Opinion
I.D. No. 0605023366.
Submitted: August 14, 2007.
Decided: October 22, 2007.
Upon Consideration of Defendant's First Pro Se Motion for Postconviction Relief GRANTED.
This 22nd day of October, 2007, it appears to the Court that:
1. On January 1, 2007, a jury found Gerard E. Szubielski ("Szubielski") guilty of assault in the first degree pursuant to DEL. CODE. ANN. tit. 11, § 613. On March 2, 2007, the Court granted the State's motion to declare Szubielski an habitual offender and sentenced him to life imprisonment pursuant to DEL. CODE. ANN. tit. 11, § 4214(b). Szubielski filed a pro se appeal to the Supreme Court on June 25, 2007. Szubielski then filed this, his first pro se motion for postconviction relief, on August 14, 2007.
Szubielski filed a pro se notice of appeal with the Superior Court on June 25, 2007. The Supreme Court, however, has no record of any notice of appeal filed by Szubielski and has not addressed any appeal filed by him.
2. In this motion, Szubielski raises numerous grounds for postconviction relief. Specifically, Szubielski argues: (1) that his attorney failed to investigate mechanical problems with his vehicle, which, if the jury believed the testimony, would have impacted the jury's determination of guilt; (2) that the Judge failed to have an adequate colloquy with Szubielski; (3) that Szubielski's attorney failed to file a notice of appeal to the Supreme Court pursuant to Supreme Court Rule 26, failed to advise Szubielski of his right to appeal, and failed to withdraw if he believed that an appeal was without merit; and (4) that Szubielski should have been charged with vehicular assault rather than assault in the first degree. As a result of these errors, Szubielski asks this Court to grant him a preliminary hearing to have his conviction and sentence reversed.
Sup. Ct. R. 26.
3. In response to these claims, Szubielski's counsel notes that, aside from mentioning once in the beginning of his representation that Szubielski's vehicle malfunctioned, Szubielski never again raised the possibility of a malfunction as the cause of the vehicular assault. Rather, Szubielski urged his counsel to present the defense that his girlfriend and passenger, Ms. Martinez, rather than Szubielski, drove the car that night. After counsel met with Ms. Martinez, who denied that she was the driver, counsel claims that Szubielski still adhered to the defense. At trial, only after the State had rested its case-in-chief, did Szubielski change his story and claim that the car had a mechanical problem.
4. Szubielski's counsel also asserts that Szubielski never requested he file an appeal and never suggested any basis for appeal, despite remaining in contact with his attorney. Counsel admits, however, that he failed to advise Szubielski in writing that he had a right to appeal. Because this would constitute ineffective assistance of counsel under State v. Nalley, counsel suggests that the Court resentence Szubielski in order to permit his 30-day appeal period to restart.
State v. Nalley, Del. Super., ID No. 0407025446, Babiarz, Jr., J. (Nov. 22, 2006) (Letter Op.).
5. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
6. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do 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." Moreover, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
7. In applying the procedural imperatives to this case, Szubielski's claims should be barred. Under bar (1), he did not file an appeal within thirty days of his sentencing in Superior Court. Even assuming that his appeal was timely filed, the Supreme Court has not issued a mandate or order finally determining the merits of Szubielski's claims. As a result, this Court cannot address the merits of Szubielski's postconviction motion. Bar (3) would also bar Szubielski's claims because he did not raise the ineffective assistance counsel claim or the mechanical error claim at trial and has not shown "cause for relief from the procedural default."
Szubielski was sentenced by the Superior Court on March 2, 2007. Docket 25. He filed his appeal, however, on June 25, 2007, more than three months after his sentence.
