State of Delaware v. Franklin.

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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD F. STOKES 1 THE CIRCLE, SUITE 2 SUSSEX COU NTY CO URTHOU SE GEORGET OWN, DE 19947 JUDGE November 29, 2005 John M . Franklin SCI P.O. Box 500 Georgetown, DE 19947 RE: State v. Franklin, Def. ID# 0304010407 DATE SUBMITTED: September 2, 2005 Dear Mr. Franklin: Pending before the Co urt are the following motions o f John M. Frank lin ( defendant ): motion for postcon viction relief filed pursuant to Superior C ourt Criminal Rule 6 1 ( Rule 61"), motion for an evidentiary hearing on the Rule 61 motion, motion to expand the record to include a letter from his siste r stating th at he alw ays was m entally s low , m otion fo r the reten tion of a psychiatrist to conduct a mental health evaluation on defendant, and motion for my recusal from considering the other motions. This is my decision denying all of the pending motions except the one to expand the record to include his sister s letter. On February 25, 2004, after a six (6) day jury trial, the jury found defendant guilty of five (5) counts of rape in the first d egree causing a n injury, one (1 ) count of terro ristic threatenin g, and one (1) coun t of endangering the welfare of a child. On Feb ruary 25, 2004, this Cou rt sentenced defendan t as follows. On each rape in the first degree count, he was sentenced to twenty-five (25) years at Level 5, for a total of one hundred twenty-five (125) years; the first 1 fifteen (15) years of each sentence was mandatory as required by statute. 11 Del. C. § 4205. On the terroristic threatening conviction, the Court sentenced defendant to one (1) year at Level 5. On the endangering the welfare of a child conviction, it sentenced him to one (1) year at Level 5, followed by six (6) months at Level 3. Defendant appealed to the Delaware Supreme Court. That Court affirmed the judgment of the Super ior Court. Franklin v. State, Del. Supr., No. 106, 200 4, Ridgely, J. (March 2, 2005 ). The first motion I consider is the one to recuse myself. Set forth below is the law which guides my decision on this motion. A judge is required to be impartial in actuality and in appearance. Canon 3C of the Delaware Judges C ode of Judicial Con duct codifies this standard. Th erein, it is provided in pertinent part: Disqualification. (1) A judge should disqualify himself or herself in a proceeding in which the judge s impartiality might reasonably be questioned, including but not limited to instances where: (a) The judge h as a person al bias or preju dice conc erning a party.... As explained in Los v. Los, 595 A.2d 381 , 384-85 (Del. 1991 ): Where the basis for the alleged disq ualification is a claim, under Cann on 3C(1), that the Judge has a personal bias or prejudice concerning a party, no per se or automatic disqualification is required. Previous contact between the judge and a party, in the same or a different judicial proceeding, does n ot require automatic disqualification. [Citations omitted.] To be disqualified the alleged bias or prejudice of the judge must stem from an extrajudicial source and result in an opinion on the m erits on some basis oth er than what the judge learned from his participation in the case. [C itation omi tted.] ... When faced with a claim of personal bias or prejudice under Canon 3C(1) the judge is required to engage in a two-part analysis. First, he must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party. Second, even if the judge believes that he has no bias, situations may arise where, actual bias aside, there is the appearance of bias sufficient to cau se doub t as to the jud ge s impartiality. [Cita tion omitte d.] 2 The fact that ad verse rulings were mad e against a defen dant in the p revious p roceedings does no t provide a re ason for recu sal. Weber v. State , 547 A.2d 948, 952 (Del. 1988 ), reargu. den., 571 A.2d 948 (Del. 1988); Brown v. State , 840 A.2d 641 (Del. 2003); Manchester v. State , Del. Supr., No. 351, 19 97, Berger, J. (April 3, 1998); In the Matter of the Petition of Joseph A. Wittrock for a Writ of Prohibition, 649 A.2d 105 3 (Del. 1994); Haskins v. State, Del. Supr., No. 188, 1991, M oore, J. (Aug. 19, 1991); State v. Fink, Del. Super., Def. ID# 0003008673, Vaughn, R.J. (July 19, 2002) at 2-3. Prev iously having sentenced a d efendant is not enough to require recusal. Miller v. State, Del. Supr., No. 236, 1994, Hartnett, J. (May 9, 1995). Again, to repeat one of the holdings in Los v. Los, 595 A.2d at 384, the alleged bias or prejudice `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. Accord Jackson v. State , 684 A.2d 745, 753 (Del. 1996); State v. Fink, Del. Super., Def. ID# 0005008005, Vaughn, J. (June 14, 2002) at 5-6, aff d, 817 A.2d 781 (Del. 2 003). The objectivity is viewed, not through the defendant or his attorney s eyes, but from an objective o bserver s v iewpoin t. State v. Phillips, Del. Super., Def. ID# 0201017168, Ableman, J. (July 3, 2003) at 12-13. As explained in State v. Phillips, supra at 16-17: [T]here is a compelling policy reason for a judge not to disqualify herself at the behest of a party who claims an appearance of prejudice, without a factual