Opinion
ID. No. 9802019556. No. K98-03-0220-R1.
January 21, 2000.
Upon Defendant's Motion For Postconviction Relief Pursuant to Superior Court Criminal Rule 61
Andrew J. Vella, Esq., Deputy Attorney General, Department of Justice, for the State of Delaware.
Mr. Arthur L. Waters, pro se.
COMMISSIONER'S REPORT AND RECOMMENDATION
The Defendant, Arthur L. Waters ("Waters") pled guilty on September 17, 1998 to one count of Kidnaping in the Second Degree, 11 Del. C. § 783. Waters was facing trial on the following charges: Assault in the First Degree (car jacking) and Kidnaping in the Second Degree. Pursuant to the Rule 11(e)(i)(c) plea agreement, Waters was sentenced to six years incarceration suspended after three years for varying levels of probation. Had Waters gone to trial and been convicted of both charges, he would have faced up to twenty years incarceration. Waters 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, Waters alleges several grounds for relief including that his trial counsel was ineffective.
Under Delaware Law this Court must first determine whether Waters 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 Waters' 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 Waters' 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. Several of Waters' 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 as to those claims at this point should Waters demonstrate that his counsel was ineffective and that he was prejudiced by counsel's actions.
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990).
In his first ground for relief, Waters claims that his arrest was "illegal." Waters did not raise this claim earlier nor does he assert any cause for his failure to have done so. Therefore, this claim is procedurally barred by Rule 61(i)(3). This claim is also meritless as Waters' guilty plea waived any claim based on an alleged "illegal arrest." In Haskins the Delaware Supreme Court stated that "[a] `voluntary and intelligent' plea agreement waives all defects allegedly occurring before the defendant enters the plea with the exception of subject matter jurisdiction." Clearly this ground for relief is meritless.
See Tollett v. Henderson, 411 U.S. 258, 267 (1973), Simon v. State, Del. Supr., No. 224, 1997, Veasey, C.J. (August 10, 1992) (ORDER), Haskins v. State, Del. Supr., No. 188, 1991, Moore, J. (August 19, 1991) (ORDER), Downer v. State, Del. Supr., 543 A.2d 309, 312-13 (1988).
Haskins, supra, at 2-3.
Waters' second claim for relief similarly alleges error with respect to his waiver of indictment. This claim was not raised earlier and is thus barred by Rule 61(i)(3). Even on the merits, however, this claim is meritless as Waters waived the claim when he plead guilty. Finally, Waters has made no concrete allegations of prejudice as to either his first or second grounds for relief.
See Petition of Palmer, Del. Supr., No. 298, 1996, Hartnett, J., (August 19, 1996) (ORDER). See also Henderson, supra, Simon, supra, Haskins, supra, Downer, supra.
Waters' third ground for relief is that his counsel coerced him into pleading guilty. His fourth contention is similar, alleging that his counsel and the State manipulated him into pleading guilty. Both of these contentions superficially raise the issue of ineffective assistance of counsel. To prevail on his claims of ineffective assistance of counsel, Waters 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, (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 Waters 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 Waters' contention that he did not knowingly enter his plea or that his counsel and the State "manipulated" him into entering the clearly beneficial plea agreement. Waters was facing trial on two charges and risked being sentenced to twenty years incarceration. Waters' counsel was able to negotiate a plea bargain with the State at the final case review to limit Waters' period of incarceration to just three years. Waters and his attorney discussed the case prior to the entry of the plea. The plea bargain was clearly advantageous to Waters. Counsel's representation was certainly well within the range required by Strickland. Additionally, when Waters 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, Waters 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 Waters was somehow deficient, Waters 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. Waters simply asserts that his counsel didn't do enough in an attempt to show prejudice. Waters does not suggest what more counsel could have done. This statement is insufficient to establish prejudice. Waters' current self-serving claims of innocence are not credited. Waters 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 Waters alleges his plea was involuntary, the record clearly contradicts Waters' 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, the Court asked Waters whether he understood the nature of the charges, the consequences of his pleading guilty and whether he was voluntarily pleading guilty. The Court asked Waters 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 Waters if he had discussed the guilty plea and its consequences fully with his attorney. The Court asked Waters if he was giving the plea of his own free will because he was in fact guilty. The Court asked Waters if he understood the maximum sentence he could receive by pleading guilty was thirty years incarceration. The Court also asked Waters if he was satisfied with his counsel's representation. Finally, the Court asked Waters if he was in fact, guilty of the charge. Waters answered each of these questions clearly and affirmatively.
Godinez v. Moran, 113 S.C-1 2680, 2687 (1993).
Transcript of guilty plea at 3-6.
Furthermore, prior to entering his guilty plea, Waters filled out a Guilty Plea Form in his own handwriting. Waters 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. Waters is bound by the statements he made on the signed Guilty Plea Form unless he proves otherwise by clear and convincing evidence. As to Waters' unsupported allegation that his counsel and the State "manipulated the criminal process" his complete lack of any evidence to substantiate this claim dooms it to failure. Consequently, I confidently find that Waters 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, 3. (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).
In Waters' fifth ground for relief he claims the Court's denial of his motion for Reduction of Sentence "was not justified and lacked merit." Waters failed to raise this ground on appeal and has failed to allege cause for his failure, therefore, this ground is barred by Rule 61(i)(3). Additionally, since under Criminal Rule 35 any decision concerning sentence modification is within the discretion of the Court. Waters cannot demonstrate any prejudice.
See Shy v. State, Del. Supr., 246 A.2d 926 (1968).
Waters' final allegation is a purely conclusory claim that there were "due process errors." Waters makes no attempt to give any factual basis for these phantom "errors." This claim is not only barred by Rule 61(i)(3), but it is entirely meritless and must fail.
I find that Waters' counsel represented him in a competent and effective manner and that Waters has failed to demonstrate any prejudice stemming from the representation. I also find that Waters' guilty plea was entered knowingly and voluntarily. As to Waters' remaining claims, they are all barred by Rule 61(i)(3). I recommend that the Court deny Waters' motion for postconviction relief.