Opinion
Cr. A. Nos. VN94-03-1312 and VN99-09-0642.
Date Submitted: April 17, 2003.
Date Decided: June 2, 2003.
Upon Defendant's Pro Se Motion for Postconviction Relief: I.D. No. 30209462DI and 9908025423.
DENIED.
ORDER
This 2nd day of June, 2003, upon consideration of the defendant's Motion for Postconviction Relief pursuant to Superior Court Criminal Procedure Rule 61, it appears to this Court that:
1. On January 19, 1993, the movant, David L. Mayfield ("Defendant"), was indicted by a Grand Jury and charged with three counts of Unlawful Sexual Contact Second Degree in violation of 11 Del. C. § 768, Unlawful Sexual Intercourse First Degree in violation of 11 Del. C. § 775, Sexual Harassment in violation of 11 Del. C. § 763, Attempted Unlawful Sexual Contact Second Degree in violation of 11 Del. C. § 531, Criminal Solicitation First Degree in violation of 11 Del. C. § 503, and Harassment in violation of 11 Del. C. § 1311 (Cr.A. No. VN94-03-1312). Defendant entered into a plea agreement on January 29, 1996, whereby, in exchange for all of the remaining charges against him being nolle prossed by the State, Defendant plead guilty to the lesser included offense of Unlawful Sexual Intercourse Third Degree and to Sexual Harassment. The Court sentenced Defendant on March 29, 1996 to eight years incarceration at Level V, suspended for eight years at Level IV Home Confinement; after serving nine months at Level IV, the remainder of the sentence was suspended for seven years and three months at Level III probation. In addition, Defendant agreed to: 1) have no contact with the victims; 2) have no unsupervised contact with children eighteen years or younger; 3) have no involvement in any type of organization involving children, either as an employee or as a volunteer; 4) undergo substance abuse evaluation and treatment; and 5) to undergo psychological evaluation and treatment.
2. Subsequently, Defendant was adjudged guilty of violating his probation on September 21, 1999 (Cr. A. No. VN99-09-0642, Possession of Cocaine), on June 28, 2001, and on October 1, 2002. On October 1, 2002, the Superior Court issued a Violation of Probation Sentence Order sentencing Defendant to six years at Level V, suspended after serving three years at Level V for three years at Level IV Plummer Center, suspended after serving six months at Level IV for the balance at Level III probation. In addition, the Court found Defendant in violation of his probation of Cr. A. No. VN99-09-0642 and sentenced him to one year and nine months at Level V, suspended after serving one year at Level V for nine months at Level III.
3. On October 30, 2002, Defendant filed a Notice of Appeal to the Delaware Supreme Court from this Court's Order revoking his probation and reimposing the original sentencing terms of his criminal convictions. Subsequently, Defendant's counsel filed a motion to withdraw as counsel representing that there were no arguable issues to support Defendant's appeal. In his appeal, Defendant asserted that: 1) his probation officer was prejudiced against him and testified falsely against him at the violation of probation hearing; 2) a different judge should have presided at the violation of probation hearing; and 3) his violation of probation sentence was too harsh. The Supreme Court found that there was no merit to any of these contentions and affirmed the judgment of this Court.
4. Defendant has filed this pro se motion for postconviction relief on April 17, 2003, wherein he seeks to set aside a judgment of criminal conviction based on violations of his constitutional rights under the United States Constitution and the Delaware Constitution. Defendant asserted four grounds for relief in support of his contentions that his rights had been violated. Defendant claimed ineffective assistance of counsel as grounds one and two, arguing that, "[c]ounsel was ineffective in his failure to provide petitioner with an understanding of the law in relation to the facts and to advise him meaningfully of his options," and that "[c]ounsel was ineffective in not explaining prior to the elements required to be established for crime charged." Next, Defendant averred that an improper colloquy transpired at the hearing where he entered his guilty plea. Specifically, "[t]he court accepted plea of guilty without making inquiry as to the acceptance of guilt of the Defendant understanding of the nature of charges." Finally, as his fourth ground for relief, Defendant asserted the existence of an "unfulfilled agreement" because, "[d]efense counsel and probation officer led defendant to believe that he would be receiving a sentence for violation of probation within the T.I.S. guidelines."
