Opinion
ID. No. 9603002509
Submitted: November 13, 2002 (AMENDED)
Decided: February 28, 2003 Amended: March 12, 2003
Joelle M. Wright, Esquire, Deputy Attorney General.
Raymond Radulski, Esquire, Assistant Public Defender.
Andrew G. Ahern III, Esquire, Joseph W. Benson, P.A., Attorney for the Defendant.
Mr. Gerald Wilmer, Defendant.
OPINION AND ORDER On the Defendant's Motion for Post-conviction Relief
Presently before the Court is the motion filed by the Defendant, Gerald A. Wilmer, seeking post-conviction relief pursuant to Superior Court Criminal Rule 61. That which follows is the Court's resolution of the issues so presented.
FACTS AND PROCEDURAL POSTURE
Mr. Wilmer was tried before a jury on several sexual offenses between July 22, 1997 and July 24, 1997. At the conclusion of the trial, Mr. Wilmer was found guilty of Unlawful Sexual Intercourse First Degree. He was sentenced on September 12, 1997 to thirty years at Level V, suspended after twenty-five years for five years at various levels of probation. The first fifteen years of this sentence were mandatory. Mr. Wilmer appealed the jury's decision to the Delaware Supreme Court which affirmed that conviction on March 6, 1998. Raymond M. Radulski, Esquire represented Mr. Wilmer during both the trial and appellate proceedings.
The Honorable Norman A. Barron presided over the trial and ultimately sentenced Mr. Wilmer in 1997. The undersigned judge assumed responsibility for this matter when Judge Barron retired.
See Wilmer v. State, Del. Supr., No. 404, 1997, Walsh, J. (March 6, 1998) (ORDER).
On October 9, 1998, Mr. Wilmer filed a petition for a writ of habeas corpus in the District Court of Delaware, pursuant to 28 U.S.C. § 2254. Mr. Wilmer claimed that his attorney was ineffective and that as a result he was denied the right to counsel in violation of the Sixth Amendment to the United States Constitution. Specifically, Mr. Wilmer alleged that Mr. Radulski failed to adequately investigate facts supporting his defense and failed to adopt Mr. Wilmer's suggested grounds for appeal. In addition, Mr. Wilmer alleged malicious prosecution on the part of the State, since he claimed there was insufficient evidence to establish probable cause to warrant his indictment.
After reviewing Mr. Wilmer's contentions and the State's responses regarding the claim of ineffective assistance of counsel, the District Court found that Mr. Wilmer had not adequately exhausted the remedies available to him in the Delaware state courts. The Court ruled that Mr. Wilmer had failed to first file a motion for post-conviction relief with the Superior Court, pursuant to Superior Court Rule 61. In addition, it found that the malicious prosecution claim was inextricably bound with the ineffective assistance of counsel claim and was likewise subject to the exhaustion requirement. As a result, the District Court dismissed Mr. Wilmer's petition in its entirety by order on June 14, 1999.
In its decision, the District Court relied on 28 U.S.C. § 2254(b)(1)(A), as well as Castille v. Peoples, 489 U.S. 346, 351 (1989).
On March 6, 2001 Mr. Wilmer filed a motion for post-conviction relief with this Court pursuant to Rule 61 seeking to overturn his conviction. Mr. Wilmer claimed Mr. Radulski was ineffective as his attorney during the course of his trial. Specifically, he contended that Mr. Radulski presented two conflicting defenses which undermined Mr. Wilmer's credibility and prevented him from arguing that he had not had intercourse with the victim. Mr. Wilmer also assailed Mr. Radulski's performance concerning a polygraph test offered by the State which Mr. Wilmer alleges counsel refused on his behalf.
Andrew G. Ahern, III, Esquire represented Mr. Wilmer in that challenge. This Court denied that motion in an order on April 16, 2002. The Court found that Mr. Radulski's strategy met an objective standard of reasonableness and that Mr. Wilmer's claim regarding the polygraph test was unsupported by the record.
Mr. Wilmer filed the instant motion for post conviction relief on May 14, 2002, again alleging ineffective assistance of counsel, this time by Mr. Ahern, as well as vindictive prosecution and judicial misconduct. Mr. Ahern's response was received on October 8, 2002, and the State's response was received on October 21, 2002. Mr. Wilmer filed a reply to Mr. Ahern's submission on October 16, 2002.
