State of Delaware v. Archie.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY ) ) ) ) ) ) ) ) ) ) ) STATE OF DELAWARE v. HARL AN AR CHIE, Defend ant. Submitted: Decided: I.D. No. 9610016622 June 6, 2002 August 12, 2002 ORDER UPO N DE FEN DAN T'S M OTIO N FO R PO STC ONV ICTIO N RE LIEF . DENIED. ORDER Paul R. Wallace, Deputy Attorney General, Wilmington, Delaware, Attorney for the State. Leo Joh n Ramu nno, Wilm ington, De laware, A ttorney for D efendan t. Ableman, J. This 14th day of August, 2002, upon consideration of the papers filed by the parties and th e record in th is case, it appea rs that: (1) On Augus t 20, 1997, a fter a two-d ay trial, a jury found D efendan t, Harlan Archie, gu ilty of Robbery First Degree, Possession of a Deadly Weapon During the Commission of a Felony, Possession of a W eapon by a Person P rohibited, and Burglary Second Degree. The Court sentenced Defendant as a habitual offender to a ma ndatory fortyeight year term of Level 5 incarceration, followed by probation.1 Defendant subsequen tly appealed his conviction. On December 29, 1998, the Supreme C ourt affirmed Def endant s conviction. 2 Defendant has now filed this M otion for P ostconvictio n Relief p ursuant to Super ior Cou rt Crimi nal Ru le 61. (2) The facts leading up to Defen dant s con viction are se t forth in detail in the Supre me Co urt s op inion af firming his con viction. 3 Briefly, on September 23, 1996, Defendant met his victim , Robert W illiamson, on a bus and they decided to go shopping together. W illiamson w as 28 years old at the time and suffered from cerebral palsy. After shopping at the mall, they returned to Williamson s house. In the following weeks, Defe ndant a sked W illiamso n for m oney. W illiamso n twice loaned mone y to Arch ie. 1 The Court initially sentenced Defendant on November 21, 1997. However, having determined that it incorrectly interpreted the habitual offender statute, the Court vacated that sentence and conducted a second sentencing hearing on December 19, 1997. 2 Archie v. S tate, 721 A.2d 924 (Del. 1998) 3 Id. at 925-926. 2 (3) On October 12, 1996, Archie returne d to Williamson s home in search of more money. When Williamson opened the door, Defendant threatened him with a knife and told Williamson he would kill him if Williamson called the police. Williamson gave Defendant forty dollars. Defendant returned later the same day and took another fo rty dollars from Williamson. On O ctober 15, 1996, D efendant again returne d to Williamson s apartmen t. While Williamson slept, Defendant cut the telephone lines and broke into the living room. Defendant demanded money from Williamson and took twenty do llars, a gym bag, an d a pair o f sneak ers. (4) In his defense, Defendant testified that Williamso n gave him money to buy marijuana, which Williamson denied. Defendant told Williamson that he had spent the money on other items, but Williamson did not seem to care. Defendant also denied ever pulling a gun on Williamson. At the conclusion of the evidence, the jury found Defendant guilty on all charges. (5) Under established procedure, the Court must first determine whether Defendant has met the proced ural requirements of S uperior Court Crim inal Rule 61(i) before the Court may consider the merits of the postconviction relief claims.4 This is Defendant s first motion for postconviction relief. However, as explained below, the Court finds that Defendant s second a nd third gro unds for re lief are proc edurally barred pursuant to Rule 61(i)(3) . The C ourt ma y otherw ise con sider the merits o f Def endan t s motio n. 4 Young er v. State, Del. Supr., 580 A.2d 552, 554 (1990 ). 3 (6) In support of his motion, Defendant raises three grounds for relief: that he received ineffective assistance o f counse l, that his sentence represents cruel and unusual punishm ent, and that the Court s determ ination that Defendant was a habitual offender violated his right to due process of law. Defendant claims that his second and third grounds for relief w ere not raised due to def ense cou nsel s ineff ective assistan ce of cou nsel. (7) Defendant s first ground for relief alleges ineffective assistance of counsel by his defense attorney at trial and during his appeal. A criminal defendant who raises an allegation of ineffective assistance of counsel must show that an attorney's conduct did not meet reasonable professional standards so that such conduct was prejudicial to the defenda nt. 5 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 represe ntation." 