State of Delaware v. Smith.
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SUPERIOR COURT OF THE STATE OF DELAWARE JEROME O. H ERLIHY JUDGE D ANIEL L. H E R R M A N N C OURT H OUSE W ILMINGTON , DE 19801-3353 Submitted: October 5, 2001 Decided: October 31, 2001 Mr . Char les E. Smith Gande r H ill 1301 East Twelfth Street Wilmington, D E 19802 RE: State v. Edwar d Smith a /k/ a Charle s E. Smith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Motion for Pos tconviction Relief - DENIED Dear M r. Smith: You have filed a Rule 61 motion mak ing the following claims: 1. On the date of the offenses to which you pled guilty, M ay 6, 2000, you were not arrested, fingerpr inted or photographed. T his resulted in a denial o f your rights to due process. 2. The arresting officers abused their authority by coercing you into making drug buys and indicating that there would be no charges against you if you cooperated. 3. T he indictment was defective because no evidence was presented to the grand jury to support an intent to deliver. Also, you contend there was an unnecessary delay fr om the tim e of the date of the offen se to the indic tment. 4. The prosecutor err ed by (a) not being present at your sentencing and (b) incorrectly noting on the plea agreement that you were a habitual offender. 5. Your assigned public defender was not present at your sentencing and had not been present during on e of your case review s. You also claim he failed to follow up on Rule 16 discovery and do some investigating. State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 2 6. The sentencing judge remarked about your drug dealings which you contend is incorrect. Your assigned counsel s absence meant this went unchallenged. 7. The presentence officer was not thorough in her in vestigation, especially about your drug history and criminal recor d. You also compla in about being interviewed thirteen days prior to your sentencing. You say that you were never able to discuss the presentence reports s contents with your lawyer. The background of these claims is that you pled guilty on Februar y 20, 2001 to possession with intent to deliver heroin, assault second degree and carrying concealed a deadly weapon. In exchange for these guilty pleas, the State dropped a number of other charges against you. The plea agreement you entered into contained a State-recommended sentencing cap of seven years. This was not a Rule 11 (e)(1)(c) sente nce agr eemen t. That agreement also stated the State would not seek to have this Court declare you to be a habitual offender. On May 25, 2001, you we re sen tenced to se ven year s in jail and additional incarceration which was suspended, however, for several years of probation. On July 29 th you wrote the sentencing judge seeking a sentence reduction, basically asking to get into a level 5 drug treatment program. The sentencing judge denied your application on August 22, 2001. Shortly ther eafter, you filed this motion for postconviction r elief. DISCUSSION Your guilty pleas operate as a waiver to several of yo ur claims for relief. 1 The claims waived by your pleas are (1) failure of the police to arrest and fingerprint you, (2) police misconduct in handling your charges and (3) insufficient evidence prese nted to the Grand Jury to support the indictm ent and un due delay from offense da te to indictment (five months). 2 By so ruling, of course, the Court is not passing on the merit or lack thereof on these claims. Your next claim of error is that the prosecutor was not present at your sentencing and incorrectly noted on the plea agreement that you were a habitual offender. 1 Murphy v. State, Del. Supr. , N o. 3 77, 1998, Berger, J. (October 26, 1998) 2 Wood s v. State, N o. 507, 1997, Har tnett, J. (June 12, 1998) (OR DE R). (ORD ER). State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 3 There is no requirement that the prosecutor of your case be present at your sentencing. This claim is without merit. In this Court, prior to the felonies for which you were sentenced in May 2001, you had one prior felony conviction. You have several felony convictions in Pennsylvania. You pled to three felonies here. The totality of your record makes you eligible to be classified and sentenced as a habitual offender. When I took your guilty pleas on Februar y 20 th, that eligibility was reviewed with you. W hen you were sentenced, you did not question your felony record. That record makes you eligible to be treated as a habitual offender and be sentenced up to life impr isonmen t. In short, the prosecutor made no mistake. Or , to put it another way, seven years is a lot better th an a life sente nce. The cla im of pr osecutor ial miscon duct is groundless. Your next basis for seeking postconviction relief is that the sentencing judge made inaccurate remarks about your drug history. I have read the transcript of the sentencing proceeding before Judge Ableman. Y ou and she had an exchange about the remark in the 1990 prese ntence r