State v. West ( 2023 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
CRAIG A. KARSNITZ, SUSSEX COUNTY COURTHOUSE
RESIDENT JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5263
August 14, 2023
Kimberly A. Price, Esquire
Collins & Price
8 East 13th Street
Wilmington, DE 19801
Counsel for Petitioner
Haley W. King, Esquire
Deputy Attorney General, Department of Justice
13 The Circle
Georgetown, DE 19947
Counsel for the State of Delaware
Re: State of Delaware v. James E. West, Cr. No. 1905004787 and 1905004634
Motion for Postconviction Relief (R-1)
Dear Counsel:
Procedural Background
On March 2, 2020, James E. West (“Petitioner” or “Mr. West”) pled guilty to
two charges of Robbery in the First Degree and one charge of Robbery in the Second
Degree.1
1
Other offenses originally charged were ultimately resolved by nolle prosequi.
There were two plea offers made to Mr. West, through his trial counsel, James
P. Murray, Esquire (“Trial Counsel” or “Mr. Murray”) by the State of Delaware (the
“State”) in the case: one extended by Deputy Attorney General Rebecca E.
Anderson, Esquire (“Ms. Anderson”) (the “Anderson Plea Offer”) and another
extended by Deputy Attorney General Adam Gelof, Esquire, who had taken over the
case for the State from Anderson (the “Gelof Plea Offer”).
Under the Anderson Plea Offer, there were three (3) charges. The defense
could argue for a minimum mandatory sentence of eight (8) years of Level 5 time,
with a maximum sentence of 75 years, and the State would cap its recommendation
at 20 years. The Anderson Plea Offer expired.
Under the Gelof Plea Offer, which Mr. West views as less favorable than the
Anderson Plea Offer, there were seven (7) charges. The defense could argue for a
minimum mandatory sentence of nine (9) years of Level 5 time, with a maximum
sentence of 92 years. Mr. West accepted the Gelof Plea Offer.
On July 30, 2021, I sentenced Mr. West as follows: for the first Robbery in
the First Degree offense, 25 years at Level 5, suspended after 4 years; for the second
Robbery in the First Degree offense, 4 years at Level 5; and, for the Robbery in the
Second Degree offense, 4 years at Level 5. This sentence exceeded the amount of
Level 5 time which he had requested under the Gelof Plea Offer and would have
requested under the Anderson Plea Offer.
2
On November 15, 2021, I received Petitioner’s first pro se Motion for
Postconviction Relief under Delaware Superior Court Rule Criminal Rule 61 (the
“Motion”), dated November 10, 2021, with respect to the above-referenced matter,
together with a Memorandum of Law in Support of the Motion (the “Memorandum
of Law”) and an Affidavit to Accompany the Motion (the “Motion Affidavit”). The
sole ground that he stated for relief is that Mr. Murray violated his constitutional
right to the effective assistance of counsel by failing to properly notify him of the
Anderson Plea Offer before it expired, which violated his right to make a voluntary,
knowing, and intelligent assessment and acceptance of a guilty plea. His Motion did
not request the appointment of postconviction counsel, nor was I obligated to
provide postconviction counsel to him.2 Nonetheless, I later directed that
Postconviction Counsel (“PCC”) be appointed to represent Mr. West, as further
discussed below.
In his Memorandum of Law and Motion Affidavit, Mr. West made certain
allegations about, and he states quotations by, Mr. Murray. I thus expanded the
record to include a response to these allegations by Trial Counsel.3 Trial Counsel
submitted his affidavit (the “TC Affidavit”) on January 6, 2022, which became a
part of the record.4
2
Super. Ct. Crim. R. 61(e)(1) and (3).
3
Super. Ct. Crim. R. 61(g)(1).
4
Super. Ct. Crim. R. 61(g)(2).
3
The State filed its Answer on March 8, 2022.5 Mr. West filed his pro se Reply
on April 5, 2022.6 I granted his second request for the appointment of PCC, and,
after PCC was appointed, I held an evidentiary hearing on June 6, 2023.7 At that
hearing, three witnesses testified: Mr. West, Ms. Anderson, and Mr. Murray. Certain
email chains were admitted as evidence. After that hearing, I allowed the parties to
submit written post-hearing submissions. PCC filed her submission on July 28, 2023.
The State filed its submission on August 4, 2023.
The relief that Petitioner seeks in the Motion is that I order the State to re-
extend the Anderson Plea Offer to him so that he may accept it, after which I would
resentence him. This is my ruling on the Motion.
Evidentiary Hearing
The pivotal factual question of this case is: did Mr. West know about the
Anderson Plea Offer before it expired and reject it? I held the evidentiary hearing
primarily to address this question. I must weigh the credibility of the three witnesses,
whose testimony is, in several respects, diametrically opposed. The evidence
presented at the evidentiary hearing with respect to the Anderson Plea Offer is
summarized chronologically as follows.
5
Super. Ct. Crim. R. 61(f)(1) and (2).
6
Super. Ct. Crim. R. 61(f)(3).