Defendant's Motion for Rule 61 Postconviction Relief, at 3 (hereinafter "Def. Mot. at ___.").
Def. Mot. at 3.
Def. Mot. at 4.
5. Under Delaware law, when considering a motion for postconviction relief, this Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61(i) before it may consider the merits of defendant's postconviction relief claim. To protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim where a procedural bar exists.
Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Gattis, 1995 WL 790961, at *2 (citing Younger, 580 A.2d at 554).
6. Upon initial review of Defendant's motion for postconviction relief, the Court finds that Defendant has failed to successfully overcome the procedural hurdles imposed by Rule 61. First, because this postconviction motion was filed more than seven years after the judgment of conviction became final, he is procedurally barred from relief under Rule 61(i)(1). The time bar of Super.Ct.Crim.R. 61(i)(1) provides:
A motion for postconviction relief may not be filed more than three years after the judgment of conviction is final or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than three years after the right is first recognized by the Supreme Court of Delaware or by the United States Supreme Court.
Super.Ct.Crim.R. 61(i)(1).
Since the instant motion was filed more than three years after his conviction became final and Defendant has not asserted a new retroactive rule under any circumstance, his motion is procedurally barred under Rule 61(i)(1).
Within the purview of Rule 61(i)(1), a conviction becomes final for purposes of postconviction review:
(a) for a defendant who takes a direct appeal of the conviction, when the direct appeal process is complete (the date of the issuance of the mandate under Supreme Court Rule 19); or
(b) for a defendant who does not take a direct appeal, when the time for direct appeal has expired (30 days after sentencing); or
(c) if the United States Supreme Court grants certiorari to a defendant from a decision of this Court, when that Court's mandate issues. Jackson v. State, 654 A.2d 829, 833 (Del. 1995).
7. The Rule 61 time bar is not an absolute prohibition to post-conviction relief petitions filed three years after conviction. Rule 61(i)(5) may potentially overcome the procedural bars of Rule 61. Rule 61(i)(5) "[i]s a general default provision, and permits a petitioner to seek relief if he or she was otherwise procedurally barred under Rules 61(i)(1)-(3)." Rule 61(i)(5) provides:
Bailey, 588 A.2d at 1125 (citing Boyer v. State, 562 A.2d 1186, 1188 (Del. 1989)).
Bailey, 588 A.2d at 1129.
The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall not apply to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Super.Ct.Crim.R. 61(i)(5).
The "miscarriage of justice" or "fundamental fairness" exception contained in Rule 61(i)(5) is "[a] narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception may also apply to a claim that there has been a mistaken waiver of fundamental constitutional rights, such as a mistaken waiver of rights to trial, counsel, confrontation, the opportunity to present evidence, protection from self-incrimination and appeal. Accordingly, when a petitioner puts forth a colorable claim of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.
Younger, 580 A.2d at 555 (citing Teague v. Lane, 489 U.S. 288, 297-99 (1989)) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Id. (citing comparatively Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (denoting that fundamental fairness exception of Rule 61(i)(5) applies where petitioner shows he was deprived of a substantial constitutional right).
8. Since the Defendant is procedurally barred under Rule 61(i)(1), his only alternative means of relief is to proceed under Rule 61(i)(5). As such, "[i]n a postconviction proceeding, the petitioner has the burden of proof and must show that he has been deprived of a substantial constitutional right before he is entitled to any relief." In other words, '[t]he petitioner bears the burden of establishing a 'colorable claim' of injustice. (citation omitted). While 'colorable claim' does not necessarily require a conclusive showing of trial error, mere 'speculation' that a different result might have [sic] obtained certainly does not satisfy the requirement." Defendant has made no claim that the court lacked jurisdiction. He therefore has the burden of presenting a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.
Bailey, 588 A.2d at 1130 (citing Younger v. State, 580 A.2d 552, 555 (Del. 1990)) (emphasis added).