To overcome bar (3), the movant must show cause for relief and prejudice from a violation of his rights. Super Ct. Crim. R. 61(i)(3). Failure to establish both elements permits the Court to bar the claim on this ground. See Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996). To show cause, a movant must show "some external impediment" which prevented him from raising the claim. Younger, 580 A.2d at 556. Other than his attorney's failure to notify of his right to appeal, which the Court will address herein, Szubielski has not shown any external impediment that prevented him from discussing a mechanical failure in his car that led to the assault. Specifically, the Court notes that Szubielski testified at trial and could have easily mentioned a mechanical failure while on the witness stand. Accordingly, because Szubielski has failed to establish cause, it is not necessary for this Court to discuss any prejudice he has suffered. See Shelton v. State, 744 A.2d 465, 478 (Del. 2000); Dawson, 673 A.2d at 1192-93.
8. The Court, nonetheless, determines that Szubielski should be permitted to file an appeal to the Supreme Court because counsel admits that he erred by not advising Szubielski of his constitutional right to do so. A claim of ineffective assistance of counsel by a defendant is not procedurally barred because a "claim of ineffective assistance of counsel is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding." In this case, though the Superior Court docket reflects that Szubielski filed an appeal with the Superior Court, there is no record of an appeal being docketed with the Supreme Court. Moreover, in responding to Szubielski's allegations, Szubielski's attorney admits that he failed to advise him in writing of his right to appeal. A failure to inform a client in writing of his right to appeal constitutes ineffective assistance of counsel.
State v. Morla, 2007 WL 2566012, at *3 (Aug. 30, 2007).
Docket 30, ¶¶ 22-25. Szubielski's attorney does note, however, that Szubielski never requested an appeal to be filed and did not believe that there was a basis for an appeal.
State v. Nalley, Del. Super., ID No. 0407025446, Babiarz, Jr., J. (Nov. 22, 2006) (Letter Op. at 2) (citing Braxton v. State, 479 A.2d 831 (Del. 1984) and Dixon v. State, 581 A.2d 1115 (Del. 1990)).
9. As a result, Szubielski's motion for postconviction is GRANTED to the extent that the sentence he received on March 2, 2007 is hereby VACATED, and he is resentenced to the same terms and conditions, effective this 16th day of October 2007. Attached is a new sentencing order. Szubielski now has thirty days from the date of this order to file an appeal with the Supreme Court should he choose to do so.
10. The Court recognizes that the foregoing ruling makes it unnecessary to address the substantive merits of Szubielski's other claims in his postconviction motion. Nevertheless, the Court comments on Szubielski's claims in the event that Szubielski chooses to file a second motion for postconviction relief.
11. Szubielski argues, in essence, that he had ineffective assistance of counsel. To evaluate Szubielski's claim, the Court applies the two-part test of Strickland v. Washington. Under Strickland,
446 U.S. 668 (1984)
the defendant must show that counsel's representation fell below an objective standard of reasonableness," and "that there is a reasonable probability that, but for counsel's unprofessional error, the result of the proceedings would have been different." In applying the two-part Strickland test to a defendant's claim, the Court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."
State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citing Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting Strickland, 466 U.S. at 688, 694).
12. First, Szubielski claims that his attorney failed to investigate mechanical problems with his vehicle. Szubielski claims he raised this argument on re-direct examination.
Szubielski supports this contention with no evidence and no citation to the record.
13. Despite mentioning this defense once to his attorney early in their meetings, Szubielski never raised the claim of a malfunction as the reason for his loss of control of his car. In fact, Szubielski wrote to his attorney on many occasions and told him that "I plan on showing . . . that I was not the person driving the car" and "that would be my defense at trial." Szubielski also offered an affidavit from Magdelena Martinez who claimed that she was driving the car. Upon questioning by Szubielski's attorney, Ms. Martinez stated that she did not agree that she had been driving the car. After telling Szubielski of Ms. Martinez's recantation, Szubielski still intended to argue that it was Ms. Martinez who drove the car.
Docket 33, ¶¶ 2-21.
Id, ¶¶ 6-7, Ex. C D.
Id, Ex. H.
