Opinion
ID Nos: 9704003319-R1, 30200866DI-R1.
Submitted: December 6, 1999.
Decided: December 21, 1999.
Upon Defendant's Motion for Postconviction Relief. Denied. Upon Defendant's Application for Credit Time. Granted. Sentence Imposed in IN97-04-0551 is Reduced.
Steven P. Wood, Esquire, Deputy Attorney General, Wilmington, Delaware, for the State.
Joseph M. Bernstein, Esquire, Wilmington, Delaware, for the Defendant.
MEMORANDUM OPINION
POSTURE OF CASE
On January 4, 1999, Paul T. Stigars filed a pro se Motion for Postconviction Relief under Super. Ct. Crim. R. 61. On February 8, 1999, the Court appointed Joseph M. Bernstein, Esquire, to represent Stigars concerning his postconviction relief motion.
Stigars has actually filed four separate Rule 61 motions with this Court. ID No. 30200866DI-R1 was filed with the Prothonotary on July 27, 1998. ID No. 9704003319 is the subject of three separate motions all designated as ID No. 9704003319-R1. Stigars filed these motions on July 27, 1998, January 4, 1999 and February 26, 1999. All of the motions raise essentially the same legal claims. This decision disposes of all claims raised in the four Rule 61 motions.
The Court set a briefing schedule which has been completed. The Court also held a hearing on the motion on December 6, 1999. Stigars' motion is now ripe for decision. In order to better understand the parties' positions and contentions, a detailed chronology of Stigars' partial involvement with Delaware's criminal justice system is necessary.
The Court thanks Mr. Bernstein for undertaking this assignment which he carried out in the finest traditions of the Delaware Bar.
BACKGROUND
On June 28, 1996, Judge Charles H. Toliver, IV, sentenced Stigars on three separate charges (30200866DI). The sentence immediately followed Stigars' guilty pleas to these charges. Pursuant to the plea agreement, Stigars pleaded guilty to Robbery Second Degree (IN92-02-0609), Burglary Third Degree (IN92-02-0975) and Criminal Impersonation (IN92-02-0610). This was a Super. Ct. Crim. R. 11(e)(1)(C) plea. Further, by the terms of the plea agreement, Stigars acknowledged that he was an habitual offender under 11 Del. C. § 4214 (a).
Stigars had been previously convicted of these charges, but those convictions had been reversed on appeal. Stigars v. State, Del. Supr., 674 A.2d 477 (1996).
At this Court proceeding, James Bayard, Esquire, represented Stigars. At all proceedings connected with the Rule 61 motion, Steven P. Wood, Esquire, Deputy Attorney General, represented the State.
Pursuant to the plea agreement, Judge Toliver sentenced Stigars, effective September 9, 1992, to Level V incarceration as a habitual offender with regard to the Robbery Second Degree charge. Again, by the terms of the plea agreement, this period of incarceration ended on June 27, 1996, the day prior to the sentencing date. As to the Burglary Third Degree charge, Judge Toliver imposed three years of Level V incarceration, suspended for three years Level IV, Halfway House-Crest Program, suspended after six months for 30 months at Level III, suspended after 18 months for 12 months at Level II. On the Criminal Impersonation charge, Judge Toliver sentenced Stigars to one year at Level V incarceration, suspended for one year at Level II. The essence of the sentence was that on the date thereof, Stigars became eligible for the Level IV, Crest Inpatient Treatment Program.
By early March 1997, Stigars had completed the Level IV portion of the Burglary Third Degree sentence and was on Level III supervision. On March 18, 1997, Stigars signed a document entitled "Crest Outreach Center Thirty Day Relapse Treatment Contract." This contract states, in part, as follows: "I agree to voluntarily return to level four (4) status at Plummer Center for a minimum of thirty (30) days." The contract also states: "I agree that I will be subject to the dictates of the Plummer Center, and the CREST Outreach Center during this time period." On March 21, 1997, Judge Toliver signed a Progress Report Disposition approving Stigars' return to the Plummer Center for a minimum of thirty days. In accordance with the terms of the contract, Stigars arrived at the Plummer Center on March 24, 1997. However, on March 27, 1997, the Plummer Center staff noticed that Stigars had left the grounds without permission.
A positive urinalysis while in Crest Aftercare was the catalyst for the relapse treatment.
I am satisfied that the date when Judge Toliver signed the Progress Report was March 21, 1997 and not March 27, 1997.
There is no evidence of record that shows Stigars' awareness of Judge Toliver's judicial imprimatur of the terms of the March 18, 1997 contract.
