Summary
stating that a motion for postconviction relief is not the appropriate means to obtain a modification of sentence
Summary of this case from State v. NobleOpinion
ID No. 0403012959.
Submitted: May 3, 2007.
Decided: July 5, 2007.
Upon Defendant's Motion for Postconviction Relief.
DENIED.Shawn E. Martyniak, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Marcus J. Johnson, Smyrna, Delaware, pro se.
ORDER
This 5th day of July 2007, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. On March 16, 2004, police found Defendant and Richard Jones in a car facing west in the eastbound lane of Parma Avenue in New Castle, Delaware. Defendant was in the driver's seat and Jones was in the passenger seat. A search of the vehicle produced 26.21 grams of cocaine under the passenger seat and a paper bag containing a scale and baggies behind the passenger seat. Defendant was arrested and subsequently indicted on the charges of Trafficking in Cocaine, Possession with Intent to Deliver a Narcotic Schedule II Controlled Substance ("PWID"), Use of a Vehicle for Keeping Controlled Substances, Possession of Drug Paraphernalia, Displaying an Expired Temporary Registration Plate, and Driving While License is Suspended and/or Revoked. A jury found Defendant guilty of all charges on October 5, 2005.
2. The Court sentenced Defendant on May 19, 2006 to three years at Level 5 on the PWID charge, two years at Level 5 on the trafficking charge, and probation on the remaining charges. The Supreme Court affirmed his conviction on December 22, 2006.
Johnson v. State, 2006 WL 3759403, at *1 (Del.Supr.) (finding "no merit" to Defendant's appeal).
3. Defendant filed this timely motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61") on January 16, 2007. He subsequently amended his motion on January 22 and again on January 29. His motion, as amended, alleges four grounds for relief: (1) insufficient evidence to sustain his conviction; (2) improper references to Defendant's decision not to testify; (3) ineffective assistance of counsel; and (4) double jeopardy. On February 2, 2007 the Court informed Defendant that it would not accept any further amendments to his motion.
4. Defendant's first contention is that there was insufficient evidence produced at trial to sustain his conviction. This allegation was not raised on direct appeal, therefore this claim will be barred by Superior Court Criminal Rule 61(i)(3) unless Defendant can show both cause for relief from the procedural default and prejudice from a violation of his rights. This procedural bar can also potentially be overcome if Defendant can demonstrate the court lacked jurisdiction or "a colorable claim that there was a miscarriage of justice because of a constitutional violation."
Superior Court Criminal Rule 61(i)(3).
Id. at 61(i)(5).
5. There was sufficient evidence in this case to for the jury to find Defendant guilty on all of the charges. The Supreme Court noted that that the facts "support the jury's finding that the drugs belonged to [Defendant] and not to Jones." Consequently, Defendant's first contention is meritless and otherwise barred by Rule 61(i)(3).
Johnson v. State, 2006 WL 3759403, at *2 (noting that "this was not a very close case").
6. Defendant's second ground argues that the State improperly referred to Defendant's decision not to testify. This ground was also not raised on appeal and therefore is potentially barred by Rule 61(i)(3). In his closing remarks the State declared that "[Mr Jones'] story was, they weren't my drugs, there's two people in that car, Mr. Jones and [Defendant], and the drugs were in the passenger seat, Mr. Jones told you they are not my drugs. It's for you, the jury to come to a conclusion about whose drugs those were." The Court then proceeded to jury instructions where the jury was instructed that Defendant's election not to testify could not be considered as an indication of guilt.
7. "The State may not invite any inference of the defendant's guilt merely from his own failure to testify." However, the State is "free to comment on the evidence and the reasonable inferences therefrom and, generally speaking, a characterization of evidence as uncontradicted is permissible." The State's remarks in this case restated Jones' testimony; they did not prejudicially utilize Defendant's silence to create an inference of guilt. Therefore this claim is barred by Rule 61(i)(3) and does not entitled Defendant to relief.
Mills v. State, 732 A.2d 845, 849 (Del. 1999).
Hughes v. State, 437 A.2d 559, 573 (Del. 1981) (internal citations omitted).
Id. at 574 (holding that "we are unable to say that the prosecution prejudicially utilized defendant's silence to create an inference of guilt" when it described the evidence as essentially "unrebutted").
8. Defendant's next ground for relief is ineffective assistance of counsel. Because Defendant could not have raised this claim on direct appeal, this ground is not procedurally barred by Rule 61(i)(3). To succeed on an ineffective assistance of counsel claim, Defendant must show both (a) "that counsel's representation fell below an objective standard of reasonableness" and (b) "that there is a real probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Allegations that are entirely conclusory are legally insufficient to prove ineffective assistance of counsel; the defendant must allege concrete allegations of actual prejudice and substantiate them. Furthermore, when evaluating counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance."
Stickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Jordan v. State, 1994 WL 466142 (Del Supr.) (citing Younger v. State, 580 A.2d 552 (Del. 1990)).
Id. at 689.
9. Defendant asserts that his counsel was ineffective for providing incorrect sentencing information to him, which impacted his decision to go to trial rather than take a plea. This contention is without merit. The Court itself advised Defendant before trial that there was a three year minimum mandatory if convicted of PWID and a two year minimum mandatory if convicted of the trafficking charge. Defendant had an opportunity to accept a plea after he was informed of these sentencing guidelines and he elected to go to trial. Therefore he is not entitled to relief on this ground.
10. Defendant also argues that his counsel should have objected to an officer's testimony which referred to a 911 call. Defendant does not explain what this testimony was or why it was prejudicial. Thus, this claim is conclusory and does not entitle him to relief.
11. In addition, Defendant alleges that his counsel, on appeal, "lead [the] Supreme Court to infer defendant Jones was removed from the vehicle first." However, it is not clear why this fact was important or how it would have affected the outcome of his appeal. This conclusory claim also fails to demonstrate ineffective assistance of counsel.
12. Defendant's final ground for relief is that his sentence, imposed pursuant to 16 Del. C. § 4763 violated double jeopardy. However, the purpose of Rule 61 is to provide a procedure by which a defendant can "set aside a judgment of conviction or a sentence of death on the ground that the court lacked jurisdiction or on any other ground that is a sufficient factual and legal basis for a collateral attack upon a criminal conviction or a capital sentence." This allegation does not collaterally attack his judgment; rather, he appears to be seeking a modification of his sentence. A motion for postconviction relief is not the appropriate means to obtain this relief.
Superior Court Criminal Rule 61(a)(1).
See State v. Costango, 2002 WL 234748 (Del.Super.) (summarily dismissing a motion for postconviction relief where the actual relief sought was a modification of sentence). The Court also notes the contention that 16 Del. C. § 4763 somehow violates double jeopardy is meritless. Demby v. State, 2006 WL 1805877, at *2 (Del.Supr.) (holding that the defendant's sentence imposed pursuant to 16 Del. C. § 4763 did not violate double jeopardy).
13. Therefore, for the reasons stated above, Defendant's motion for postconviction relief is DENIED.
IT IS SO ORDERED.