eport th at you sold drugs to suppor t your self. You told Judge Ableman you did not do that and denied saying it in 1990. You further complain about Judge Ableman s remarks concerning her experience as a F amily C ourt ju dge with per sons using drug s. Your compla int is nonsensic al. In your April 24, 2001 letter to the sentencing judge (you did not know then who it would be) you speak of your drug addiction. You w rite about how it made you a different person. You ask for treatment as part of your sentence. The bottom lin e is that your compla ints about w hat Judge Ablem an said is nothing more than a repackaged request to have your seven-year sentence reduced. In that Apr il 24 th letter, you write about the State s seven-year sentencing cap and say, ?I realize that these charges are very serious and am ready to take responsibility for braking [sic] the law. You use the comments of Judge Ableman to compla in that you were prejudiced by the absence at sentencing of your assigned attorney and that his absence meant Judge Ableman s remarks went unchallenged. You w ere represented at sentencing by counsel. Judge Ableman s remarks about which you complain you disputed at sentencing. Your denial at sentencing was more direct than counsel disputing them and contra dicts your curr ent claim th at they we nt unchalle nged. Based on your record, counsel, whether your assigned one or ano ther, may ha ve deem ed it in your best interest not to deny what was in the record. State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 4 You complained to Judge Ableman about never being on probation and never having drug treatment. T hat is clearly wrong. When you we re or iginally sente nced in this Court in 1990, you w ere (1) given four years of probation and (2) ordered to undergo evaluation and treatment for substance abuse. You violated that probation and did not even appear for your original violation proceeding. The violation report indicated that you had not under gone the c ourt-ordered substance abuse evaluation. Subsequent to these violations, you we re plac ed on pr obation for three y ears o n sever al conviction s in Pennsylvania. Your statements to Judge Ableman about not having been on probation, therefore, were contrary to the record. Any self-respecting attorney would have known that and not said what you did. This, coupled with your denial of telling the presentence officer in 1990 that you sold drugs, and your record ar e things that could easily and properly have caused Judge Ableman to sentence you to more than seven years. Your assigned counsel and the experienced counsel representing you at sentencing are aware of those kind of considerations and would have rather you not say them. Since you received a sentence no greater than you knew the State was going to ask for, but far less than what you could have received, there was no prejudice to you by the absenc e of your assigned c ounsel. In addition, since you compla in that coun sel s absence meant the judge s remarks went unchallenged, but the transcript shows you did, this aspect of yo ur com plaint is also gr oundless. Other than that m eritless claim of prejudice, you make no other claim and I cannot find any. The contention that Judge Ableman erred and that you were prejudiced by assigned counsel s absence is without mer it. This is not the only complaint that you make about the sentencing procedure. Next, you contend the presentence officer did not perform a thorough investigation. You further complain you were interviewed only thirteen days prior to your sentencing. Your generalized argument about this particular contention is that the re w as inaccur ate information in the re port an d that ther e was insu fficient attention to your treatmen t needs. You fail to mention what was inaccurate or where the investigation was not thorough. The presentenc e officer r epeated what yo u told her abo ut the offenses; basically your effort to evade or minimize your culpability. Much of the other information in the report is factual, your criminal record, for instance, or came from you. My own examination of the re port sh ows that it is tho roug h. Fur ther, there is n o relatio nship between your sentence and the interview thirteen days before. In sum, this ground for postconviction relief is meritless. State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 5 Some of your grou nds for postconviction relief infer, and one ground expre ssly states, there was ineffective assistance of counsel. To succeed on such a claim, you must show (1) counsel s representation fell below an objective standard of reasonableness and (2) but for counsel s unpr ofessional e rr ors, there is a reaso nable prob ability that the outco me of the proce edings w ould have bee n differ ent. 3 In addition, you must make specific allegations of prejudice and substantiate them. 4 Your compla ints of ineffective assistance are assigned counsel s (1) absence from one of the case reviews, (2) absence from