Thereafter, on April 1, 1997, the Probation Department reported to the Court that Stigars had left the Plummer Center without permission and was therefore in violation of probation.
On September 19, 1997, Stigars appeared before Judge John E. Babiarz, Jr., for his Fast Track VOP hearing. Prior to this proceeding, on April 14, 1997, the Grand Jury returned an indictment charging Stigars with Escape After Conviction (ID No. 9704003319). At his VOP hearing, Stigars was well aware of the pending Escape After Conviction charge. The following colloquy occurred:
The Cr.A. No. for this offense is IN97-04-0551.
DEFENDANT: Good morning, your Honor. First of all, I was at the Crest Center for six months. Judge Toliver gave me a six months sentence at Crest, which I completed it and it wasn't to exceed no more than six months. And I have the docket sheet here to verify that it wasn't to exceed no more than six months.
COURT: You want me to read what you have there?
DEFENDANT: Yes, sir.
COURT: Go ahead.
DEFENDANT: Second of all, your Honor, after being at Crest, completing Crest for six months, I was on aftercare there and going over to Crest and report urinalysis and go to meetings. I was over going to meetings and I was given an option through Crest to come back for 30 days. I had informed Crest Program that I wasn't supposed to come back, I had exceeded my time, done my time. They told me I had a Court order to go back to Crest for 30 days.
After I went back to Crest, I talked to Ms. Van Horn, who was a counselor — aftercare counselor over there. The agreement was that I was going to be allowed to continue work and continue school education while at Crest for 30 days. After being at Crest for three days, not being able to go to work and school, I had a conference with the staff over there. I had a meeting with Miss Van Horn, the supervisor, and my counselor and staff person at the Crest. I explained to them when I came back to the Crest I wasn't Court ordered, I agreed to come back. No judge or anybody sent me back to the Crest.
Second of all, I had told them that the agreement was I was going to be allowed to go to school and continue my education. They said, well, at this particular time you can't do that, you can't go out. So I said, well, if that's the case then I don't want to be here any longer if I can't continue to work and go to school. And the reason for that, your Honor, is because I just signed up for school and if I didn't participate I was going to lose my grant money and money I had put out for funding.
Also, job situation. I had been three days off from my job and if I had continued doing that, I was going to lose my job. So I talked to the staff and told them I no longer wanted to be here. Since you volunteer to come in here you can volunteer to leave. If further treatment is needed we will get back with you about that.
At that particular time I had left Crest I knew nothing about no escape charge or anything of that nature. I was not ordered to go back to the Crest or anything like that. My reason for going back to the Crest, they told me it was for a motor vehicle violation. I went back for that specific purpose to do 30 days.
Second of all, when I had this meeting with staff personnel my probation officer wasn't there, no one was there to tell me that I had to go back there, that was just something that I voluntarily did, only I don't understand how I got an escape charge out of going back to the Crest on a voluntarily basis.
COURT: Okay. State want to say anything?
PROBATION OFFICER: Basically, it was part of the conditions was to complete the Crest Program. It was an eight year total sentence, and I believe Judge Toliver amended that three years after six months to 30 months at Level 2 or three, I'm not sure, your Honor. Mr. Stigars did not complete it, he was still in aftercare. They thought it was necessary he come back in for tune-up. He was still out using, he was on the original order and that's how the escape after conviction was picked up and he picked up the original charges.
DEFENDANT: If I may speak again, please? At no time was I under any order from the Plummer Center. I never signed anything stating to come back to the Plummer Center. Only agreement I signed was with the Crest Program. Never signed an agreement to come back to the Plummer Center. Again, I don't understand how an escape charges could come out. This situation —
COURT: Well, I don't know why you don't understand. You have a long criminal record, you are familiar with the system. And, frankly, I have a hard time believing anything you are telling me. Actually, you got a break. This docket you showed me says that Judge Toliver sentenced you to three years and suspended it. The other record I have here says three years six months and 17 days. Well, I'm going to skip the six months and 17 days and just sentence you to the three years. You are already habitual. You understand you are walking on eggs for the rest of your life? You may get life if you get new charges.
You are found to be in violation of your probation, the probation is revoked. And it is the sentence of the Court that you be incarcerated three years beginning July 28, 1999.
This was the date on which Stigars was arrested and incarcerated on the VOP warrant. There is no dispute that Stigars violated his probation or that the VOP sentence was illegal. Stigars does claim that he is entitled to credit when he was being held at Level 5 waiting for space at Crest under the original sentence imposed by Judge Toliver. This concern is addressed in this opinion.
Dade Werb, Esquire, represented Stigars at his VOP hearing. Thus, he was aware on September 19, 1997, of Stigars' contentions regarding the escape charge.