State v. Getz, 1994 WL 465543, at *11 (Del.Super.Ct.).
If a movant presents a genuine "colorable claim," it will be sufficient to avoid dismissal of the claim and will require the Court to examine the evidentiary issues. Once a movant makes a showing that he is entitled to relief, thereby avoiding summary dismissal of his motion, an evidentiary hearing is not necessarily required. The Court may instead elect to examine the evidentiary issues presented in the submissions of the party and in the record without a hearing. Also, whether the movant has presented a "colorable claim" may be determined on the basis of the postconviction motion itself, prior to any responses being filed. Finally, the question of whether a movant has presented a "colorable claim" is a question of law that is reviewed by the Delaware Supreme Court de novo.
Super.Ct.Crim.R. 61(d)(4) states:
Summary dismissal. If 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.
Super.Ct.Crim.R. 61(h) states in part:
Evidentiary hearing. (1) Determination by court. After considering the motion for postconviction relief, the state's response, the movant's reply, if any, the record of prior proceedings in the case, and any added materials, the judge shall determine whether an evidentiary hearing is desirable . . . (3) Summary Disposition. If it appears that an evidentiary hearing is not desirable, the judge shall make such disposition of the motion as justice dictates.
Webster, 604 A.2d at 1366.
9. Turning to the substantive claims of Defendant's motion, in an attempt to prevail over the procedural time bar and invoke the fundamental fairness exception, Defendant alleged in grounds one and two of his motion that he received ineffective assistance of counsel in violation of his Sixth Amendment right. Specifically, he argued that his counsel did not provide him with an explanation of the law and facts surrounding the charges against him and did not enumerate on the options available to him. Second, Defendant asserted that his counsel did not, prior to his plea agreement, explain to him the legal elements that needed to be established to substantiate the crimes charged against him.
Ordinarily, an allegation of ineffective assistance of counsel is the type of claim not subject to the procedural default rule and is more aptly considered under the guidelines set forth in Strickland v. Washington, in part because the Delaware Supreme Court will not generally hear such claims for the first time on direct appeal unless the claim was adequately raised in the lower court. But, Defendant bears the burden of substantiating the existence of a constitutional violation under Rule 61(i)(5). Also, the fundamental fairness exception in Rule 61(i)(5) is extremely narrow in scope and only applies to those limited circumstances when a right relied upon has been recognized for the first time after direct appeal. Accordingly, Defendant must demonstrate more than his ineffective assistance of counsel claim. He must also demonstrate that the ineffectiveness of his attorney prejudiced the fundamental fairness of the trial. Upon review of the record in this case, Defendant's conclusory allegations do not support a showing of ineffective assistance of counsel pursuant to the requirements of Rule 61(i)(5) enumerated above and as set forth in Younger and it progeny.
See Younger v. State, 580 A.2d 552 (Del. 1990).
See Supr.Ct.R. 8; Wright v. State, 513 A.2d 1310, 1315 (Del. 1986); Harris v. State, 293 A.2d 291, 293 (Del. 1972).
See supra note 15.
See supra note 11.
State v. Laws, 1995 WL 411710, at *2 (Del.Super.Ct.).
Younger v. State, 580 A.2d 552 (Del. 1990).
To prevail on his claim of ineffective assistance of counsel, Defendant must meet the two-prong test set forth in Strickland v. Washington. First, a criminal defendant who raises an allegation of ineffective assistance of counsel must show that counsel's representation fell below an objective standard of reasonableness. The defendant must demonstrate that counsel's performance was deficient. This entails demonstrating that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Further, it is the defendant's burden to show, under the totality of the circumstances, that "counsel was so incompetent that the accused was not afforded genuine and effective legal representation."
Strickland v. Washington, 466 U.S. 668 (1984); Larson v. State, 1995 WL 389718, at *2 (Del.Supr.); Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) accord; Albury v. State, 551 A.2d 53, 58 (Del. 1988) accord.
Strickland, 466 U.S. at 688.
Id. at 687.
Id.
Renai v. State, 450 A.2d 382, 384 (Del. 1982) (citations omitted).