14. Based on these communications between Szubielski and his attorney, the Court finds that Szubielski's attorney acted reasonably. At no time before the State rested, and at no point in any of his correspondence, did Szubielski inform his attorney that the cause of the accident was a malfunction. At trial, it was not until after the State rested its case-in-chief that Szubielski changed his story and mentioned a malfunction, claiming that he (and not Ms. Martinez) drove the car, that the car "started to sputter and then shortly after the car died," that he "wasn't paying attention to the road," and that Ms. Martinez "threw a cup with soda and ice at me hitting me in the face. . . ." Because Szubielski insisted that his attorney argue that he was not the driver throughout all of their communications, and did not change his story until after the State rested, it was reasonable for Szubielski's attorney to make no further investigation into the car's condition.
Docket 33, Ex. K.
15. Moreover, even assuming that counsel had investigated an alleged malfunction of the car, the outcome of the trial would not have been different. Szubielski was charged with assault in the first degree and reckless endangering in the first degree. The evidence against Szubielski was powerful and compelling. Szubielski fled from police in his car after an officer pulled him over, drove a vehicle with a suspended license, sped into a construction zone, struck two victims and the construction equipment, and left the scene of the accident after fleeing from his vehicle during police pursuit. Even if the car had malfunctioned, it is unreasonable to believe that a jury would have ignored the fact that defendant was recklessly speeding while fleeing from the police, and then fled from the scene after he seriously injured a flagger who was working in a construction zone.
See 11 Del. C. § 613(a)(3) ("A person is guilty of assault in the first degree when: (3) [t]he person recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person").
16. Szubielski next argues that the Judge failed to determine whether he was taking medication during the trial, whether he was satisfied with his attorney's representation, and whether the discussions he made were his own. In his motion, Szubielski writes "Finally, Judge failed as well to conduct a colloquy durn [sic] the even't [sic] of his trial to make sure that (1.) the discussin he made was his own, (2.) was he on medication durn [sic] the course of trial and (3.) must importin [sic], to make sure if he was satisfied with his attorney representation [sic]. . . ." These allegations are unintelligible or simply nonsensical. Therefore, the Court has no obligation to consider them.
See State v. Jordan, 1994 WL 637299, at *3 (Del.Super.Ct. Jun. 23, 1994) ("This Court need not address Postconviction Relief claims that are conclusory and unsubstantiated."); Zimmerman v. State, 1991 WL 190298, at *1 (Del.Super.Ct. Sept. 17, 1991) (citations omitted) ("This Court will not address Rule 61 claims that are conclusory and unsubstantiated."); State v. Canon, 1999 WL 1441997, at *3 (Del.Super.Ct. Dec. 9, 1999) (finding Defendant's claim "repetitive, vague, and entirely conclusory, warranting summary dismissal"); State v. Brown, 1998 WL 735880, at *3 (Del. Super Ct. Aug. 20, 1998) ("Conclusory claims raised in a defendant's motion for postconviction relief are insufficient to prove ineffective assistance of counsel and will not be addressed."); State v. Dividu, 1992 WL 52348, at *2 (Del.Super.Ct. Feb. 12, 1992) ("[M]ovant has failed to provide any factual support for his perfunctory allegations. He does not state, for example, in what regard his counsel failed to prepare for trial[.] As Rule 61(b)(2) obviously contemplated, without this information I am unable to effectively evaluate the merit of movant's claims."); State v. Morgan, 2004 WL 1732282, at *2 n. 1 (Del.Super.Ct. July 27, 2004) ("Defendant makes an assertion in ground five concerning a motion for postconviction relief which is unintelligible and consequently, ignored."); State v. Maldonado, 2004 WL 2735463, at *2 (Del.Super.Ct. Nov. 5, 2004) ("Defendant makes an argument of ineffective assistance of counsel, which frankly, is nonsensical.").
17. Assuming that Szubielski is arguing that the trial judge failed to enter into a colloquy with him before and during the trial, the Court finds Szubielski's claims to be without merit. Szubielski chose to proceed to trial rather than accept a plea. He has offered no procedural or substantive rule of law, nor has the Court found any, that requires a Judge — prior to trial — to engage in a colloquy with a defendant to determine whether he is satisfied with his attorney's representation, whether he is taking medication, or whether he is making his own decisions.