Mr. Wilmer has raised seven contentions which he feels invalidate his conviction. They are as follows:
1. The Grand Jury lacked jurisdiction over Mr. Wilmer to reindict him on the charges that had been nolle prosequied;
2. The Court lacked jurisdiction and/or authority to try, convict or punish Mr. Wilmer;
3. Vindictive prosecution by the State;
4. Judicial misconduct;
5. The conviction amounted to Double jeopardy in violation of;
6. Ineffective assistance of counsel; and
7. Illegal and/or unlawful sentence and confinement.
There is no further reference to the first two claims ((a) and (b))in the motion. The Court will therefore summarily dismiss them in that Mr. Wilmer has failed to provide any factual or legal evidence thereof.
Mr. Wilmer alleges that Mr. Ahern should have raised all issues save the claim that he, Mr. Ahern, was ineffective in the March 6, 2001 post-conviction relief motion, and his failure to do so, Mr. Wilmer claims, amounts to ineffective assistance of counsel as set forth in contention (f).
Mr. Wilmer's primary claim in the present context is that "trial counsel" was ineffective because he failed to raise the issue of double jeopardy when he appealed Mr. Wilmer's conviction to the Delaware Supreme Court. According to Mr. Wilmer, his conviction violates the bar against double jeopardy contained in the Fifth Amendment to the United States Constitution when he was reindicted and convicted for offenses for which a nolle prosequi had originally been entered by the State. By permitting the reindictment, he argues that the Court committed substantial error. He goes on to claim that Mr. Ahern was equally ineffective by not raising that issue in the March 6, 2001 motion for post-conviction relief.
By "trial counsel" this Court will assume that the movant refers to Mr. Radulski.
The Fifth Amendment of the United States Constitution states, in relevant part: "No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb. . . ."
In support of his vindictive prosecution claim, Mr. Wilmer alleges that the State prosecuted him, in violation of the "Freedom of Choice Amendment to the United States Constitution," because he opted to reject a guilty plea that would have resulted in only eighteen months of incarceration. Regarding the misconduct claim, he alleges that the Court wrongfully allowed the State's witnesses to vouch for the credibility of the victim. Mr. Wilmer argues that this prejudiced the jury and substantially affected the outcome of the trial, in violation of his right to equal protection under the Fourteenth Amendment to the United States Constitution. He attached a copy of his grand jury indictment, a copy of his docket sheet and one page of the transcript of his trial to bolster his arguments in this regard.
Mr. Wilmer does not provide any further identification of the authority to which he refers.
In his response, Mr. Ahern essentially denied the allegations made against him on three grounds. First, Mr. Ahern felt that there were no legitimate double jeopardy or equal protection concerns to be raised in the March 6, 2001 motion for post conviction relief. Second, Mr. Ahern suspected that the reindictment implicated due process concerns, but didn't raise any because (a) Mr. Radulski and Mr. Wilmer had not expressed any problems with notice of the reindictment, and (b) Mr. Radulski and Mr. Wilmer's decision to go forward with trial was strategically sound. Finally, Mr. Ahern indicated that he had no record of discussing the "vouching" issue with Mr. Wilmer, but believed upon reflection that that issue should have been raised on direct appeal by Mr. Radulski. Mr. Ahern did not feel it was his responsibility to raise that issue in the March 6, 2001 motion for post conviction relief.
Mr. Ahern made no response to Mr. Wilmer's claim of vindictive prosecution.
As might be expected, the State has opposed Mr. Wilmer's petition. Insofar as Mr. Wilmer's claims of vouching and double jeopardy are concerned, the State Contends that those claims are barred by Superior Court Civil Rule 61(i)(2), since he failed to raise them in his first post-conviction motion on March 6, 2001. Moreover, the State argues that all of Mr. Wilmer's claims are barred by the three year limitation found in Rule 61(i)(1).
Rule 61(i)(2) reads: "Repetitive motion. Any ground for relief that was not asserted in a prior post-conviction proceeding, as required by subdivision (b)(2) of this rule, is thereafter barred, unless consideration of the claim is warranted in the interest of justice."