Second, under Strickland, a defendant must show that there is a reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different; that is, defendant must show actual prejudice. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." The defendant must illustrate that the deficient performance prejudiced the defense. Stated another way, a defendant alleging prejudice must be able to show that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." In setting forth a claim of ineffective assistance of counsel, a defendant must make and substantiate concrete allegations of actual prejudice or risk summary dismissal.
Strickland, 466 U.S. at 694.
Id. at 687.
Id.
Id.
Righter v. State, 704 A.2d 262, 264 (Del. 1997); Younger, 580 A.2d at 556; Robinson v. State, 562 A.2d 1184, 1185 (Del. 1989).
A defendant's burden to establish a claim of ineffective assistance of counsel is difficult since there is a strong presumption that the attorney's conduct was professionally reasonable. This standard is highly demanding. In fairly assessing an attorney's performance, the standards enumerated in Strickland require that "every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Defendant must also "[o]vercome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Therefore, under Strickland, the Court's analysis must be comprised of two components: 1) whether defense counsel's performance was deficient; and 2) if so, whether the deficient performance resulted in prejudice that "so upset the adversarial balance between the defense and prosecution that the trial was rendered unfair and the verdict rendered suspect."
Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689); see also Larson, supra note 25, at *4; Flamer v. State, 585 A.2d 736, 753 (Del. 1990).
Flamer, 585 A.2d at 754.
Strickland, 466 U.S. at 689.
Id.
Lockhart v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Nix v. Whiteside, 475 U.S. 157, 175 (1986)).
In this case, Defendant's ineffective assistance of counsel contention amounts to nothing more than conclusory claims and unfounded accusations. The Court has reviewed the transcript of the plea and sentencing hearing, as well as the Truth In Sentencing Guilty Plea Form, and finds that Defendant's contentions are unsupported by the record in this case.
Having concluded that defense counsel's behavior was not below the objective standard of reasonableness, the Court need not consider the second-prong of actual prejudice under Strickland (reasonable degree of probability that, but for counsel's unprofessional errors, the outcome of the proceeding would have been different). Moreover, the Court will not address claims for relief and prejudice that are conclusory and unsubstantiated. In essence, Defendant's claim of ineffective assistance of counsel is without merit. Since he failed to establish a violation of his Sixth Amendment right he has also failed to authenticate a claim that there was a "miscarriage of justice" because of a constitutional violation pursuant to Rule 61(i)(5).
Strickland, 466 U.S. at 694.
Zimmerman v. State, 1991 WL 190298, at *1 (Del.Super.Ct.) (citing State v. Conlow, 1990 WL 161241, at *3 (Del.Super.Ct.)).
10. In a further attempt to avoid application of the Rule 61(i)(1) time bar, Defendant argues that the plea colloquy was "improper" for failure of the Court to make the proper inquiry regarding the Defendant's understanding of the nature of the charges leveled against him and acceptance of the plea agreement. Contrary to Defendant's contentions, and as evidenced by the record, Defendant was advised by this Court regarding his plea agreement and plea negotiations.
Defendant voluntarily, knowingly and intelligently, entered his plea of guilty to a lesser included offense, before a judge of this Court. The transcript of the plea colloquy leaves no doubt that the Court adequately determined on the record that the Defendant was entering his plea knowingly and voluntarily. Upon questioning by the trial judge, the Defendant acknowledged his understanding of the charges against him and that he was entering the plea because he was, in fact, guilty of those charges. The Defendant acknowledged that he comprehended the consequences of entering a guilty plea, including, but not limited to, the range of penalties for the charges involved as well as that he would be waiving his rights by entering a guilty plea. Defendant has failed to substantiate or make an evidentiary showing that he did not understand the nature and associated penalties of the charges or that he suffered prejudice amounting to a colorable claim of a miscarriage of justice.
