State of Delaware v. Parisi.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY STATE OF DELAWARE v. WILLIAM A. PARISI ) ) ) ) ) ) ) ) ) ID# 0009016131 Date Submitted: July 23, 2002 Date Decided: October 29, 2002 ORDER U PON D EFENDANT S M OTION FOR P OSTCONVICTION R ELIEF DENIED On this 29th day of October 2002, upon consideration of the Motion for Appoin tment of C ounsel filed by the Defe ndant and the record in this case, it app ears to the Court th at: (1) On March 26, 2001, Defendant entered a guilty plea to two counts of State v. Parisi ID# 0009016131 October 29, 2002 Page 2 Burglary Second Degree (IN 00-10-0552 and IN 00-10-0569). Pursuant to the plea agreement, the State agreed to enter a nolle prosequi on all remaining charges of that indictment. Defendant admitted that he was an habitual offender pursuant to 11 Del. C. § 4214(a) and agreed to sixteen (16) years Level V incarceration. On November 5, 2001, Defendant filed a motion for appointment of counsel pursuant to Superior Court Criminal Rule 61(e)(1) to assist him in p resenting his postconviction relief m otion. On Februa ry 22, 2002, the Court found that defendant s claims were meritless and the motion was denied. (2) On July 17, 20 02 De fenda nt filed th is Mo tion for Postco nviction Relief . Defend ant asserts a v ariety of groun ds in his mo tion for pos tconviction relief: (a) Defendant argues ineffective assistance of counsel and alleges the following: (i) plea agreement was materially defective and fraudulent as defendant agreed to a sixteen year sentence without the benefit of any good time and defendant did not fully understand the ramifications; defendant now claims that mandatory time without the benefit of any good time, is prejudicial; also defendant purports that this is a seventeen year sentence, rather than the agreed upon 16 year sentence, due to probation time which defendant did not understand must also be served; (ii) court illegally declared the defendant to be a habitual offender by State v. Parisi ID# 0009016131 October 29, 2002 Page 3 not informing him of the prior felony convictions; (iii) d efen dant did not e nter into plea agre eme nt kn owingly, voluntarily or intelligently because counsel did not sufficiently investigate as defendant claim s that his a ction s do n ot co nstitute th e crim e of b urglary; (iv) plea agreement w as accepted in violation of S uperior Court Criminal Rule 11; (v) counse l did not info rm defen dant of his r ight to appe al; (vi) counsel failed to prepare and subject prosecution s case to any meaningful adversarial testing; (b) Defendant additionally states that Mr. Pederson is not his attorney of record and had a con flict of interest w ith the prosec utor, Stephe n Walthe r, Esquire, du e to Mr. Pederson s previous employment position. (3) In evaluatin g a postco nviction relief motion, the Court m ust first ascertain if any procedural bars of Superior Court Criminal Rule 61(I) apply to the case.1 If a procedural bar is found to exist, the Court should refrain from considering the merits of the individual claims.2 Summary dismissal is prov ided for pursuant to R ule 61(d)(4) "[i]f it plainly appears from the motion for postconviction relief and the record of prior 1 See Younger v. State, 580 A.2d 552, 554 (Del. 1990); Super. Ct. Civ. R. 61(I). 2 See Id. State v. Parisi ID# 0009016131 October 29, 2002 Page 4 proceedings in the case that the movant is not entitled to relief, the judge may enter an order for its summary dismissal ..." This Court will not address claims for postconviction relief that are conclusory and unsubstantiated.3 Pursuant to Rule 61(a), a motion for postconviction relief must be based on "a sufficient factual and legal basis." In addition, pursuant to Rule 61 (b)(2), "[t]he motion shall specify all the groun ds for relief which are available to movant ..., and shall be set forth in summary from the facts supporting each of the grounds thus specified." (4) Moreover, to prevail on his ineffective assistance of counsel claims, Defendant must allege by clear facts the requirements of the Strickland test. 4 Under Strickland, Defendant must show that alleged counsel s course of conduct fell below an objective stan dard of rea sonablen ess and th at such actio ns were p rejudicial. 