Rollins v. State ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DUANE ROLLINS, §
§
Defendant Below, § No. 35, 2015
Appellant, §
§
v. § Court Below—Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for New Castle County
§ Cr. ID No. 1212010904
Plaintiff Below, §
Appellee. §
Submitted: June 15, 2015
Decided: August 25, 2015
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 25th day of August 2015, upon consideration of the appellant’s Supreme
Court Rule 26(c) brief, the State’s response,1 and the record below, it appears to
the Court that:
(1) In February 2013, the appellant, Duane Rollins, was indicted for two
counts of Strangulation and one count each of Assault in the Second Degree,
Offensive Touching, Terroristic Threatening, Assault in the Third Degree, and
Endangering the Welfare of a Child. These charges arose from Rollins’ assault on
1
The appellant’s motion for leave to file a brief in reply to the State’s response is denied.
Supreme Court Rule 26(c) (“Rule 26(c)”) does not contemplate such a filing and the appellant
makes the same arguments in his motion that he raised in response to his counsel’s motion to
withdraw.
his pregnant girlfriend and her son. On September 4, 2013, Rollins pled guilty to
two counts of Strangulation and the State entered a nolle prosequi on the remaining
charges. As part of the plea agreement, the State indicated that it would seek to
declare Rollins a habitual offender under 11 Del. C. § 4214(a) on the second count
of Strangulation, but would waive proceeding against Rollins as a habitual
offender on the first count of Strangulation, the State agreed to cap its Level V
recommendation on the second count of Strangulation to fifteen years, and Rollins
agreed that he was eligible for habitual offender sentencing. During the guilty plea
colloquy, Rollins told the Superior Court that he signed the Truth-In-Sentencing
Guilty Plea form after reviewing it with his trial counsel, he freely and voluntarily
decided to plead guilty, he understood that he would not have a trial and was
waiving certain constitutional rights, he committed both counts of Strangulation,
and he understood that he faced a sentence of five years to life imprisonment.
(2) On November 15, 2013, after he was a declared a habitual offender as
to the second count of Strangulation, Rollins was sentenced to fifteen years of
Level V incarceration for the second count of Strangulation and five years of Level
V incarceration, suspended for decreasing levels of supervision, for the first count
of Strangulation. On appeal, Rollins argued that the sentencing judge, as well as
the prosecutor and his trial counsel, mistakenly believed that Strangulation was
statutorily categorized as a violent offense under 11 Del. C. § 4201(c) and required
2
at least a minimum mandatory sentence of five years of Level V incarceration
under Section 4214(a). The State agreed and filed a motion to remand for
resentencing. This Court vacated the Superior Court’s judgment and remanded for
resentencing.2
(3) On June 10, 2014, Rollins filed a motion to withdraw his guilty plea.
In the motion, Rollins argued that his guilty plea was not knowing, intelligent, and
voluntary because his trial counsel mistakenly believed that Strangulation was a
violent felony and incorrectly informed Rollins that he faced a minimum
mandatory sentence of five years for Strangulation. Rollins claimed that he
considered this minimum mandatory time in deciding to plead guilty. The State
opposed the motion and argued that Rollins did not meet his burden of showing
that there was fair and just reason to permit the withdrawal of his guilty plea under
Superior Court Criminal Rule 32(d).
(4) On July 31, 2014, Rollins filed a pro se motion to dismiss his trial
counsel and for appointment of new counsel. Rollins argued that his trial counsel
provided ineffective assistance by misinforming him that he faced a five year
minimum mandatory sentence and by showing letters he exchanged with the victim
to the State and reading portions of those letters aloud at the November 15, 2013
sentencing hearing. On August 7, 2014, Rollins’ trial counsel filed a motion to
2
Rollins v. State, 2014 WL 1116891 (Del. Mar. 19, 2014).
3
withdraw on the grounds that Rollins had filed a complaint with the Office of
Disciplinary Counsel regarding the minimum mandatory sentence mistake and the
letters. The Superior Court denied all of the motions in a letter opinion dated
August 22, 2014. Rollins filed a pro se notice of appeal, which was dismissed as
interlocutory.3
(5) On January 16, 2015, Rollins was declared a habitual offender and re-
sentenced to ten years of Level V incarceration for the second count of
Strangulation and five years of Level V incarceration, suspended after two years
for decreasing levels of supervision, for the first count of Strangulation. As a
result of the remand and re-sentencing, Rollins’ non-suspended Level V time
decreased from fifteen years to twelve years. This appeal followed.