6 A defendan t alleging prejudice must be a ble to show that "cou nsel s errors were so serious as to deprive the defendant of a fair trial, a trial wh ose result is reliable. 7 (8) A defendant's burden to establish a claim of ineffective assistance of counsel is difficult to meet since there is a strong presumption that the attorney's conduct was reasonable.8 Defendant must also "[o]vercome the presumption that, under the 5 Strickland v. Washington, 466 U.S. 668 (19 84). 6 Renai v. Sta te, 450 A.2d 382 , 384 (Del. 1982)(citations om itted). 7 Strickla nd, 466 U.S. at 687. 8 Id. at 669. 4 circumstances, the challenged action might be considered sound trial strategy." 9 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 prosec ution th at the trial was re ndered unfair a nd the v erdict re ndered suspec t. 10 (9) In support of his initial ground for relief, Defendant first claims that his counsel failed to prop erly investigate an d prepare f or his trial. Def endant claim s that his counsel did not prepare for trial and d id not meet with his client prior to trial and that counsel was generally unprepared for the legal proceedings. Defendant alleges that counsel did not fully investigate th e case or inv estigate all defenses which might have been available. Defend ant also argu es that his cou nsel failed to fully and intelligently inform Defendant about a plea offer extended by the State. Specifica lly, he submits tha t counsel did not inform him of the possibility of a ha bitual offen der enhan cement to any ultimate senten cing. (10) Defendant does not elabora te further in his memorandum in support of his motion for postconviction relief as to any specific behavior of his counsel to support h is general allegations of unpreparedness. In response, the State requests that the claims be dismissed as conclusory. In his reply memorandum, Defendant attempts to specify the 9 Id. at 681. 10 Lockha rt v. Fretwe ll, 506 U.S. 364, 369 (1993)(quoting Nix v. Whiteside, 475 U .S. 157 , 175 (1 986)). 5 behavio r on behalf of his defense counsel to which he refers. Defendant claims that his attorney never met with him while he was awaiting trial and that he never met his attorney until the day of trial. Counsel did not spea k to Defenda nt regarding a plea off er. Counsel failed to call any of the witnesses he informed Defendant he would call, nor did he argue any of the points of law specifically requested by Defendant. Defendant also claims that counsel did not investigate the possibility of character witnesses or other defense related witnesses. Defendant claims that, counsel did not fa shion a defense fo r no other reason that counsel had not met with the Defendant sufficiently to even determine the existence of one. (11) Defendant also argues that his counsel failed to fully and intelligen tly inform him of a plea offer by the State. Specifically, counsel advised him of a twenty-year offer by the State, but did not inform him of the possibility of an habitual offender enhancement to any ultimate sentencing. Defendant claims that, had he known the true possibility of facing a mandatory sentence of forty-eight years if convicted at trial, he wou ld have accepted the p lea offer. (12) By affidavit, Defendant s counsel refutes the allegations made by Defendan t. Counsel states that he met with Defendant on several occasions to discuss the legal elements and factual nature of the offenses involved, his possible defenses, and other aspects of the case . Counsel and Defendant discussed a defense strategy which entailed trying to discredit the alleged victim and prov iding Defenda nt s testimony as an alternative to that of the a lleged v ictim. Counsel states that, because the incidents between Defendant 6 and the alleged victim were not witnessed by others, there were no additional w itnesses to contact. (13) Counsel avers that he discussed w ith Defen dant the possibility of presenting character evidence, but because Defendant was a career criminal facing life imprisonment, counsel believed that cross-examination of those witnesses could have proved devastating. Counsel states that he reviewed the discovery materials provided by the State to prepare Defen dant s case and re quested ad ditional disco very to help support Defen dant s version of events. (14) Defense counsel also avers that he fully advised Defendant of the plea offer extended by the State. The plea offer extended to Defendant included e ntering a gu ilty plea to