State of Delaware v. Grosvenor.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW C ASTLE COUNTY STATE OF DELAWARE v. JAMAH K. GROSVENOR Defen dant. ) ) ) ) ) ) ) ID No. 0204003496 Submitted: December 23, 2003 Decided: March 30, 2004 O P I N IO N Upon D efendant s Pro Se Motion for Postconviction Relief. Denied. Francis E. Farren, Esquire, Deputy Attorney General, Carvel State Building, 820 North French Street, Wilmington, Delaware 19801, for the State of Delaware. Jamah K. Grosvenor, Delaware Correctional Center, 1181 Paddock Road, Smyrna, Delaw are 199 77, De fendan t. Pro se. Kevin J. O Connell, Esquire, 831 N. Tatnall Street, Suite 200, Wilmington, Delaw are 198 01, trial co unsel fo r the De fendan t. JURDE N, J. Jamah K. Grosvenor (hereinafter defendant or Grosvenor ) filed the instant Motion for Postconviction Relief alleging ineffective assistance of counsel. For the reasons that follow, the defend ant s Motion is DENIED.1 Factual and Procedural Background Grosvenor was indicted on May 20, 2002 on the following charges: Robbery First degree ( 3 coun ts), Poss ession o f a Firearm During the Commission of a Felony ( PFDCF ) (6 counts), Aggravated Menacing (3 counts), Wearing a Disguise Durin g the Co mmissio n of a F elony (2 counts), Conspiracy Second Degree (2 counts), Resisting Arrest, Endangering the Welfare of a Child, and Possession of a Deadly Weapon by a Person Prohibited. These charges were related to an armed robbery at Peddler s Pit Stop that occurred on April 5, 2002. Grosvenor was arrested for these crimes along with three other co-defen dants: Rober t Benso n, Chris Gray, an d Brah eem Po teet. After pleadin g guilty and being sentenced, Grosvenor did not file a direct appeal. Grosvenor filed the instant pro se Motion for Postconviction Relief on April 7, 2003 , alleging ineffective assistance of counsel. After this Court requested written responses fro m the S tate and d efendan t s trial coun sel, Kev in O C onnell, 1 A separate Motion for Postconviction Relief filed by Defendant Grosvenor was recently dismissed by the Superior Court in a d ifferent case. See State v. Grosvenor, ID No . 00080 20754 , 2004 D el. Super. LE XIS 21 , Carpente r, J., (Del. Super. Ct. January 30, 2004). In the other case, Grosvenor challenged the entry of his guilty plea to Burglary Third Degree and Assault Third Degree. The Court mentions this only to avoid any confusion between the two cases. The disposition o f Grosven or s other m otion for po stconviction r elief has not influen ced the Co urt s analysis of the instant motion. 2 trial counsel filed an affidavit in response to the defendan t s allegations on August 12, 2003,2 and the State submitted its Response to Defendant s Motion for Postconviction Relief on August 20, 2003.3 Grosvenor filed a response to Mr. O Con nell s affidavit on September 23, 2003,4 but claimed that he did not receive the State s Response.5 Consequently, the C ourt forw arded a cop y of the State s Response to the defend ant. 6 The defen dant then filed a r eply to the State s Response on December 23, 2003.7 Briefing is now complete and this matter is ripe for consideration. Once the indictment in this case was issued, the Court placed Grosvenor on a Fast Track calend ar becau se he w as on pr obation at the time o f the indic tment. 8 According to the defendant s trial counsel, Mr. O Connell, the State o riginally offered a plea bargain that included a recommendation for an eleven (11) year sentence (eight (8) of which would be mandatory) on two counts of PFDCF, one count of Rob bery Fir st Degr ee, and an admissio n that G rosven or was in violation of probation.9 Accor ding to th e State, a p lea offer o f five (5) years Le vel V 2 See Kevin J. O Connell s Affidavit ( O Connell Aff. ) (Docket No. 21). See Letter from F rancis Farre n to the Cou rt dated Au gust 15, 20 03, serving a s the State s Re sponse ( S tate s Response ) (Docket No. 28). 4 See Defendant s Response to Kevin J. O Connell s Affidavit ( Defendant s First Reply ) (Docket No. 26). 5 See Defendant s letter filed November 3, 2003 (D ocket No. 27). 6 See Letter from the Court to Grosvenor dated December 2, 2003. 7 See Grosvenor s Response to Francis Farren s Memorandum ( Defendant s Second Rep ly ) (Docket No. 30). 8 See State s Response at 2. 9 See O Connell Aff. at ¶4(c). 