Opinion
No. 370, 2011
02-21-2012
ALLEN J. FOOTE, JR., Defendant-Appellant, v. STATE OF DELAWARE, Plaintiff-Appellee.
Court—Superior Court of the State of Delaware in and for New Castle County Cr. ID No. 0710001779
Before STEELE, Chief Justice, HOLLAND and RIDGELY, Justices
ORDER
This 21st day of February 2012, upon consideration of the briefs of the parties and the record below, it appears to the Court that:
(1) The defendant-appellant, Allen J. Foote, Jr., filed an appeal from the Superior Court's June 28, 2011 order adopting the Superior Court Commissioner's June 10, 2011 report, which recommended that Foote's second motion for postconviction relief pursuant to Superior Court Criminal Rule 61 be denied. We find no merit to the appeal. Accordingly, we affirm.
Del. Code Ann. tit. 10, §512(b); Super. Ct. Crim. R. 62.
(2) The record before us reflects that, in April 2008, Foote pleaded guilty to one count each of Assault in the First Degree and Possession of a Firearm During the Commission of a Felony. As part of the plea agreement, the State dismissed a number of other assault, weapon and domestic violence-related charges. Foote was sentenced to a total of 35 years of Level V incarceration, to be suspended after 20 years for probation. Foote's convictions were affirmed by this Court on direct appeal.
Foote v. State, Del. Supr., No. 578, 2009, Jacobs, J. (June 16, 2010). Initially, there was no direct appeal filed on behalf of Foote. In January 2009, Foote filed his first motion for postconviction relief, arguing that his counsel had been ineffective for failing to file a direct appeal. The Superior Court re-sentenced Foote, thereby affording him the opportunity to file a timely direct appeal. On direct appeal, Foote's counsel filed a Rule 26(c) brief and this Court affirmed Foote's convictions.
(3) In his appeal from the Superior Court's denial of his second postconviction motion, Foote claims that a) he received ineffective assistance of counsel in connection with the guilty plea proceedings; b) he was illegally detained following execution of a flawed search warrant; and c) the Superior Court abused its discretion when it failed to conduct an evidentiary hearing in connection with its decision on his postconviction motion.
(4) In order to prevail on a claim of ineffective assistance of counsel in connection with a guilty plea, the defendant must demonstrate a reasonable probability that, but for his counsel's unprofessional errors, he would not have pleaded guilty but would have insisted on proceeding to trial. The defendant must make, and substantiate, concrete claims of actual prejudice.
Albury v. State, 551 A.2d 53, 60 (Del. 1988).
Younger v. State, 580 A.2d 552, 556 (Del. 1980).
(5) The transcript of Foote's guilty plea colloquy reflects that he confirmed that he thoroughly discussed his plea with his attorney and was satisfied with the advice he received. In the absence of clear and convincing evidence to the contrary, Foote is bound by those representations.Moreover, in light of the numerous charges against Foote and the evidence against him, including a graphic photograph of his victim's injuries, Foote received a clear benefit by accepting the State's plea agreement. There is no support for his claim that he was convinced to plead guilty solely due to alleged errors on the part of his counsel. We, thus, conclude that Foote's first claim is without merit.
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
(6) Foote's second claim that he was illegally detained following execution of a flawed search warrant is likewise unavailing. Foote's guilty plea, which the transcript clearly reflects was voluntary, constitutes a waiver of any alleged errors or defects occurring prior to the entry of the plea. As such, Foote has waived his claim of a flawed search warrant.
Downer v. State, 543 A.2d 309, 312-13 (Del. 1988).
(7) Foote's final claim is that the Superior Court abused its discretion by not scheduling an evidentiary hearing in connection with his postconviction motion. It is within the discretion of the Superior Court to determine whether an evidentiary hearing is necessary in order to decide a motion for postconviction relief. Having reviewed the record in this case, we conclude that the Superior Court acted well within its discretion when it determined that its decision on Foote's postconviction motion did not require an evidentiary hearing. Foote's third claim is, therefore, without merit.
Super. Ct. Crim. R. 61(h) (1) and (3).
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NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Myron T. Steele
Chief Justice