Stigars appeared before me on May 12, 1998, in connection with the Escape After Conviction charge. Mr. Werb again was present representing Stigars. The State and defense had worked out a plea disposition under which Stigars would plead guilty to the charge and would then be immediately sentenced to two years at Level V incarceration pursuant to Super. Ct. Crim. R. 11(e)(1)(C). The State agreed not to proceed under the Habitual Offender Statute. After engaging in a complete colloquy with Stigars, I found that he entered his guilty plea knowingly, intelligently and voluntarily. I thereafter sentenced Stigars to two years at Level V incarceration, consecutive to the three year sentence imposed by Judge Babiarz on September 19, 1996.
If Stigars had gone to trial and been convicted, the State would have sought a mandatory 8 years of incarceration at Level V pursuant to 11 Del. C. § 4214 (a), as amended by 70 Del. Laws, c. 477, effective July 10, 1996. Stigars was aware of the State's position.
Not once during the plea colloquy did Stigars, his attorney or the State mention Stigars' prior contentions regarding the escape charge. Nor did anyone bring to the Court's attention the erroneous allegations contained in the indictment itself. The indictment charged that Stigars did, on or about the 27th day of March, 1997, "intentionally escape from custody of the Department of Correction after having been found guilty of a violation of probation in the Superior Court in and for New Castle County on March 21, 1997, in Criminal Action Number VN92-02-0609." Stigars was not found guilty of a violation of probation on March 21, 1997. Judge Babiarz did find Stigars to have violated his probation, but that finding was not made until September 19, 1997. Nevertheless, and in spite of the discrepancy contained in the indictment, Stigars entered a plea of guilty to the charge contained in the indictment.
The indictment states the wrong Cr.A. number. At the time of the alleged offense, Stigars was serving a 3-year period of probation imposed in Cr.A. No. IN92-02-0975 for his conviction of Burglary Third Degree.
It is against this background that Stigars brings his Rule 61 claims.
RULE 61 CLAIMS
Stigars contends that his decision to plead guilty to the Escape After Conviction charge was caused by his constitutionally ineffective counsel.
In order to prevail upon this claim, Stigars must meet the familiar test announced in Strickland v. Washington. That is, he must show that (1) counsel's representation fell below an objective standard of reasonableness; and, (2) counsel's actions were prejudicial. Since Stigars' conviction was preceded by his guilty plea, he can meet the prejudice prong required by Strickland only if he can show that but for counsel's alleged errors, Stigars would not have pleaded guilty and would have insisted on going to trial.
466 U.S. 668 (1984).
Albury v. State, Del. Supr., 551 A.2d 53, 60 (1988); Somerville v. State, Del. Supr., 703 A.2d 629, 631 (1997).
The Strickland standard is rightfully a demanding one. It is "the rare defendant who will be able to pass through the eye of the needle created by Strickland." This is so, in part, because there is a "strong presumption that counsel's conduct falls within a wide range of reasonably professional assistance."
United States v. Gray, 878 F.2d 702, 711 (3rd Cir. 1989).
Strickland, 466 U.S. at 688, 694.
Of course, counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."
Id. at 690-91.
DISCUSSION
Stigars asserts that if trial counsel had undertaken a reasonable investigation into the escape allegations, he would have insisted on going to trial or would have moved to dismiss the indictment. The State, quite expectedly, contends that trial counsel's representation was reasonable under the circumstances. The State further characterizes Stigars' decision to plead guilty as "cutting one's losses."Trial counsel testified that he was satisfied that the State would be able to prove the facts contained in the indictment. This was not an unreasonable conclusion in view of the evidence made available to him as a result of his pretrial investigation. Trial counsel spoke with Nancy Van Horn, Coordinator for the Crest Outreach Center. She told trial counsel that Stigars had voluntarily agreed to a thirty day stay at Crest and that Crest had submitted documents for Judge Toliver's signature. She further stated that Stigars had left without permission in that he was not there voluntarily but by order of the Court. Trial counsel also obtained a copy of Stigars' Client Status Sheet dated March 25, 1997 which shows, inter alia, that Stigars had been sentenced by Judge Toliver on March 21, 1997, to serve a minimum of 30 days at Level IV, Crest for a violation of probation in connection with VN92-02-0609. This is precisely what the escape indictment had charged.
See letter from trial counsel to Stigars, dated March 25, 1998, marked as State's Exhibit 2 and entered into evidence at the December 6, 1999, hearing.
See State's Exhibit 3 entered into evidence at the December 6, 1999, hearing.
