J. (Oct. 11, 1994) (ORDER); Wright v. State, Del. Supr., No. 400, 1991, Walsh, J. (Feb. 20, 1992); Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (Jan. 4. 1990) (ORDER); see also Sullivan v. State, Del. Supr., 636 A.2d 931, 938 (1994) (ruling that the fact that defendant had 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).
See generally In the Matter of Petition of Spruance for Writ of Prohibition, Del. Supr., No. 160, 1995, Hartnett, J. (May 19, 1995) (ORDER) (holding that where it was clear from signed waiver that had defendant submitted himself to jurisdiction of the Superior Court under Super. Ct. Crim. R. 5(d) and 7(b), defendant's claim that the Superior Court lacked jurisdiction was clearly without merit); Blanchfield v. State, Del. Supr., No. 97, 1994, Veasey, C.J. (Oct. 18, 1994 (ORDER) (holding that defendant may waive right to a preliminary hearing and an indictment, and that where defendant signed waiver, he submitted himself to the Superior Court's jurisdiction).
State v. Harding, Del. Supr., ID# 9601016813, Ridgely, J. (Mar. 16, 1999) (ORDER) (accepting the Comm'r Report of Feb. 4, 1999).
4. With respect to grounds two and three: before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Court Criminal Rule 61. Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal and cause the movant to be notified." Claims for postconviction relief which are entirely conclusory may be summarily dismissed on that basis.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (199) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim R. 61(d)(4); See e.g., Jordan v. State, Del. Supr., No. 270, 1994, Walsh, J. (August 25, 1994) (ORDER); State v. Brittingham, Del. Super., Cr.A. No. IN91-01-1009-RI, Barron, J. (December 29, 1994) (ORDER) at 3 ( citing Younger v. State, 580 A.2d at 556) (holding that conclusory allegations are legally insufficient to warrant postconviction relief).
5. The second ground of Defendant's Amended Motion alleges "Ineffective Assistance of Counsel." In the original Motion, Defendant lists several allegations as the basis for his claim. These are set forth in toto as follows:
"Counsel failed to investigate facts as to prepare adequate defense. Counsel failed to challenge states introduction of coat into evidence [,] failed to subpoena defense witnesses that could testify on behalf of defendant that could have proved that defendant could not have committed the crime. Numerous issues that could have been presented at trial were not because counsel failed to raise an objection. Based on counsel's failure to adequately test the case defendant lost his right to effective assistance of counsel on direct appeal as right [sic].
To satisfy the cause and prejudice requirement, defendant states that only due to the deficient performance of his counsel was he found guilty. The cause being violation of defendant's Sixth Amendment right and prejudice is that but for counsel's deficient representation the defendant would not have been found guilty or at least he would have been successful on direct appeal."
In the Amended Motion, Defendant's lists seven allegations as the basis for this claim. These are set forth in toto as follows:
"`An attorney performance is judge [sic] on the basis of fact's known to him or her, and the rules of law and procedures, he or she is held to know, as an attorney representing defendant's in criminal proceeding. Unless charged with serious offense has counsel able [sic] to invoke the procedural and substantive safeguards that distingush [sic] our system of justice, a serious risk of injustice infects [sic] the trial itself' Vela v. Estelle, 70 F.2d 954 (5th Cir. 1983). Thus it can be concluded that Mr. Swierbinksi and Ms. Dean's performance demonstrated the relative factors of the above case in question as well as executing the standards of U.S. v. Tucker, 716 F.2d 576 (9th Cir. 1983), Goodwin v. Balkom, 684 F.2d 794 (11th Cir. 1982), Murray v. Carrier, 91 L.Ed 397 (1986) DuLuca v. Lord, 77 F.3d 578 (3rd Cir. 1996)., Const.Law. 268(10) and Crim. Law (633(1)., [sic] citing the following issue's [sic]."
"(A) Counsel's failure to raise claim of insufficient evidence."
"(B) Counsel's failure to conduct pre-trial or trial investigation or discovery."
"(C) Counsel's failure to research of case history, interview or review the witnesses or cross-examine their testimony at trial. If counsel had, prejudicial information would have came forth concerning the identification of the victims accellant [sic] as being clean shaven, black male. Defendant contends that his arrest photo's show him in a full beard and mustache, thus defendant couldn't [sic] have been the accellant [sic]."
"(D) Counsel's failure to call defense witness present at trial. (Shavell D. Miller [,] and failure to subponea [sic] (Ahmad Dorsey) who was last with defendant which counsel had been told to subponea [sic]."
"(E) Counsel's failure to object to prosecutions [sic] false statement of prior plea of Attempted Murder in 1995 at Bail Hearing and prior of 1994 at trial."
"(F) Counsel's failure to request a continuance to get arresting officer testimony."
"(G) Trial counsel abandoned defendant's only defense and inherently prejudicial where counsel concedes only factual issue in dispute in closing argument and, deprived defendant of effective assistance of counsel and due process."
Defendant's above allegations of ineffective assistance of counsel are conclusory. Defendant proffers no factual support for this multi-part second ground of the Amended Motion. Defendant merely claims in a conclusory manner that defense counsel has failed give effective assistance of counsel based solely on the above statements. The Court finds these contentions vague and entirely conclusory, warranting summary dismissal.
See n. 8.
6. The third ground of Defendant's Amended Motion claims that "Police held detained Defendant for over six hours without charging him." Defendant merely states that his rights were violated only because he was held for six hours without being charged. Nothing further on this ground is averred. The Court finds this contention vague and entirely conclusory, warranting summary dismissal.
7. For the reasons stated, Defendant's Amended Motion for Postconviction Relief is denied as to first ground and summarily dismissed as to the second and third grounds.
IT IS SO ORDERED.