7
Super. Ct. Crim. R. 61(h).
4
November 18, 2019
At the first case review, which Mr. West recalls, he and Mr. Murray discussed
a plea, the evidence in the case, and pretrial suppression motions. The State offered
20 years, and Mr. West countered with 11 or 12 years.
December 10, 2019
Mr. Murray testified that he met with Mr. West by video and passed along a
plea offer of 18 years from the State, which Mr. West rejected. Mr. West has no
recollection of this meeting.
December 18, 2019
Mr. Murray and Ms. Anderson exchanged emails. Ms. Anderson made the
Anderson Plea Offer, and stated that it remained open until January 17, 2020.
January 16, 2020
Mr. Murray and Ms. Anderson again exchanged emails. Anderson extended
the Anderson Plea Offer until January 24, 2020.
Mr. Murray testified that he met with Mr. West by video and discussed the
Anderson Plea Offer with him. Mr. West has no recollection of this meeting. The
Anderson Plea Offer is not memorialized in Trial Counsel’s notes of this meeting.
January 24, 2020
On the day the Anderson Plea Offer was to expire, Mr. West and Mr. Murray
met in person at Sussex Correctional Institution. Mr. West recalls this meeting. Mr.
5
Murray gave Mr. West a hard copy of the Anderson Plea Offer, but Mr. Murray
testified that it was discussed only briefly, if at all. Mr. West testified that it was not
discussed. The Anderson Plea Offer is not memorialized in Mr. Murray’s notes of
this meeting. Mr. Murray did not think that Mr. West was interested in the Anderson
Plea Offer, but rather in litigating pretrial motions. Mr. Murray did not have Mr.
West sign the rejection line on the Anderson Plea Offer because, according to Mr.
Murray’s testimony, that typically would happen only at case review and would be
presented to me. Mr. West discussed the Anderson Plea Offer with his fiancée after
he received the hard copy.
In an email to Ms. Anderson that same day, Mr. Murray informed the State
that Mr. West had rejected the Anderson Plea Offer.
March 2, 2020
After Petitioner’s pretrial motions were denied, he met with Mr. Murray to
consider the Gelof Plea Offer, which was ultimately accepted. During Mr. West’s
plea colloquy with me on this date, he stated that he was satisfied with Mr. Murray’s
representation of him. However, he testified in the evidentiary hearing that he was
not satisfied with Mr. Murray’s representation, and admitted that he lied to me about
this because he was afraid that the Gelof Plea Offer would be withdrawn. Moreover,
although given the opportunity to do so, Mr. West never mentioned anything about
the Anderson Plea Offer to me.
6
Mr. West puts heavy emphasis on the fact that, at the evidentiary hearing, Mr.
Murray generally did not have a strong recollection of the events in this case, and
that he failed to note in writing any discussion of the Anderson Plea Offer during the
video meeting on January 16, 2020 or the in-person meeting on January 24, 2020.
However, the facts of this case go back to 2019 and 2020, and it is not surprising
that Mr. Murray may not have a perfect recollection of those facts. It does not follow
that the mere absence of notes about the Anderson Plea Offer means that it was not
discussed. Mr. Murray explained that Mr. West was much more focused on the
pretrial motions than any plea at that time. Speaking of recollection, I am troubled
by Mr. West’s complete lack of recollection of the video meeting on December 10,
2019 and the video meeting on January 16, 2020. These both happen to be video
meetings, as opposed to in-person meetings with Trial Counsel. January 16, 2020
happens to be the day that Ms. Anderson emailed Mr. Murray to extend the Anderson
Plea Offer until January 24, 2020, and the day Mr. Murray testified he discussed the
Anderson Plea Offer with Mr. West.
Weighing all the email evidence and the testimony at the evidentiary hearing,
I find the testimony of Ms. Anderson and Trial Counsel more credible than the
testimony of Mr. West. Mr. West has convenient gaps of memory that belie the
documentation and extension of the Anderson Plea Offer.
7
I do so for several reasons. Mr. Murray testified that communicating a plea
offer to a client is the sine qua non of appropriate and effective representation. He
fulfills the obligation as often as he breathes. In addition, at Mr. West’s plea
colloquy, and at a time when he now asserts he was aware of what he now claims
was Mr. Murray’s failure in an essential element of his representation, he told me he
was satisfied with Mr. Murray’s representation. Mr. West’s excuse that he thought
the Gelof Plea Offer might be rescinded holds no water for me. His current change
of position is convenient and an obvious effort to manufacture a claim he believes
will now be helpful to him. Finally, the timing of the meetings Mr. West had with
Mr. Murray in relation to both plea offers supports Mr. Murray’s position.
I know Mr. Murray and hold him in high regard. His work in front of me on a
regular basis is routinely professional and effective. But these comments are not the
reason I find his testimony credible, and it does not influence my decision. The
reasons I enumerated in the previous paragraph are the basis for my decision.