Rule 61(i)(1) reads: "Time limitation. A motion for post-conviction 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."
On the merits, the State asserts that Mr. Wilmer has not been subjected to double jeopardy because, under Rule 48 and 11 Del. C. § 207, the State is "not prohibited from reindicting and prosecuting a defendant for the same offense where a nolle prosequi has been entered on those charges." Mr. Wilmer's prosecution subsequent to a rejected plea offer did not, therefore, constitute vindictive prosecution, since it is customary for the State to continue with its original prosecution after such a rejection. Finally, the State also contends that Mr. Wilmer points to no evidence of the Court vouching for the credibility of the victim in the presence of the jury.
See State Resp. at 2, citing 11 Del. C. § 207.
The State indicates that it "fails to see where the Court vouched for the credibility of the victim in the trial." Pl.'s Resp. at 2. However, Mr. Wilmer did not actually contend that the Court vouched for the credibility of the victim, but rather that the Court improperly allowed two of the State's witnesses to vouch for the victim's credibility. Def.'s Mem. Supp. Post Conviction Relief at 4. It is noted that the Court made a comment on the credibility of the victim at the September 12, 1997 sentencing proceeding, but that this was after the jury had reached their guilty verdict and been discharged of their duties. (September 12, 1997 Sentencing Tr. at 7).
Mr. Wilmer filed a reply to Mr. Ahern's response on October 16, 2002. First, he argues that had he been properly advised, he would have asked for more time to respond to the reindicted charges. Second, he asserts that Mr. Ahern should have raised the vouching issue in the March 6, 2001 motion for post conviction relief, regardless of the right to do so in a direct appeal. Third, Mr. Wilmer contends that each of these transgressions fall within the "Plain Error" standard of review.
Mr. Wilmer makes no further reference to the claim of malicious prosecution as presented in his initial May 14, 2002 motion.
DISCUSSION
Before the Court can consider the merits of a motion for post-conviction relief, the movant must first overcome the substantial procedural bars contained in Superior Court Criminal Rule 61(I). Under Rule 61(I), post-conviction claims for relief must be brought within three years of the movant's conviction becoming final. Further, any ground for relief not asserted in a prior post-conviction motion is thereafter barred, unless consideration of the claim is necessary in the interest of justice. Similarly, grounds for relief not asserted in the proceedings leading to judgment of conviction are thereafter barred, unless the movant demonstrates: (1) cause for the procedural default, and (2) prejudice from any violation of the movant's rights. Finally, any ground for relief that was formerly adjudicated in the proceedings leading to judgment of conviction or in a prior post-conviction proceeding is thereafter barred from consideration.
Flamer v. State, 585 A.2d 736, 745 (Del. 1990); Younger v. State, 580 A.2d 552, 554 (Del. 1990); Saunders v. State, 1995 Del. LEXIS 17 at *5.
Super.Ct.Crim.R. 61(I)(1).
Super.Ct.Crim.R. 61(I)(2).
Super.Ct.Crim.R. 61(i)(3).
The procedural bars set forth in Rule 61(I)(1)-(4) may be lifted if the defendant establishes a colorable claim that there has been a "miscarriage of justice" under Rule 61(I)(5). A colorable claim of miscarriage of justice occurs when there is a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction. This exception to the procedural bars is very narrow and is only applicable in very limited circumstances. A claim of ineffective counsel in violation of the Sixth Amendment to the United States Constitution, by its very nature, qualifies as just such an exception. The defendant bears the burden of proving that he has been deprived of a "substantial constitutional right."
Super.Ct.Crim.R. 61(I)(5)
Younger at 555.
Mason v. State, 725 A.2d 442 (Del. 1999); State v. McRae, 2002 Del. Super. LEXIS 495 at *15.
Id.