Effective representation depends upon "adequate investigation and pretrial preparation." However, trial counsel is "not required to pursue every path until it bears fruit or until all conceivable hope withers."
Riley v. State, Del. Supr., 585 A.2d 719, 727 (1990).
Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980).
Even if trial counsel should have undertaken further steps to test the veracity of the evidence he had obtained, no prejudice can be shown for any oversight. Stigars testified at the postconviction hearing that Nancy Van Horn had given him only two choices — 30 days of Crest tune-up or jail. In other words, Stigars was aware that not being in Crest would result in incarceration because of his tainted urine sample. Quite naturally, Stigars chose Crest rather than prison and signed the contract.
Despite his acknowledged understanding that his choices were either Crest or prison, Stigars maintained that he was unaware that if he left the Plummer Center he would go to prison. This is completely inconsistent with his initial understanding and his testimony at the postconviction hearing. If he understood that it was Crest or jail, then surely he understood that if he left Crest it would also be jail. His claim of lack of knowledge is belied by his own testimony. The Court concludes that Stigars took the plea not because his attorney was unprepared or coerced him, but rather because he saw a personal benefit in doing so.
However, it is now evident that Stigars was not found guilty of a violation of probation in this Court on March 21, 1997. On that date, Judge Toliver merely endorsed the agreement reached by Stigars to return to the Plummer Center for a minimum of 30 days.
The State, in its Memorandum in Opposition to the Defendant's Motion for Postconviction Relief, characterized Judge Toliver's action as an "approval" of the reclassification. This is hardly synonymous with a VOP finding of guilt.
EFFECT OF GUILTY PLEA A. The Law
In general, when a defendant voluntarily enters a guilty plea, a subsequent claim of ineffective assistance of counsel will fail. It is well-settled that a defendant is bound by his answers during a guilty plea colloquy in the absence of clear and convicting evidence to the contrary. It is settled Delaware law that a voluntary and intelligent plea agreement waives all defects allegedly occurring before the defendant enters the plea. In the absence of clear and convincing evidence to the contrary, a defendant is bound by his signed statement on the Guilty Plea Form and by his statements made during the plea colloquy. By pleading guilty, a defendant waives the right to put the State to its proof, that is, his right to challenge the sufficiency of the evidence against him, or even to challenge a defective or nonexistent charge.In Delaware, a defendant, through a voluntary and intelligent plea bargain, forfeits his right to attack an underlying infirmity in the charge to which he pleads guilty. A plea should be sustained on the ground that it was sought by defendant and freely taken as part of a bargain which was struck for the defendant's benefit. Pleas to defective or nonexistent offenses will be upheld where the defendant has entered the plea under a plea bargain agreement from which he received a substantial benefit, even though a jury conviction on the same charged might be reversed.
Downer v. State, Del. Supr., 543 A.2d 309, 312 (1988).
Id. (citing People v. Foster, N.Y.Ct.App., 225 N.E.2d 200, 202 (1967)).
Id. at 313 (citing People v. Waits, Colo. App., 695 P.2d 1176 (1984)).
Of course, where the alleged error of counsel is a failure to investigate, a determination of "prejudice" to the defendant by causing him to plead guilty depends upon the likelihood that the additional effort by counsel would have led to a change in counsel's recommendation as to that plea.
Albury v. State, 551 A.2d at 59 (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)).
B. Factual Findings
Here, the May 12, 1998, guilty plea colloquy was thorough and not subject to challenge. The plea colloquy shows that Stigars knowingly, voluntarily and intelligently entered the plea of guilty to the charged offense without coercion from anyone. He stated that he was satisfied with his attorney and was freely and voluntarily entering a plea of guilty. The Guilty Plea Form also supports this conclusion. I find that trial counsel's pretrial investigation fell within an objective standard of reasonableness. Furthermore, no prejudice can be shown because, in my assessment of the evidence, trial counsel did not cause Stigars to plead guilty. Stigars took the plea with eyes open. The Court does not find credible Stigars' testimony that trial counsel unduly encouraged him to take the plea. Instead, Stigars saw the benefit of a reduced sentence and grabbed for it. He did not even trust his attorney and told him that if there was a trial, he would represent himself.Stigars maintained, at least from September 19, 1997, that he was voluntarily at Level IV, Plummer Center-Crest when he left on March 27 of that year, and that he had not been found to be in violation of probation before he left. We now know that there was no March 21, 1997 finding of guilt after a VOP hearing. Nevertheless, Stigars opted to plead guilty to Escape After Conviction, no doubt because the State had agreed at the last minute to a 2-year cap in exchange for his plea. Stigars knew that, if convicted, the State would move to have him declared as an habitual offender under 11 Del. C. § 4214 (a) and that the Court would have to impose at least an 8-year sentence of incarceration upon conviction. Stigars thus received a substantial benefit under the Rule 11(e)(1)(C) plea agreement. In short, Stigars has failed to meet both the performance prong and the prejudice prong of his Rule 61 claim.