11. Finally, Defendant's claim of an "unfulfilled agreement" regarding the sentence that he would receive for violating his probation contravenes the permitted statutory assertions for relief as defined in Rule 61. Pursuant to 61(b)(3), Defendant cannot challenge the judgment of the original 1996 criminal conviction and the judgment of the October 1, 2002 Violation of Probation Sentence Order in the same motion. But, in an effort to promote judicial efficiency, and in anticipation of the Defendant filing a subsequent Rule 61 motion for postconviction relief based on this violation of probation hearing claim, the Court will consider Defendant's fourth and final ground for relief.
Rule 61(b)(3) Multiple convictions. A motion shall be limited to the assertion of a claim for relief against one judgment of conviction or, if judgments of conviction were entered on more than one offense at the same time because of a plea agreement or joinder of offenses at trial, against multiple judgments entered at the same time. Judgments entered at different times shall not be challenged in one motion but only by separate motions. Super.Ct.Crim.R. 61(b)(3).
It has long been established in the State of Delaware that, "[j]ust as probation is an 'act of grace,' revocation of probation is an exercise of broad discretionary power;. . . ." Moreover, all that a court requires to revoke a defendant's probation is some competent evidence to prove the violation asserted. In essence, '[a]ll that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation.' In Defendant's case, there was an abundance of competent evidence to substantiate the violations asserted by his probation officer and as admitted by the Defendant, himself, at the October 1, 2002 violation of probation hearing. At the hearing, Defendant admitted under oath that he tested positive for cocaine on June 6, 2002, that he had terminated his participation in the Crest program, and that he had stopped seeing his probation officer because he did not want to "take the chance" he would be violated as a result of another urinalysis.
Brown v. State, 249 A.2d 269, 271 (Del. 1968) (citing Burns v. United States, 287 U.S. 216, 221 (1932).
Brown, 249 A.2d at 272 (emphasis added).
Id. at 272 (citing Manning v. United States, 161 F.2d 827, 829 (5th Cir. 1947)).
Further, Section 4334 of Title 11 of the State of Delaware's criminal sentencing, probation, parole and pardons statute provides, in part:
The court shall cause the probationer to be brought before it without unnecessary delay, for a hearing on the violation charge. The hearing may be informal or summary. If the violation is established, the court may continue or revoke the probation or suspension of sentence, and may require the probation violator to serve the sentence imposed, or any lesser sentence . . .
DEL. CODE ANN. tit. 11, § 4334(c) (2001 Supp. 2002).
The Court is unaware of the existence of any "agreement" between defense counsel and Defendant's probation officer regarding the terms and conditions of the sentences to be imposed for Defendant's violations of probation. Defendant had violated his probation three times over a period of three years and it is entirely within the discretionary power of this Court to revoke Defendant's probation for violations accordingly. While Section 4334 does not empower the Court to enlarge a period of probation once imposed, revocation of probation is an exercise of broad discretionary power. In addition, the sentences imposed on Defendant for his violations of probation were contained within the T.I.S. guidelines. In this regard, Defendant has failed to demonstrate a colorable claim in support of a miscarriage of justice.
See Tiller v. State, 257 A.2d 385 (Del. 1969) (holding that the Superior Court lacks the power to extend a probation period, since probation is a statutory creature and its implementation must be in accordance with the powers found within the statute).
Hence, there was no denial of Defendant's fundamental constitutional rights and his claim is without merit. Accordingly, since Defendant failed to establish a violation of his constitutional rights, he has also failed to authenticate a claim that there was a "miscarriage of justice" because of a constitutional violation pursuant to Rule 61(i)(5).
12. In conclusion, Defendant's motion was filed more than three years after the judgment of conviction was finalized and Defendant has failed to demonstrate the existence of a constitutional violation resulting in a "miscarriage of justice" or undermining the "fundamental fairness" of the proceedings. Thus, the motion must be denied on procedural and substantive grounds.
Super.Ct.Crim.R. 61(i)(1).
Super.Ct.Crim.R. 61(i)(5).
For all the foregoing reasons, Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is procedurally barred under 61(i)(1) and 61(i)(5). Accordingly, the Motion for Postconviction Relief Pursuant to Superior Court Criminal Rule 61 is hereby DENIED.
IT IS SO ORDERED.