or reasonable objective basis to do so. In the absence of genuine bias, a litigant should not be permitted to shop for a judge of his or her choosing. ... In short, the orderly administration of justice cannot be subject to a party s self-created, unsupported claims of prejudice or the appearance of bias. A party must s et forth facts sho wing impa rtiality or the claim fails. Bennett v. State, Del. Supr., No. 110, 199 4, Holland, J. (Decem ber 19, 1994); Browne v. State , Del. Super., Def. ID# 93K00 678, Rid gely, P.J. (May 11, 1 993), aff d, Del. Supr., No. 184, 1993, Moore, J. (Dec. 30, 3 1993). In the case at hand, defendant argues that the trial court show s [sic] appearance of impropriety and that the trial court will not treat his Rule 61 motion fairly. In support thereof, he argues the following. This Jud ge has presided over three trials wh ere he was a defendant. 1 This Judge made pretrial rulings in the ca se at hand which favo red the State of Delaware ( the State ). Those rulings were with regard to prior bad acts, and they allowed for testimony beyond the bad acts which contaminated the integrity and fairness of the trial. It was clear during sentencing that this Judge harbored strong feeling [sic] about Franklin s drinking and acts against his wife and the Ju dge appare ntly viewed th e rape of Mrs . Franklin as an attack on the judicial p rocess. Finally, he believes the Judge s comments at sentencings in October, 20032 and Febru ary, 2004, prejudice him from receiving a full and fair review of this Rule 61 motion. I have reviewed the transcript of the Jan uary 30, 2004, sentencin g of defendant on his driving under the influence conviction in State v. Franklin, Def. ID# 0304010407A. I have 1 At one point, the following charges were pending against defendant in one case: rape first causing an injury (5 counts); terroristic threatening; endangering the welfare of a child; driving under the influence (fourth offense); unlawful sexual contact in the third degree (2 counts); and sexual harassment. I granted defendant s motion to sever the various charges to prevent prejudice to him. The order prov ided that the rape first, terroristic threatening and endan gering the welfare of a child charges would b e tried in one trial (State v. Franklin, Def. ID# 0304010407C); the unlawful sexual contact in the third degree and sexual harassment charges would be tried at another trial (State v. Franklin, Def. ID# 0304010407B); and the driving under the influence charge would be tried at a third trial (State v. Franklin, Def. ID# 0304010407A). I presided over each trial. Defendant was con victed of the driving under the in fluence charge and the charges in the case at hand. He was acquitted of the unlawful sexual contact in the third degree and sexual harassment charges. 2 Defendant was convicted of driving under the influence on October 28, 2003, and sentenced thereon on January 30, 200 4. Apparently, it is this sentencing of January 30, 20 04, to which de fendant is referrin g. 4 reviewed the transcripts of the trial and the sentencing in this matter. I have reviewed the Presentence Report which was prepared in connection with defendant s sentencing on the driving under the influence conviction. I presided over three trials involving defendant and sentenced him in two of those case s as well as on a violation o f probation in another case. M y exposure to defendant through these judicial proceedings has led me to conclude he has an alcohol problem and when drin king, he commits crimes. B ecause defendant has continued to drink and commit crimes over a long period of time, I concluded the safety of the community was of paramount importance and he was not the type of person who should be returned to the community. I also concluded he o bsessively wanted to con trol one of the victims and w ould pose a dan ger to her if not incarcerated. I expressed these opinions at the time I sentenced defendant in this case. I have no other opinions regarding defendant. I do not have any personal bias or prejudice towards him. I am satisfied that I can consider the pending motions free of bias or prejudice. Furthermore, there is absolutely nothing in the record or in defendant s motions which would provide any objective basis for concluding that the Court s consideration of these postconviction matters will inhibit the public s confidence and integrity in the judicial system. To restate, defendant has not set forth any facts or evidence which would establish a lack of impartiality. In conclusion, I deny the motion to recuse. I now turn to the merits of the motion for postconviction relief, which contains two claims of ineffective assistance of counsel. Since this is the first time defendant could advance these claims, they are n ot proced urally barred. To establish a claim of ineffective assistance of counsel, defendant must show that trial 5 counsel s representation fell below an objective standard of reasonableness and but for the attorney s unp rofessional e rrors, the outc ome of the trial would h ave been different. Strickland v. Washington, 466 U.S. 668 (1984). With regard to the actual prejudice aspect, [d]efendant must show that there is a reason able