The Superior Court has jurisdiction over this charge. 11 Del. C. § 2701 (c).
C. Other Issues
While the Court could end the matter here, I note the severity of a two-year sentence for what really is a charge of Escape Second Degree if the State been pressed to prove its case. I am, thus, in the interest of justice, sua sponte, reducing the two-year sentence imposed in ID No. 9704003319 to 1 year at Level V through an amended sentencing order.
I am satisfied that the evidence would show both "custody" under 11 Del. C. § 1258 (2) and "knowledge" under 11 Del. C. § 1258 (4). While the indictment's allegations were in error, Stigars was, at the time he left Crest, under the June 28, 1996 order of Judge Toliver to "be evaluated for substance abuse and follow any directions for counseling, testing, or treatment made by the Probation Officer," and to "be assigned to the inpatient drug/alcohol (Crest) program until such program is completed." (Emphasis added.) Thus, Stigars was under the restraint of a public servant pursuant to an order of the court. 11 Del. C. § 1258 (2).
Further, Stigars surely knew, when viewing the totality of the circumstances, that he was not permitted to leave the Plummer Center after he had specifically agreed to be "subject to the dictates of the Plummer Center and the Crest Outreach Center" during his thirty-day tune-up. Stigars departed from the place where he was held knowing that such departure was not permitted. 11 Del. C. § 1258 (4).
On the credit time issue regarding the VOP sentence imposed by Judge Babiarz on September 19, 1997, I have ascertained that Stigars was kept at Level V awaiting space at Level IV, Plummer Center-Crest from June 28 until July 24, 1996. I am therefore amending Judge Babiarz' sentence to reflect 27 days of credit time.
Gamble v. State, Del.Supr., 728 A.2d 1171 (1999).
CONCLUSION
The Court recognizes that by this opinion Stigars will be released from incarceration sooner than originally contemplated. While he prepares for his earlier release, this Court echoes the words of Judge Charles H. Toliver, IV, when he addressed Stigars on June 28, 1996.
"[Y]ou have done well while incarcerated, but you always do. I think I wrote you that. But it has been — and I have charted your offenses. You will reoffend or have reoffended anywhere from as little as six months to nine months every time you've gotten out of jail. Not only that, you have reoffended in a neighborhood where everybody knows you. The odds are, sir, if I had to calculate it, that you will be back and you will be back by Christmas time. Now, hopefully the odds are incorrect. Hopefully you have learned a lesson. But if you, do not or have not learned a lesson on this occasion, I doubt very seriously, given your status, whether you will ever be a free man ever again, at least not on this earth.
I can only hope that Stigars will reflect upon Judge Toliver's words and alter his life style accordingly once his is released. I get the distinct impression that the State will be waiting in the wings for a slip-up on Stigars' part. If a slip-up should occur, a sympathetic judge will be hard to find.
For the reasons stated above, Stigars' Motion for Postconviction Relief is DENIED. Stigars' application for credit time with regard to VN92-02-0975 is GRANTED. Sentence imposed in IN97-04-0551 is hereby REDUCED.
It Is So ORDERED .
AMENDED SENTENCING ORDER
NOW THIS 21ST DAY OF DECEMBER, 1999, IT IS THE ORDER OF THE COURT THAT: The sentencing order dated May 12, 1998 and the violation of probation order dated September 19, 1997 are hereby amended as follows:As to Cr.A. No. IN97-04-0551W (ID No. 9704003319):
The sentence beginning "Consecutive to the" and ending "of 2 years." is hereby rescinded and in lieu thereof replaced with:
"Consecutive to the sentence now serving, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 1 year."As to Cr.A. No. VN92-02-0609-01 (ID No. 30200866DI):
The Cr.A. No. VN92-02-0609-01 is hereby rescinded and in lieu thereof replaced with: "Cr.A. No. VN92-02-0975-01"
The Orig. Charge: Robbery 2nd is hereby rescinded and in lieu thereof replaced with: "Burglary 3rd"
The sentence beginning "Effective July 28, 1997" and ending "of 3 years." is hereby rescinded and in lieu thereof replaced with:
"Effective July 28, 1997, the defendant is placed in the custody of the Department of Correction at Supervision Level 5 for a period of 3 years with credit for 27 days previously served."
All other aspects of the original sentencing order remain in effect.
It is So ORDERED .