3 3 incarceration was offered to the first defendant to plead guilty and cooperate, but the State has no recollection of offering five years to Grosvenor because of his F ast Track status.10 The plea offer of five (5) years was rejected by the other defendants. Prior to the Final Case Review, all four defendants and their individual counsel were permitted to meet as a group. Each defendant was represented by a different attorney. Mr. O Connell explains that the reason for the meeting wa s the fear that each of the defendants did not want to accept what was a rather generous plea extended to them for fear that they would be labeled a snitch. It was our hope, that if they all accepted the reasonable plea offer, none would be forced to testify against the other . 11 At this F inal Case Review , the State off ered each defend ant a plea to a seven (7) year term at Level V incarceration. Grosvenor and one co-defendant, Chris Gray, elected to take advantage of the plea offer and Grosvenor was ultimately sentenced to seven (7) years in prison. The other two co-defendants, Robert Benson and Braheem Poteet, elected not to take the plea and eventually went to trial. Benson and Poteet were both convicted of every count in the indictment and were subsequently sentenced to serve the minimum mandatory term of twenty-four (24) years in prison. 10 11 State s Response at 2, n.1. O Connell Aff. at ¶1. 4 Summary of Defendant s Allegations In the instant motion for postconviction relief, Grosvenor asserts several grounds of ineffe ctive assista nce of co unsel. T he defen dant claim s, inter alia , that (1) his co-defendant, Chris Gray, was coerced into signing the plea agreement, (2) all of his other state criminal charges were supposed to be dismissed as part of the plea bargain , (3) his trial counsel improperly refused to seek a suppression hearing, and (4) his trial counsel improperly refused to contact defense witn esses at his insistence.12 The Legal Standard for Claims of Ineffective Assistance of Counsel The defendant s motion is not pro cedurally barred b ecause it ra ises only claims of ineffective assistance of counsel and these claims have not been previou sly adjudicated.13 Accordin gly, this Court sh all address defen dant s substantive arguments. 12 See Motion for Postco nviction Re lief (Docke t No. 15) at 3; see also Grosvenor s Affidavit ( Defendant s Aff. ) attached to the Motion. 13 When analyzing a motion for postconviction relief, the Court must first apply the procedural bars of Del. Super. Ct. Crim. R . 61(I) ( Ru le 61 ) be fore consid ering the mer its of the individua l claims. Young er v. State , 580 A.2d 552, 554 (Del. 1990) [citations omitted]. Normally, any ground for relief that was not asserted in the proceedings leading to the judgmen t of conviction is thereafter bar red. Rule 6 1(I)(3). H owever, the proced ural bars set fo rth in Rule 61(I)(1)-(4) may be overcome 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 such an exception. Under this exception, the defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." State v. Wilmer, I.D. No. 9603002509, 2003 D el. Super. LE XIS 80 at *12-*13 (D el. Super. Fe b. 28, 20 03, amen ded M arch 12, 2 003), aff d 827 A.2d 30 (Del. 2003)). 5 Under the standard set forth in Strickland v. Washington,14 the defendant must establish tw o factors in order to prevail on a claim of ineffective assistance of counse l. In the context of a guilty plea challeng e, Strickland requires a defendant to show that: (1) counsel's representation fell below an objective standard of reasonableness, and (2) counse l's actions w ere so prejudicial that there is a reasonable probability that, but for counsel's errors, the defendant would not have pleaded guilty and would have insisted on going to trial. 15 The Strickland standard is highly demanding and, under the first prong of the test, there is a strong presum ption tha t the repre sentation was pr ofession ally reason able. 16 Under the secon d pron g, the defendant must affirmatively prove prejudice.17 To succeed on a claim of ineffective assistance of counsel, the defendant must not only make concrete allegations of cause and actual prejudice, he must also substan tiate them.18 As the United States Supreme Court has recognized, requiring a show ing of "p rejudice" from d efendan ts who seek to challenge the validity of their guilty pleas on the ground of ineffective assistance of counsel serves the fundamental interest in the finality of guilty pleas.19 14 Strickland v. Washington, 466 U.S. 668 (1984). Some rville v. State , 703 A.2d 629, 631 (Del. 1997), citing Albury v . State, 551 A.2d 53, 60 (Del. 1988 ) (quoting Hill v. Lockhart , 474 U .S. 52, 58 (1985) ); see also R ose v. State , 808 A.2d 1205 (D el. 2002). 16 Flame r v. State , 585 A.2d 736, 753 (D el. 1990). 17 Albury, 551 A.2d at 60 (citing Strickland, 466 U.S. at 693). 18 Young er v. State , 580 A.2 d 552, 5 56 (De l. 1990); see also So merville v. S tate, 703 A.2d 629, 632 (D el. 1997). 19 See Hill v. Lockha rt, 474 U.S. 52, 58 (1985). 