Robbery First Degree, an admission that Defendant was a habitual criminal, and a twenty- year minimum mandatory sentence. Counsel explains in h is affidavit tha t, because the habitua l offende r statute under which Defendant was sentenced was relatively new, he had intended to argue that habitual offender status could not be applied to each crime for which Defendant was convicted if he went to trial. However, counsel states that he reviewed with Defend ant the poss ibility that Defendant could face additional mandatory time for the other charges if convicted after trial. Counsel also discussed with Defendant the fact that he faced the possibility of u p to life impr isonmen t if he rejected the plea of fer and w ent to trial. Counsel states that Defendant sh owed no interest in ac cepting the plea offer, but continued to assert his innocence. 7 (15) Upon review of the record in this case and the af fidavit of Defend ant s trial counsel, the Court cannot find that counsel s representation of Defendant prior to and during trial did not meet reasonable professional standards so that his conduct was prejudicial to Defendant. Despite Defendant s allegations that counsel never met with him p rior to trial, counsel states that he met with Defendant on several occasions and reviewed with him h is trial strategy and other matters. In addition, counsel reviewed all discovery offered by the State and requested additional information that he thought wo uld be helpful to D efendant s defen se. (16) Nor can the Court find that Defendant s claims th at Couns el failed to call any of the witnesses he informed Defendant he would call, did not argue any of the points of law specifically requested by Defend ant, and failed to investigate the possibility of character witnesses or other defense related w itnesses con stitute ineffective assistance of counsel. Rather, given coun sel s explanations for his tactics in his affidavit, the Court finds that De fenda nt s claim s repres ent sou nd trial str ategy on behalf of cou nsel. (17) The Court cannot find that counsel misled Defendant regarding the terms of the plea offer by the State. Although counsel concedes that he did not believe at the time that the habitual offender statute allowed Defendant to be sentenced separately for each crime, counsel avers that he explained to Defendant that he faced the possibility of additional mandatory time, and indeed, that he faced the possibility of a life sentence if convicted on all counts. As a result, the Court cannot find that counsel s conduct in conve ying the State s plea offer to Defendant did not meet reasonable professional standards. 8 (18) Defendant also claims that his counsel failed to raise all possible issues when appealing Defendant s conviction. Defendant argues that the sole issue raised on direct appeal was wheth er the Cou rt erred by refus ing to grant a mistrial due to prosecuto rial misconduct regarding an improper closing statement made by the State. Defendant argues that the appeal failed to address sentencing matters and to raise issues of ineffective assistance o f counse l. (19) Counsel states by affidavit that he fully examined the trial court record and transcript while preparing for appeal. In reviewing the case for appeal, counsel did not find, nor did he believe, that th ere were a ny valid issues to be raised other than the issue he included in the appeal. Counsel states that he did not include the sentenc ing issues rais ed in Defendant s motion for postconviction relief because controlling Delaware case law did not suppo rt those a rgume nts. (20) Again, the Court finds that Defendant has failed to show that counsel s performance in representing Defendant on appeal was deficient. Other than Defendant s generalized claim that counsel failed to raise all potential errors on ap peal, the on ly specific grounds for appeal Defendant identifies that counsel erroneously failed to raise are the sentencing issues included in this motion and issues of inef fective assistan ce of c ounse l. (21) Defendant does not specify what issues of ineffective assistance of counsel he believes should have been raised o n direct appeal. How ever, it is well settled that the Supreme Court will not consider claims of ineffective assistance of counsel for the first 9 time on direct appeal if they were not raise d to the tr ial court below . 