State of Delaware v. Hamby.
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SUPERIOR COURT OF THE STATE OF DELAWARE J EROME O. H ERLIHY J UDGE N EW C ASTLE C OUNTY C OURT H OUSE W ILMINGTON, DE 19801-3733 May 3, 2005 Daniel C. Hamby SBI #134464 Dorm # 2 H.R.Y .C.I. P.O. Box 9561 Wilmington, DE 19809 RE: State v. Daniel C. Hamby ID No. 0401018750 & 0402007273 Submitted: April 19, 2005 Decided: May 2, 2005 Upon M otion of the Defe ndant for Po stconviction Relief - DENIED Dear Mr. Hamby: You have filed a motion for postconviction relief raising three grounds for relief and one of ine ffective ass istance of c ounsel: 1. Your sentence for felony shoplifting should have been the same as your codefendant, Charlotte Hardy. 2. The shoplifted merchandise was recovered. 3. The sentence was unfair because your sentence was in excess of the guidelines. 4. Defense counsel should have been aware of the co-defendant s probation sentence for the same offense. No greater sentence than that should have been imposed or the charge dismissed. State v. Daniel Hamby 0401018750 & 0402007273 Page 2 Background You pled guilty on M ay 20, 2 004, to fe lony sho plifting and to fourth offense driving under the influence. On that date you were sentenced to eighteen months at Level V on the shoplifting charge and six months at Level V, followed by probation, on the DUI charge. The plea agreement to the felony shoplifting and the DUI, which you signed, states you agreed you w ere a hab itual offend er. The a llegedly re quisite prior felony convictions were listed on th e agreem ent. The Sta te, in that agreement, asked that you be declared a habitual offender and sentenced as one on the shoplifting cha rge. The State s recommended sentence was eighteen months in jail to be imposed under 11 Del. C. ยง4214(a). When independently reviewing your criminal record, I discovered that two of the prior felonies liste d, while carrying crimina l action nu mbers three yea rs apart, had in fact been sentenced on the same day. Therefore, you did not ha ve the req uisite three s eparate prior felony co nvictions to be dec lared a ha bitual offender. T he shop lifting charg e to which you pled made the third separate felony . As a consequence, and as I announced at sentencing, you were not eligible for habitual offender status and I did not sentence you as a habitual offender. You did not appeal the sentence. On August 11, 2004, M ichael M odica, E squire, filed , on you r behalf, a motion to reduce your sentence . He made several claims for that reduction. One, he noted the State v. Daniel Hamby 0401018750 & 0402007273 Page 3 shoplifted property had been recovered. Two, he argued that your criminal record meant that you should have received a Lev el V (jail) sentence of up to six months. I denied the motion on August 2 1, 2004. The denial notes you agreed you were a habitual offender and to be sentenced as such but that you were not. It also says you received your sentence based on your criminal record. After this denial, you filed pro se three motions for modification of your sentence. In the first, you asked that you be allowed to enter Key and, upon completion, your Level V sentence be su spended. The Department of Correction did not make that request, so I denied it on October 6, 2004. Your second mo tion raises th e same guideline point M r. Mod ica raised. It also repeats your request about Key. I denied that motion on January 14, 2005, as being filed past 90 days from sentencing, w ithout extraordinary circumstances, and because the original sentence w as appropriate. You filed a third m otion making similar claims to all the prior motions adding information about programs. I denied this third motion on F ebruary 9, 2005, as repetitive and indicated any program completion accomplishment must be made, if it wishes, through an application by the Department of Correction. Now y ou have filed yo ur motion for postconviction relief. Discussion While you entitle your current motion as one for postcon viction relie f, it is a thinly disguised additional motion for a sentence reduction. Mr. Modica s motion, your second State v. Daniel Hamby 0401018750 & 0402007273 Page 4 motion, and this latest motion all raised an identical issue. That is, that your eighteen month Level V sentence was above guidelines. First, this is not an appropriate basis for postconviction relief. Second, it has been raised twice previously and rejected twice previously. Third, sentencing guidelines are just that, guidelines and are not binding.1 Fourth, your serious criminal record dating back to 1978 in this Court alone, includes convictions for assault third degree, trafficking, burglary third degree, receiving stolen property, forgery, drug offenses, and various violations of probation. Your felony record did not contain the requisite three separate prior felonies to be declared as a habitual offender on the shoplifting charge.2 Even so, it warranted the eighteen months Level V sentence imposed. Your current m otion and Mr. M odica s m otion also raised an other iden tical point. It, too, is irrelevant as a basis for postconviction relief. Both motions note that the shoplifted property wa s recovered. This is a re petitive state ment an d since it re lates to a reason for sentence reduction and not postconviction relief, it is denied, again. The other two gro unds for postco nviction relief are interrelated . One is c ouched in the terms of a claim of ineffective assistance or counsel. These two claims relate to the sentence your co -defenda nt, Char lotte Hardy, received. She, too, pled to felony shoplifting. She was sentenced to one year in jail but suspended for one year of probation. 1 McReynolds v. State, Del.Supr. No. 91, 1993, Veasey, C.J. (June 23, 1993)(ORDER). 2 Buckingham v. State, 482 A.2d 327, 330 (Del. 1984). State v. Daniel Hamby 0401018750 & 0402007273 Page 5 Your first claim related to her sentence is that your sentence should have been the same as hers. First, this claim s is not a ba sis for postc onviction relief. Seco nd, it is arguably a basis for a sentence reduction. But you raise it more than 90 days after the sentence I impose d on yo u May 20, 200 5. For th at reason alone it is reje cted. Bu t to compare her sentence to your is bogus. Her plea was he r first felony. Her criminal record is minimal. It includes only three misdemeanors. To compare her record to yours of many felonies and many misdemeanors and many violations of probation is a non-starter. The interrelated claim fo r postcon viction relie f is that your counsel was ineffective because he should have been aware of her sentence and urged upon me a similar sentence. To demonstrate ineffective assistance o f counsel you m ust show (1) tha t counsel s conduct fell below som e objective standa rd of reasonab leness and (2) bu t for counsel s error you were prejudiced.3 It is unclear against whom your claim of ineffectiveness is made. If it were the attorney representing you in your case and at the plea and sentencing, this claim is baseless. You were sentenced on May 20, 2004. Hardy was sentenced on June 21, 2004. That attorney therefore, could not have known on May 20th of her sentence. If your claim is against Mr. Modica who filed his motion for you on August 11, 2004, there is an arguable basis he should have been aware of and claimed that her sentence was a basis for getting your sentenced reduced. 3 Grosvenor v. State, 849 A.2d 33, 35 (Del. 2004). State v. Daniel Hamby 0401018750 & 0402007273 Page 6 That argument will get nowhere, however. Your sentence was based on your record and the new charges to which you pled. As noted, her record and yours are not comparable. Even if Mr. Modica had raised her sentence as a basis for reducing yours, I would not have ac cepted it as a valid reason. In short, you cannot meet the prejudice test and your claim of ineffective assistance fails.4 Conclusion For the reasons stated herein, the defendant Daniel Hamby s motion for postconviction relief is DENIED. IT IS SO ORDERED. J. 4 Stone v. State, 690 A.2d 924, 926 (1996).
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