15 6 Having carefully reviewed the briefs, affidavits, and the file in its entirety, this Court believes that an evidentiary hearing is not warranted or desirable.20 The record clearly ind icates that the instant motion is without merit. As demonstrated below, defendant fails to satisfy either prong of the Strickland test. The defendant has not shown that his trial counsel s actions were unreasonable or that he suffered actual prejudice as a result of counsel s co nduct. Acc ordingly, the d efendant s Motion for Po stconviction Relief is DENIED. Ana lysis By following his counsel s advice and accepting the plea offer, Grosvenor received only a seven (7) year term of imprisonment instead of the twenty-four (24) year term of imprisonment he could have received if he went to trial and was found guilty. The Court notes that his two co-defendants who rejected the plea offer and went to trial each received twenty-four (24) year sentences after they were convicted on all counts o f the indic tment. Grosvenor claims that Mr. O Connell coerced co-defendant Gray into taking a plea and testifying a gainst G rosven or. This claim is un found ed. The State filed a Motion to With draw G ray s plea a fter Gra y renege d on his promis e to testify 20 See Del. Super. Ct. Crim. R. 61(h)(3) ( Summary disposition. If it appears that an evidentiary hearing is not desirable, the judge shall m ake such d isposition of the motion as ju stice dictates. ); see also R ose v. State , 808 A.2d 1205 (Del. Oct. 18, 2002) ( It is within the discretion of the Superior Court to determine whether an evidentiary hearing is needed in a postconviction proceeding. ) (citing Del. Super. Ct. Crim. R. 61(h)). 7 truthfully . That motion was granted on April 4, 2003, and, on that same date, codefendant Gray entered in to a new plea agreement under which he would be imprisoned for eight (8) years. As the State correctly notes, Mr. O Connell had nothing to do with Gray s plea and could not have coerced Gray into taking such a plea.21 Theref ore, Gr osveno r s claim o n this gro und is w ithout m erit. Grosvenor also asserts that a conflict of interest existed because Mr. O Co nnell was no t looking out for his client s individual best interests during the meeting before the Final C ase Rev iew. G rosven or argu es that by p ersuadin g all the defendants to accept a guilty plea, his attorney was looking out for his codefendants best interests. But, as explained by Mr. O Connell, having all four codefend ants accept w hat amoun ted to a rath er gener ous plea offer w as in Grosven or s best interests. Otherwise, Grosvenor s co-defendants might have testified against him, and he could have been confronted with the imposition of a substantially longer sentence. Grosvenor cites Thom as v. Fo ltz22 in support of his conflict of interest argument. Thomas is clearly distinguishable. In Thomas, all three co-defendants were represented by the same attorney, whereas here each of the four co- 21 22 See State s Response at 3. 818 F.2d 476 (6 th Cir. 1987). 8 defend ants had their own counsel. Grosvenor s citation to Underwood v. Clark, 23 and the rule th at a defen dant cannot be made to plead against his wishes, however wise such a plea would be, is also misplaced. On his Truth-in-Sentencing Guilty Plea Form ( TIS Form ), Grosvenor indicated that he freely and volunta rily decided to plead guilty and that neither his attorney nor anyone else had threatened or forced him to enter the plea.24 Moreover, in contrast to his present contention, Grosvenor declared on h is TIS F orm tha t he was satisfied w ith his cou nsel's representation.25 In the absence of clear and convincing evidenc e to the co ntrary, Grosvenor is bound by his answers on the Truth-in-Sentencing Guilty Plea Form.26 Grosv enor s cla im on th is groun d is also w ithout m erit. Grosvenor next argues that all o f his other state criminal charges were supposed to be dism issed as p art of the p lea barga in, yet a few days after his plea in this case, he pled guilty to a charge of Possession of Cocaine in a separate case. As the plea agreement signed b y the defe ndant cle arly indica tes, Gro svenor s guilty plea in this case resolved all remaining charges on this indictment. 27 The written plea agreement clearly did not encompass charges outside of this particular indictme nt. 939 F.2d 473 (7 th cir. 1991). The Court notes that in Underwood the Seventh Circuit affirmed the denial of the defendant s habeas corpus petition. 24 See Grosvenor s TIS Form. 25 Id. 26 Some rville, 703 A.2d at 632, citing Fullma n v. State , 560 A.2 d 490 (D el. Feb. 22 , 1989); see also, E vans v. Sta te, 795 A.2 d 667 (D el. April 17, 2 002) (re quiring clear and conv incing eviden ce); Coverd ale v. State , 788 A.2d 527 (Del. Jan. 15, 2002) (also utilizing the clear and convincing evidence standard). 