In the instant case, Mr. Wilmer did file his March 6, 2001 motion for post-conviction relief within the three year time limitation set forth in Rule 61(I)(1). However, the present motion before the Court was filed well outside of that proscribed period. Consequently, all of his claims, excluding his claim of ineffective assistance of counsel, are procedurally barred by Rule 61(I)(1). The abovementioned claims (again, save ineffective assistance of counsel) are also barred by Rule 61(I)(2), as Mr. Wilmer failed to raise any of them in his March 6, 2001 motion for post-conviction relief. However, if these claims were not raised because of the ineffective assistance of counsel, then consideration of Mr. Wilmer's claims may continue. Accordingly, the Court will turn to Mr. Wilmer's claim that Mr. Ahern provided ineffective assistance of counsel which prevented the presentation of the other claims he raised.
State v. Jones, 2002 Del. Super. LEXIS 197 at *2-3.
Under the standard outlined in Strickland v. Washington, two factors must be established in order to prevail on a claim of ineffective assistance of counsel. First, the Defendant must demonstrate that counsel's representation fell below an objective standard of reasonableness. Second, he or she must show that counsel's actions were prejudicial to the defense, creating a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. The Strickland standard is highly demanding and under the first prong of the test, there is a "strong presumption that the representation was professionally reasonable."
466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984).
Strickland at 694.
Stone v. State, 690 A.2d 924, 925 (Del. 1996); Flamer at 753.
Mr. Wilmer claims that Mr. Ahern was ineffective by failing to raise the claims contained in the instant motion for post-conviction relief in the March 6, 2001 motion. The Court disagrees. Mr. Ahern was not responsible for raising claims of double jeopardy, vindictive prosecution and judicial misconduct because there is no factual or legal basis for these claims.
As the State correctly pointed out above, Superior Court Criminal Rule 48 and 11 Del. C. § 207 provide that the State may reindict and prosecute a defendant for the same offense where a nolle prosequi has been entered on those charges. As a result, any argument Mr. Ahern could have conceivably advanced regarding double jeopardy or vindictive prosecution would have been in opposition to Superior Court rules and Delaware law. In addition, Mr. Ahern's understanding of the case before he assumed the role of defense counsel was that Mr. Radulski and Mr. Wilmer had not expressed any problems with notice of the reindictment, and that their decision to go forward with trial was strategically sound. In the absence of anything more, Mr. Ahern was in no position to second guess that strategy in the March 6, 2001 motion. His "failure" to raise these claims was therefore reasonable.
The same holds true for the issue of vouching. Mr. Ahern's records do not reveal a discussion with Mr. Wilmer on this matter, but Mr. Ahern points out that if the issue had any redeeming merit, it should have been raised on direct appeal by Mr. Radulski. Since Mr. Radulski did not address this issue on appeal, Mr. Ahern's subsequent presentation of the vouching issue to the Court would have been barred by Rule 61(I)(4). Regardless, that contention is without merit.
The text of the trial transcript reveals that Judge Barron cautioned the jury that:
. . . it is never permissible for any witness to bolster the credibility of another witness by attesting to another's credibility. Therefore, you must not regard the testimony of the guidance counselor, Miss Estes, or the police officer, Detective Reutter, as vouching for the alleged victim's credibility."
July 23, 1997 Trial Tr. at 54.
In light of this statement, both Mr. Radulski and Mr. Ahern were reasonable for not raising the issue of judicial misconduct in this respect during either the appeal or in the March 6, 2001 motion.
Upon a review of the record, this Court finds no error or omission on the part of counsel, especially in light of the lack of factual or legal support for each of the claims Mr. Wilmer argues Mr. Ahern should have raised. Mr. Wilmer has failed to demonstrate that counsel's assistance was unreasonable and has thus failed the first prong of the Strickland test. As a consequence, the Court need not reach the second prong of Strickland.
Because Mr. Wilmer cannot establish that he received ineffective assistance of counsel, Rule 61(i)(5) does not apply, and consideration of the balance of his claims is foreclosed by the bars set forth in Rule 61(i)(1) and (2). His constitutional claims are unfounded and without merit, and he has failed to state a colorable claim that a miscarriage of justice or constitutional violation has occurred. He has also failed to demonstrate the fundamental fairness or integrity of the proceedings was compromised in such a way as to excuse his claims from the procedural bars set forth in Rule 61.
CONCLUSION
For the foregoing reasons, Mr. Wilmer's motion for post- conviction relief must be, and hereby is, denied.
IT IS SO ORDERED.
.