probability that, but for counsel s un professional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland v. Washington, 466 U.S. at 6 94. The Supreme Court recently has expressed the necessity of obtaining an affidavit from trial counse l where a de fendant ass erts claims of in effective assistan ce of couns el. Guinn v. State, Del. Supr., No. 52, 200 5, Holland, J. (Sept. 7, 200 5) at 5; Horne v. State, Del. Supr., No. 520, 2004, Holland, J. (Aug. 5, 2005) at 5-6. The affidavit requirement is important to the first prong of defendant s burden. However, because I rule that defendant cannot establish the prejudice prong even if he shows trial counsel was ineffective, no need exists for the affidavit to be provided. Defendant s first argument is that trial counsel was ineffective because she failed to object to an immediate senten cing and failed to offer mitigating evidence at his sentencin g. The only non-concluso ry argument he advances in co nnection with this claim is that trial counsel should have produced mitigating evidence that he was m entally slow. In support thereof, he seeks to include in the record a letter from his sister explaining that he was mentally slow.3 As defendant correctly notes, this Co urt sentenced defendan t immediately upon his conviction. In January, 2004, the Court had reviewed the previously-referenced Presentence 3 This letter does not establish his family was poor and was unable to obtain help for him, which is an argument he seems to make. 6 Report which the Investigative Services Office prepared upon defendant s conviction on a felony driving under the influence ch arge. This Court noted the d ay before the verdict was returned in this case that it would be a waste of taxpayer resources to require the preparation of another Presentence Report merely a month after the last report had been submitted and announced that the Court was prepared to sentence defendant should he be convicted. Transcript of February 24, 2004, proceedings at F-99. The Court also stated: So that means that if there is anything that you want to say tomorrow from the defense s viewpoint, you should be ready. I just wanted to give you a heads-up. Id. I will assume that trial counsel should have presented the mitigating evidence defendant references. However, he cannot establish the outcome would have been different. The Court was aware, through the Presentence Report, that defendant was of below average intelligence. Since the Court already had that information when it sentenced defendant, defendant cannot establish prejudice and this claim fails. Defendant next argues that trial counsel was ineffective because she failed to file a motion that this Court recuse itself from presiding over the trial in this matter. In support thereof, he argues as follows. This Judge presided over two other trials of defendant before this one took place. The Trial Court had prior knowledge of defendant s drinking, mood swings, and prior bad acts . The Trial Court knew too much prejudicial information to be making pretrial rulings or presiding over the trial. Finally, it is obvious this Judge harbored strong feelings about Franklin s prior D.U.I., Drink ing and mo od swings against his wi fe. I will assume that trial counsel shou ld have filed the motion to recu se. Defendant, however, cannot meet the prejudice prong; i.e., he cannot show that the outcome of the trial 7 would h ave been other than w hat it was. I refer defendant to the standards for recusal set forth earlier. I also note these additional principles. [A] judge s participation in prior proceedings involving a defendant does not per se disqualify his participation in subsequent, unrelated proceedings. Weber v. State, 547 A.2d at 952. Furthermore, as explained in State v. Fink, Del. Super., Def. ID# 0003008673, Vaughn, J. (July 19, 2002), at 2-3: It is generally held that the fact that a judge has presided over an earlier trial involving a defendant does not disqualify that judge from presiding over a later trial involvin g the same de fendant. [Cita tion and foo tnote omitt ed.] I can conclusively state that I would not have granted a motion to recuse. I did not then, and I do not now, feel personal bias or prejudice towards defendant. Furthermore, defendant has not cited any fact which demonstrates that the Court s participation as the trial judge in this case inhibited the public s confidence and integrity in the judicial system. Since defendant cannot establish the prejudice prong, this claim fails also. For the foregoing reasons, I deny defendant s motion for postconviction relief. In light of the for egoin g, no n eed ex ists fo r an ev iden tiary he aring, a nd I de ny that reque st, also . Fina lly, becau se defen dant di d not p resent a ny evide nce or a rgumen t to sup port the appoin tment o f a psychiatrist, I deny that motion. In conclusion and for the foregoing reasons, I deny each of defendant s pending motions with the exception o f the motion to expand the record to include his sister s letter. IT IS SO ORDERED. Very truly yours, 8 Richard F. Stokes cc: Prothonotary s Office Carole J. Dunn, Esqu ire Adam D. Gelof, Esquire 9

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