5 It is settled Delaware law that allegations that are entirely conclusory are legally insufficient to prove ineffective assistance o f counse l.6 Thus, Defendant must be able to show that defense counsel s error was objectively unreasonable and caused prejudice to Defendant s plea of 3 See Younger., 580 A.2d at 555; State v. Conlow, Del. Super., Cr. A. No. IN78-090985R1, Herlihy, J. (Oct. 5, 1990) at 5; State v. Gallo, Del. Super., Cr. A. No. IN87-03-05890594, Gebelein, J. (Sept. 2, 1988) at 10. 4 Mapp v. State, Del. Supr., No. 003, 1994, Holland, J. (Mar. 17, 1994) (ORDER). 5 Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). 6 1994). State v. Brittingham, Del. Super., Cr. A. No. IN91-01-1009-R1, Barron, J. (Dec. 29, State v. Parisi ID# 0009016131 October 29, 2002 Page 5 guilty. 7 Here, D efend ant s alle gations are not s ubstan tiated by a ny scintilla o f evide nce. (5) 8 Moreover, Defendant pled guilty to these charges, in doing so he signified that he understood the constitutional rights he was relinquishing by his plea. A defendant is bound by the statements he made on the sign ed Plea Form an d during the in court colloquy unless he proves otherwise by clear and convincing evidence.9 On the guilty plea form, Defendant indicated that he freely and voluntarily decided to plead guilty to the charge listed in the plea agreement. Most importantly, when asked, Defendant indicated that he was not under the influence of alcohol or drugs at the time he signed the guilty plea form that affected his ability to know and to understand the charge against him. Moreover, Defendant also indicated that he understood that the minimum period of incarceration for each offense is eight years and that there will be no good time associated with this sentence. Further, Defendant indicated to the Court that he had discussed th e docum ents and the plea agree ment with his attorney and was satisfie d with his attorn eys repre sentatio n of him . 7 See Strickland, 466 U.S. at 694. 8 Attached to his Motion for Postconviction relief is a Memorandum of Law in Support of Rule 61 Motion for Post-Conviction Relief. This Memorandum clearly does discuss the facts of this case, however it primarily indicates that defendant has changed his mind after a valid plea agreement was set forth and entered into. 9 Hickman, at 3-4; Smith v. State, Del. Supr., No. 465, 1989, Walsh, J. (Jan. 4, 1990) (ORDER). State v. Parisi ID# 0009016131 October 29, 2002 Page 6 In addition, defendant s attorney indicated that he had extensive conversations with Defendant about the plea. During the plea colloquy Defendant stated that he was able to understand that he was pleading guilty to two counts of burglary and by pleading guilty would be sentenced to sixteen years at Level V incarceration, without good time associated w ith the senten ce. Defe ndant ack nowled ged his sign atures on th e Truth in Sentencing G uilty Plea Form and the Plea A greement. Defe ndant stated on the record that he read the questions fo r himself and wro te his answers himself. F urther, the Court was able to witness Defendant s demeanor during the plea colloquy and found him to be alert and that he answe red the questions in an ap propriate manner. (6) Acceptance of his guilty plea did not violate Superior Court Criminal Rule 11 since the Court is required to impose a period of not less than six months probation whenever a c ourt imposes a period o f incarceration at Level V custody for one or mo re offenses that totals one year or more.10 (7) During the plea colloquy he responded yes to the Court s inquiry as whether he under stood that he was wa iving the righ t to appeal. (8) Finally, regarding the argument that Mr. Pederson was not the attorney of record in this c ase and h ad a conf lict because o f his previo us emplo yment, this is not a sufficient legal basis for a collateral attack upon the criminal conviction. 10 11 Del. C. § 4204(l). [Emphasis added.] State v. Parisi ID# 0009016131 October 29, 2002 Page 7 For the forgoing reasons the Court finds Defendant s motion meritless, thus Def endant s Mo tion for P ostconvictio n Re lief is her eby DENIED. IT IS SO ORDERED. ______________________________________ ALFORD , J. Prothonotary s Office - Criminal Div.
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