(6) On appeal, Rollins’ counsel (“Counsel”) filed a brief and a motion to
withdraw under Rule 26(c).4 Counsel asserts that, based upon a complete and
careful examination of the record, there are no arguably appealable issues. By
letter, Counsel informed Rollins of the provisions of Rule 26(c) and provided
Rollins with a copy of the motion to withdraw and the accompanying brief.
(7) Counsel also informed Rollins of his right to identify any points he
wished this Court to consider on appeal. Rollins has raised several issues for this
3
Rollins v. State, 2014 WL 5479593 (Del. Oct. 28, 2014).
4
Rollins was represented by different counsel in the Superior Court.
4
Court’s consideration. The State has responded to the issues raised by Rollins and
asked this Court to affirm the Superior Court’s judgment.
(8) When reviewing a motion to withdraw and an accompanying brief
under Rule 26(c), this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and (ii)
conduct its own review of the record and determine whether the appeal is so totally
devoid of at least arguably appealable issues that it can be decided without an
adversary presentation.5
(9) On appeal, Rollins argues that he was entitled to withdraw his guilty
plea because his trial counsel provided ineffective assistance by misinforming him
that he was subject to a five year minimum mandatory sentence for Strangulation
as a habitual offender. Although we generally do not consider claims of
ineffective assistance of counsel on direct appeal that were not first raised and
addressed in the Superior Court,6 Rollins’ ineffective assistance of counsel claim
was raised and addressed in the Superior Court. In its August 22, 2014 letter
opinion, the Superior Court found that Rollins was not prejudiced by his trial
5
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del. 1996).
6
See, e.g., Desmond v. State, 654 A.2d 821, 829 (Del. 1994) (declining to consider ineffective
assistance of counsel claim that was not decided in Superior Court). See also Cooke v. State, 977
A.2d 803, 848 (Del. 2009) (recognizing that Court does not generally address ineffective
assistance of counsel claims on direct appeal, but considering claim where “the actions of trial
counsel are not disputed and are clearly reflected in the Superior Court proceedings”).
5
counsel’s mistake regarding the minimum mandatory sentence for the second
count of Strangulation. Accordingly, we will address this claim.
(10) The defendant bears the burden of showing a fair and just reason to
permit withdrawal of his plea.7 In determining whether the defendant has
established a fair and just reason to withdraw his plea, the Superior Court should
consider: (i) whether there was a procedural defect in taking the plea; (ii) whether
the defendant knowingly and voluntarily entered the plea; (iii) whether the
defendant has a basis to assert legal innocence; (iv) whether the defendant had
adequate legal counsel; and (v) whether granting the motion would prejudice the
State or unduly inconvenience the court.8 To establish ineffective assistance of
counsel, a defendant must show: (i) that his counsel’s representation fell below an
objective standard of reasonableness; and (ii) but for his counsel’s errors, he would
not have pled guilty but would have insisted on going to trial.9
(11) During the guilty plea colloquy, Rollins told the Superior Court that
he signed the Truth-In-Sentencing Guilty Plea form after reviewing it with his trial
counsel, he freely and voluntarily decided to plead guilty, he understood that he
would not have a trial and was waiving certain constitutional rights, he committed
7
Super. Ct. Crim. R. 32(d).
8
Scarborough v. State, 938 A.2d 644, 649 (Del. 2007).
9
Hill v. Lockhart, 474 U.S. 52, 57-59 (1985).
6
both counts of Strangulation, and he understood that he faced a sentence of five
years to life imprisonment. Absent clear and convincing evidence to the contrary,
Rollins is bound by these representations.10
(12) There is no dispute that Rollins was misinformed that he faced a
minimum mandatory sentence of five years Level V incarceration on the second
count of Strangulation. There is nothing in the record, however, to support
Rollins’ conclusory claim that he would have insisted on going to trial if he had not
been misinformed of the five year minimum mandatory sentence. As the Superior
Court recognized, this case presented the unusual situation where Rollins
ultimately got a better deal than what he originally bargained for. This is not a
case involving “a misstatement which may lead a defendant into believing that the
penalty is less than the law provides, thus causing the defendant to plead guilty
when he might not have otherwise done so.”11 Rollins’ non-suspended Level V
time actually decreased from fifteen years to twelve years after the remand and
resentencing.