sentencing, (3) failure to follow up on discovery, (4) failure to investigate and obtain favorable information and (5) informing you that you faced a 157-year sentence, if you went to trial and were found guilty of all the indicted charges. In a broad brush, you say some of these professional errors affected the plea process. In three separate indictments, you wer e charged with: 1. Possession of her oin with the inte nt to deliver it (maxim um pen alty 10 years) 2. Possession of heroin within 1000 feet of a school (30 years) 3. Criminal impersonation (1 year) 4. Carr ying a concealed deadly weapon (2 year s) 5. Possession of drug paraphernalia (1 year) 6. Trafficking in heroin, 5-15 grams (20 year s) 7. Assault second degree (8 year s) 8. Possession with the intent to deliver heroin (10 years) 9. Possession of heroin within 1000 feet of a school (30 years) 10. Possession of heroin within 300 feet of a park (15 y ears) 11. Possession of drug paraphernalia (1 year) 12. Resisting arrest (1 year) These maximums total 1 29 year s, 28 less than you claim your lawyer said you could get if c onvicted o n all these charges. That err or in math changes nothing. You were facing a lot of jail time. And, with your felony record, just one more conviction would have subjected you to a possible life sentence. A lawyer exercising his best 3 Bialach v . State, D el.Sup r. , 7 73 A. 2d. 383, 387 (2001). 4 Shelton v. State, D el.Sup r. , 7 44 A. 2d 465, 475 (2000). State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 6 professional responsibility is required to advise you of the consequences, so telling you of the maximum r isk you faced fulfilled that responsibility. Even the charges you pled to had a potential maximum of 20 years, substantially less than 129 years. In the end, you were sentenced to only seven years. You make several generalized non-specific allegations about failure to follow up on discov ery an d obtain favorable information, appear at sentencing and at one of your case review s. You do not, howev er, say wha t prejud ice any of th is caused you other than a similarly broad contention that you may not have pled guilty. That contention is rather hollow considering the record. Fir st of all, you told me during your plea colloquy and you checked off on the TIS guilty plea form that you were satisfied with your lawyer s advice. In the absence of clear and convincing evidence to the contrary, you are bound by these statements. 5 You have provided no such evidence. Nor have you shown or claimed what further discovery would have revealed or what exculpatory evidence exists. You had several case reviews on these charges. Two w ere set you did not show up for. You do not say what harm you suffered, if it is true your assigned counsel was not present for the c ase rev iews wh ere yo u appear ed. In all thre e of the cha rges to which you pled guilty, the events were witnessed by the Wilmington Police. At sentencing, you had a lawyer present. H e had read the presentence report. H e urged that you get minimal jail time and that the focus of Judge Ableman s sentence be instead on treatm ent. That was consistent with your April 24 th letter to her. And, you received no more time than the State s recommendation. T here is no showing, and proba bly never could be, that had assigned counsel been there, you would have received less jail time. To put it another way, you cannot show, and have not shown, that the sentence you received was in any way the result of assigned counsel s absence from sentencing. In sum, you have show n neither professional error occurred nor that, assuming error did occur, how you were prejudiced. For these reasons, your claims of ineffective as sistance of co unsel fail. 6 5 Somerv ille v. State, D el.Sup r. , 7 03 A. 2d 629, 631 (1997). 6 Dawso n v. State, D el.Sup r. , 6 73 A. 2d 1186 (199 6). State v. Charles E . Smith a/ k/a E dward S mith Cr.A. No. IN-00-10-0257-R1 ID No. 0008010453 Page No. 7 Your motion is a transparent gloss. You use a lot of the right words such as ineffective assistance of counsel, prejudice and so forth. But, you fail to make credible, specific claims. You cite to provisions in the United States Code which ar e inapplicab le to your arguments and claims. It is probably not coincidental that your motion for postconviction relief followed the denial of your pro se motion for reduction of sentence. You appear to be back-tr acking in w hat you w rote on Apr il 24, 2001, that you were willing to accept the consequences for serious crimes. Judge Ableman or dered you to get treatment while in jail. Since you failed to do it before, w hile on probation, you must follow through now. CONCLUSION For the reasons stated herein, the motion for postconviction relief of Edward Smith a/k/ a Charles E . Sm ith is DENIED. IT IS SO ORDERED. Sincerely, JOH/ bsb Original to Prothonotary cc Kathleen W. E dwards, Esq. Dade D. Werb, Esq. David J. F acciolo, Esq.
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