11 Defendant did not raise any claims of ineffective assistance of counsel at trial. Therefore, the Supreme Court would properly have refused to hear them on direct appeal. As a result, the Court cannot find that cou nsel w as ineff ective b y failing to include such iss ues on direct ap peal. (22) Defendant also claims that counsel should have raised the sentencing matters, more fully addressed in Defendant s motion. The Court must assume that Defendant refers to the second and third grounds raised in his motion for postconviction relief. As discussed in detail below, the Court finds that those issues are without merit. As such, even if it were to accept that counsel s failure to include those issues in his direct appeal of Defendant s conviction did not meet reasonable professional standard s of behavior, the Court f inds that D efendan t has failed to show that counsel s error would have affected the outc ome o f Def endan t s appe al. (23) Therefore, for the reasons set forth above, the Court finds Defendant s initial ground for relief, inef fective assista nce of co unsel, to be w ithout merit. (24) Defendant claims in his second ground for relief that his sentence represents cruel and unusual punishment. Defendant claims that the sentence imposed for his crimes is so disproportionate to the offenses that it represents clear and manifest cruel punishm ent. Initially, the Court finds that Defendant s second ground for relief cannot be considered upon its m erits because Defend ant failed to raise the issue in the proceedings 11 Del. Sup r. Ct. R. 8; Dubro ss v. State, 494 A.2d 1265, 1267 (D el. 1985). 10 leading to the judgment of conviction. Therefore, the ground is barred under Sup erior Court Criminal Rule 61(i)(3). However, because Defendant claims that such failure constituted ineffective assistance o f counse l, the Court w ill address the iss ues raised in that c onte xt on ly. (25) Defendant argues in support of his second ground for relief that Defendant s sentence w as grossly dispro portionate a s applied to h is conduc t. Defendant states that he was accused of stealing $131.00 and supposedly threatened the victim with a knife. This was the same individual who had befriend ed [Def endant,] ha d becom e his roommate, and loa ned him mone y in the pa st. Defend ant claims th at sentencin g him to forty-eight years in p rison for tak ing $131 is clearly and m anifestly cruel pu nishmen t. (26) Because Defendant s sentence is the result of the application of the habitual offender statute , Defendant essentially argues that 11 Del. C. § 4214, the habitual offender statute, is unco nstitutional. Th e Delaw are Supre me Cou rt has held that a proportion ality analysis is not required for review of a sentence imposed under the habitual offender statute.12 Acco rdingly, Williams upheld the constitutionality of the statute.13 As a result, the Court cannot find that counsel erred by failing to raise the above-outlined argument in Defen dant s direct appeal because w ell-settled De laware ca se law clea rly 12 Williams v . State, 539 A.2d 164, 18 0 (198 8), cert. denied, 488 U.S. 969 (1988 ). 13 Id. See als o, Summ ers v. State, 2000 W L 1508 771 (De l. 2000); State v. Walton, 2002 W L 126 400 (D el. Supe r. 2002 ). 11 controls the issue. Therefore, the Co urt finds that Defend ant s second ground for relief also is without m erit. (27) Defendant s final ground for relief in support of his motion is that the Court s determination of Defendant s habitual offender status violates due process of law. Specific ally, Defendant argues that, because Defendant s sentence was enhanced based upon prior criminal convictions, the fact of those prior convictions must have been alleged in an indictm ent and proved to a jury be yond a re asonab le doub t. (28) Defendant s third ground for relief also cannot be considered upon its merits because Defendant failed to raise the issue in the proceedings leading to the judgment of conviction. Therefore, the ground is barred under Superior Court Criminal R ule 61(i)(3). Howeve r, because D efendan t claims that su ch failure constituted ineffective assistance of counsel, the C ourt will address the is sues raise d in that c onte xt on ly. (29) Defendant concedes that the United States Su preme C ourt has he ld that, [o] ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonab le doubt. 14 This Court has previously determined that Appren di is inapplicab le to a proceeding under Delaware s habitual criminal statute.15 14 Apprendi v. New Jersey, 530 U .S. 466 , 490 (2 000)(E mpha sis adde d). 15 State v. Payne, 2001 WL 755347 (D el. Super. 2001). 