18. Importantly, whether Szubielski was on medication was not a matter for the Court to determine. If, in fact, he had been taking medication that affected his ability to assist his attorney at trial, it was his responsibility to alert his attorney to this fact. As for Szubielski's other arguments, if Szubielski was so concerned with his attorney's representation or with the decisionmaking process during trial, he should have raised these issues with his attorney, who would have brought them to the attention of the Court. At that point, the Judge would have engaged in the required colloquy. Absent any evidence that Szubielski was dissatisfied with his attorney's representation at the time of trial or that he did not wish to proceed to trial, the Court was under no obligation to engage in a colloquy with him.
19. Finally, Szubielski argues that he should have been charged with vehicular assault rather than assault in the first degree. Szubielski contends that his attorney's failure to make this argument amounts to ineffective assistance of counsel.
20. A prosecutor has broad discretion to determine what charges to bring against an individual. "[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision of whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." However, a prosecutor "may not deliberately exercise selectivity in charging a defendant based upon an unjustifiable standard such as race, religion, or other arbitrary classification."
Albury v. State, 551 A.2d 53, 61 (Del. 1988)
Id. (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), reh'g denied, 435 U.S. 918 (1978)).
Bordenkircher, 434 U.S. at 364.
21. The defendant in State v. Mills made a similar argument which this Court rejected. In Mills, the defendant argued that he should have been charged with the crime of incest rather than rape in the first degree. The Court rejected the defendant's argument, explaining:
1996 WL 280893, at *5 (Del.Super.Ct. Mar. 27, 1996).
In this case, the conduct of which Defendant was accused clearly satisfied the statutory elements of first degree rape. In addition, as Defendant has presented no evidence that the prosecutor's decision to prosecute him for the more serious offense of first degree rape was made as a result of an improper or arbitrary classification, . . . his claim of prosecutorial misconduct [is] without merit.
Mills, 1996 WL 280893 at *5.
22. "A person is guilty of vehicular assault in the second degree when: (1) [w]hile in the course of driving or operating a motor vehicle, the person's criminally negligent driving or operation of said vehicle causes serious physical injury to another person." In this case, the jury found Szubielski guilty of assault in the first degree, thereby determining that Szubielski engaged in reckless conduct which created a substantial risk of serious physical harm to another and caused serious physical harm to another. Because the jury found that Szubielski's conduct was reckless, there was sufficient evidence with which to charge Szubielski with assault in the first degree rather than vehicular assault second degree. Moreover, just as in Mills, there is no evidence that the prosecutor's decision to charge Szubielski with the more serious crime of assault in the first degree was based on improper or arbitrary classifications.
11 Del. C. § 628.
See 11 Del. C. § 613(a)(3) ("A person is guilty of assault in the first degree when: (3) [t]he person recklessly engages in conduct which creates a substantial risk of death to another person, and thereby causes serious physical injury to another person").
Szubielski was not found to be intoxicated at the time of the crash. Moreover, a jury found Szubielski's conduct to be reckless and not negligent. As a result, the State determined correctly that Szubielski could not be charged with vehicular assault in the first degree. See 11 Del. C. § 629 ("A person is guilty of vehicular assault in the first degree when while in the course of driving or operating a motor vehicle and under the influence of alcohol or drugs or with a prohibited alcohol or drug content . . ., the person's negligent driving or operation of said vehicle causes serious physical injury to another person.").
23. Accordingly, Szubielski's motion for postconviction relief is GRANTED to the extent that the sentence he received on March 2, 2007 is hereby VACATED, and he is resentenced to the same terms and conditions, effective this 16th day of October 2007. Attached is a new sentencing order. Szubielski has thirty days from the date of this decision to file a new appeal to the Delaware Supreme Court.
IT IS SO ORDERED.
ORDER
AND NOW, this 22nd day of October, 2007, the defendant having filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on August 14, 2007,IT IS ORDERED that:
(1) Defendant's sentence that he received on March 2, 2007 is hereby VACATED.
(2) Defendant is resentenced to the same terms and conditions, effective this 17th day of October 2007.
IT IS SO ORDERED.