(13) By pleading guilty, Rollins obtained the benefit of the State agreeing
to cap its Level V recommendation on the second count of Strangulation to fifteen
years and dismissing multiple charges against him, including Assault in the Second
10
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
11
Allen v. State, 509 A.2d 87, 89 (Del. 1986).
7
Degree. If Rollins had insisted on going to trial, he would have faced the risk of a
sentence, as a habitual offender, of eight years to life imprisonment because
Assault in the Second Degree is a violent felony under Section 4201(c).12 The
notion that Rollins would have rejected the State’s plea offer if he had known the
actual sentencing range for the two counts of Strangulation was zero years to life
imprisonment and insisted on going to trial while facing a sentencing range of
eight years to life imprisonment is simply not credible.
(14) Aside from his trial counsel’s incorrect advice regarding the
minimum mandatory sentence, Rollins does not identify any other basis for
withdrawal of his guilty plea. Rollins does not contend, and the record does not
reflect, a basis for Rollins to assert legal innocence. Rollins also does not dispute
the Superior Court’s conclusion that the State would be prejudiced if the motion to
withdraw was granted. Having carefully reviewed the record and the positions of
the parties, we conclude that the Superior Court did not err in finding Rollins was
not prejudiced by his trial counsel’s mistake regarding the minimum mandatory
sentence and in denying the motion to withdraw the guilty plea.
12
Under Section 4214(a), a person convicted of a fourth or subsequent violent felony shall
receive a minimum sentence that is not less than the maximum statutory penalty for the fourth or
subsequent felony that forms the basis for the State’s habitual offender petition. The maximum
penalty for Assault in the Second Degree is eight years of Level V incarceration. 11 Del. C. §
612(d) (assault in the second degree is a Class D felony); 11 Del. C. § 4205(b)(4) (maximum
penalty for Class D felony is eight years of Level V incarceration).
8
(15) Rollins next claims that his Counsel has provided ineffective
assistance on appeal. This claim was not raised or addressed in the Superior Court
and will not be considered for the first time on appeal.13
(16) Finally, Rollins argues that his sentence as a habitual offender under
Section 4214(a) violated his due process rights. This claim was not raised in the
Superior Court so we review for plain error.14 There is no plain error here.
(17) To the extent Rollins is arguing that he could not be declared a
habitual offender because Strangulation is not a violent felony under Section
4201(c), he is incorrect. The fact that Strangulation was not a violent felony under
Section 4201(c) meant that the Superior Court was not required to impose a
minimum mandatory Level V sentence of five years for the second count of
Strangulation under Section 4214(a), not that Rollins was ineligible for habitual
offender status.
(18) Under Section 4214(a), a person who has been convicted three times
of a felony and is convicted of a subsequent felony can be declared a habitual
offender. Rollins agreed in the plea agreement, his guilty plea colloquy, and at
both sentencing hearings that he was eligible for habitual offender sentencing due
to three previous felony convictions--Trafficking in Cocaine in 2007, Maintaining
13
See supra n.6.
14
Supr. Ct. R. 8.
9
a Dwelling for Keeping Controlled Substances in 1998, and Possession of a Deadly
Weapon by a Person Prohibited in 1996. Strangulation is a felony.15 Rollins could
therefore be declared a habitual offender under Section 4214(a) for the second
count of Strangulation. As to Rollins’ contention that a jury was required to find
he was eligible for habitual offender sentencing, this claim is without merit.16
(19) This Court has reviewed the record carefully and has concluded that
Rollins’ appeal is wholly without merit and devoid of any arguably appealable
issue. We also are satisfied that Rollins’ counsel has made a conscientious effort
to examine the record and the law and has properly determined that Rollins could
not raise a meritorious claim in this appeal.
15
11 Del. C. § 607.
16
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (excluding fact of prior conviction from
facts that must be submitted to jury and proven beyond reasonable doubt to increase the penalty
for a crime beyond the prescribed statutory maximum); Reed v. State, 2015 WL 667525, at *2
(Del. Feb. 12, 2015) (relying on Apprendi to reject defendant’s argument that jury needed to find
he was convicted of previous felonies before he could be sentenced under Section 4214(a)).
10
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Karen L. Valihura
Justice
11