12 (30) Howeve r, Defendant argues that, despite the language of Apprendi s holding, the fact of an alleged prior conviction should be a factor that must be alleged in an indictment and proved to a jury beyond a reasonable doubt. Defendant notes that the fact of a prior conviction exception to Apprendi s rule is based upon the S upreme Co urt s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1 998). Almendarez-Torres held that there was no constitutional violation where a judge increased a criminal sentence above the otherwise applicable statutory maximum based upon the fact of three earlier convictions for aggravated felonies.16 (31) Defendant argues that, while the rule of Apprendi incorporates the Almendarez-Torres holdin g, Appren di went ou t of its way to cast the future viability of Almendarez-Torres into do ubt. Ind eed, Apprendi expressly declined to revisit the holding in Almendarez-Torres, stating, [e]ve n though it is arguable th at Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, A pprendi d oes not contest the decision s validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the genera l rule w e recalle d at the o utset. 17 (32) Howeve r, given the holding of Apprendi, the Court cannot find that counsel was unreasonable by failing to raise this issue in D efendan t s appeal. D espite 16 17 Almendarez-Torres v. United States, 523 U.S. 224 (19 98). Apprendi, 530 U.S. at 489-490. 13 language casting the holding of Almendarez-Torres into qu estion, Apprendi s holding specifically states, [o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum m ust be submitted to a jury and proved beyond a reasonable doubt. As noted above, this Court has previously determined that Appren di is inapplicable to a proceeding under Delaware s habitual criminal statute. Therefore, the Court cannot find th at Counsel s failure to raise this issue on direct appeal constituted ineffective assistance of counsel. The ground is otherwise procedurally barred pursua nt to Ru le 61(i)(3 ). (33) Defendant also argues in support of his third ground for relief that the Court asked Defendant to admit his prior convictions at the habitual offender hearing without properly advising Defendant of his C onst itutio nal rights. Sp ecif ically, Defendant argues that at no time was he advised of his Constitutional right against self-incrimination and his admissions as to the prior guilty pleas were the basis for the determination of his prior convic tions. (34) Review of the transcripts of Defendant s habitual offender hearings conducted on Novemb er 21, 1997 and D ecember 19, 199 7 do not support D efendant s allegations. Those transcripts reveal that, when questioned, Defendant actually denied part of his form er conv ictions. 18 18 Instead, the Court clearly made its own fin dings as to h is Sent. Tr. of Nov. 21, 1997 at 6-8. 14 habitual offender status based upon its review of the record and guilty plea forms signed by Defe ndant. 19 (35) The Court cannot find that any error was c ommitted by the Court in determining the existence of prior convictions in order to designate Defendant a habitual offender pursuant to the statute. This Court has previ ousl y determined that there is no requirement for witnesses or other evidence to be presented to establish habitual offender statute. Mere d ocumen tary evidence, if sufficiently compelling, may be the sole basis for the Court to make the requisite findings to support a defendant s habitual offender status.20 (36) It follows that the Court cannot find that counsel was ineffective by failing to raise this issue on D efendan t s direct appe al, as it is clearly without merit. Again, the Court finds that the issue is otherwise proc edurally barred pursuant to Ru le 61(i)(3). Therefore, the Court finds that Defendant s third and final ground for postconviction relief, that his habitu al offend er determin ation violated due proc ess, is withou t merit. 19 Sent. T r. of No vemb er 21, 19 97 at 7- 17; Sen t. Tr. of D ec. 19, 1 997 at 7 -17. 20 Hemb ree v. State, 1997 W L 3310 3 (Del. 199 7); Stone v. Sta te, 1994 WL 276984 (Del. 1994 ); Alls v. State, 1988 W L 265 90 (D el. 1988 ). 15 In conclusion, the Court finds that all of the grounds in sup port of Defend ant s Motion for Po stconv iction R elief pu rsuant to Rule 6 1 are w ithout m erit. Therefore, Def endant s Mo tion is hereby DENIED. IT IS SO ORDERED. ___________________________ Peggy Ableman, Judge oc: Prothonotary 16

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