27 See Grosven or s Plea A greement. 23 9 Grosvenor asserts that his coun sel improperly failed to file a mo tion to suppress. Mr. O Connell notes, however, that there w as nothin g to sup press. Mr. O Connell explains that some of the incriminating evidence (a hat and a gun) was found in a building that Grosvenor had no connection with, thus he had no reasonable expectation of privacy in the building.28 Furthermore, Mr. O Connell notes that, prior to being arrested, Grosvenor only gave a limited statem ent in response to police questions regarding his identity and where he was going. The defendant gave no custodia l statemen t that the State intended to use against him at trial. There was no search of Grosvenor, his residence, or any other place in which he had a reasonable expectation of privacy. 29 There is simply no merit to this argum ent. Grosvenor also asserts that his trial counsel failed to contact witnesses that could have he lped in h is defens e. Gros venor c ontend s that he in formed his attorney that on April 5, 2002, he was in the area of South Gate Apartments for a second meeting with a w hite fema le named Cynthia and that he let Mr. O Co nnell know that her number should be in [his] cellular phone. 30 Grosvenor also claims that he was dropped o ff at the South Gate Ap artments by a friend named Cathy Padilla. 28 29 30 O Connell Aff. at ¶4(b). O Connell Aff. at ¶3. Defendant s Aff. at 1. 10 Mr. O Con nell responds: [I]t is truthfu l that Mr. Grosvenor informed me that he was in the area of the South gate Apartments on the morning of April 5, 2002 in ord er to mee t a female [named] Cynthia. He never indicated where she lived (other than Building No. 24) or any other identifying characteristics. An investigation of Building No. 24 revealed no one named Cynthia living there particularly at the location Mr. Grosvenor indicated to me in a letter dated July 29, 2002 ( it was the first door on the right, as soon as you go down the steps ). Mr Grosvenor never indicated to me that I could find this Cynthia by accessing his cellular phone. As to the friend named Cathy Padilla neither my indepen dent reco llection, no r any of m y notes fr om con versation s with Mr. Grosv enor, no r any of th e letters sen t to me by Mr. Grosvenor ind icate that a friend named Cathy Padilla could testify that she had dropped Mr. Grosvenor at the Southgate Apartments on April 5, 2002.31 The defendant s claims that counsel failed to investigate potential defense witnesses are not factually supported, thus Grosvenor has failed to meet his burden of provin g that he was denied a sub stantial con stitutional r ight. 32 Moreover, by pleading guilty, defendant gave up his trial rights, including the right to present evidence on his own behalf and to challenge th e charges against him; therefore, even if defendant s unsupported allegations regard ing his attorney s condu ct in preparing for trial are accepted as true, Grosvenor has not shown that the result of the proceed ings w ould ha ve been differen t.33 Grosv enor s v oluntary plea of g uilty 31 32 33 O Connell Aff. at ¶4(a). See Wilmer, 2003 Del. Super. LEXIS at *13. See Co verdale, ORDER at ¶6. 11 constitutes a waiver of any defects or errors occurring prior to the entr y of his plea. 34 He is not entitled to relief on these grounds. Conclusion There is no support for Gro svenor s allegations of ineffective assistance of counsel. Grosv enor s alle gations in his Mo tion for P ostconv iction Re lief fail to establish that coun sel s cond uct was professionally unreasonable or that the defendant suffered any prejudice.35 Given the circumstances, Grosvenor should be relieved that he was offered a plea and received only seven (7) years of incarceration as opposed to the twenty-four (24) years of incarceration that two of his co-defendants received after going to trial. In light of all this, the Court finds that the plea should be sustained on the ground that it was sought by defendant and freely taken as part of a barg ain which w as struck for th e defendan t s benefit. 36 For the foregoing reasons, defendant s Motion for Postconviction Relief is DENIED. IT IS SO ORDERED. ________________________________________ Jan R. Jurden, Judge 34 Coverd ale, ORDER at ¶4 (citing Down er v. State , 543 A.2d 309, 312-313 (Del. 1988)). See Strickland v. Washington, 466 U.S. 668, 688 (198 4). 36 Downer, 543 A.2d at 312 (quoting People v. Foster, 225 N.E.2d 200, 202 (1967) (upholding a guilty plea to a nonexistent offense)). 35 12

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