Legal Analysis
After stating the well-known legal parameters of Delaware Criminal Rule 61
and the principles of the Strickland8 and Ploof 9cases, Petitioner cites specific cases
related to the assistance of counsel during pre-trial plea negotiations. The United
8
Strickland v. Washington, 466 U.S. 668, 687 (1984), which sets forth the two-prong test for
ineffective assistance of counsel claims.
9
Ploof v. State, 75 A.3d 840, 852 (Del. 2013), which adopted the Strickland test in Delaware.
8
States Supreme Court has held that "the Sixth Amendment, applicable to the
States by the terms of the Fourteenth Amendment, provides that the accused shall
have the assistance of counsel in all criminal prosecutions."10 This right is further
guaranteed under Article I § 7 of the Delaware Constitution. The United States
Supreme Court further explained that "the right to counsel is the right to effective
assistance of counsel."11
The right to counsel attaches "when the adversarial judicial proceedings
are commenced and continues throughout all 'critical stages' of the
proceedings ... "12 The Delaware Supreme Court has determined that a critical
stage includes the pretrial process.13 The United States Supreme Court has
made clear that "the negotiation of a plea bargain is a critical phase of
litigation for purposes of the Sixth Amendment right to effective assistance of
counsel."14 A defendant has an autonomous interest in deciding whether to
accept a guilty plea under the Sixth Amendment and an accused has the
ultimate authority to decide whether to plead guilty.15
10 Missouri v. Frye, 566 U.S. 132, 138 (2012).
11
Id. (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). See also Urquhart v. State,
203 A.3d 719, 728 (Del. 2019) (citing McMann v. Richardson, 397 U.S. 759, 771 (1970)).
12
Norman v. State, 976 A.2d 843, 857-58 (Del. 2009).
13
Urquhart, 203 A.3d at 729.
14
Frye, 566 U.S. at 140 (quoting Padilla v. Kentucky, 599 U.S. 356,373 (2010)).
15
Taylor v. State, 213 A.3d 560, 567-68 (Del. 2019).
9
In 2012, the United States Supreme Court decided the companion cases
of Lafler v. Cooper16 and Missouri v. Frye,17 which confirmed the right to
effective assistance of counsel during plea bargaining and deployed the
Strickland standard as the vehicle for assessing such claims.
In Lafler, the defendant wanted to accept a 61-to-85-month plea, but his
lawyer convinced him to go to trial because of his mistaken belief that if a victim
is shot below the waist, the prosecution cannot establish intent to murder under
Michigan law.18 Lafler was convicted and was sentenced under a mandatory
term of 185-360 months.
Lafler established an offshoot of Strickland prejudice for plea situations:
In these circumstances a defendant must show that but for the
ineffective advice of counsel there is a reasonable probability that
the plea offer would have been presented to the court (i.e., that
the defendant would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.19
The Supreme Court decided the correct remedy was to order the State to
16
566 U.S. 156 (2012).
17
566 U.S. 134 (2012).
18
Lafler, 566 U.S. at 161.
19
Id. at 164.
10
reoffer the plea agreement, then leave resentencing to the judge's discretion.20
In Frye, the prosecution extended two formal plea offers with a fixed
expiration date.21 Defense counsel in Frye failed to communicate the pleas,
which expired, resulting in a harsher result for the defendant.22 The Supreme
Court noted that when "defense counsel allowed the offer to expire without
advising the defendant or allowing him to consider it, defense counsel did not
render the effective assistance the Constitution requires."23 The Frye court
established that to establish prejudice, the petitioner must demonstrate a
reasonable probability that the uncommunicated plea offer would have been
accepted had the attorney not failed to communicate it.24
The Frye court explained that to show prejudice in cases where a plea
offer lapsed or was rejected due to counsel's deficient performance:
[D]efendants must demonstrate a reasonable probability they would
have accepted the earlier plea offer had they been afforded effective
assistance of counsel. Defendants must also demonstrate a
reasonable probability the plea would have been entered without the
prosecution canceling it or the trial court refusing to accept it, if
they had the authority to exercise that discretion under state law. To
establish prejudice in this instance, it is necessary to show a
reasonable probability that the end result of the criminal process
would have been more favorable by reason of a plea to a lesser
20
Id. at 174.
21
Id. at 138-39.
22 Id. at 139.
23
Id. at 145.
24
Id. at 148.
11
charge or a sentence of less prison time.25
The Supreme Court remanded the case for an evidentiary hearing to assess
the prejudice prong.26 I t also determined that any amount of additional jail
time has Sixth Amendment significance.27
In Burns v. State,28 the Delaware Supreme Court reviewed a Lafler claim.
Defendant rejected a plea with a probation recommendation and went to trial
instead. After being found guilty, he was sentenced to 35 years.29 In Burns our
Supreme Court adopted the Lafler standard for deciding ineffective assistance
claims with respect to plea negotiations.30 More on Burns later.
Our Supreme Court considered this issue again last month in Owens v.
State.31 Owens contended that trial counsel failed to communicate a plea offer at
his final case review.32 The trial court rejected Mr. Owens' postconviction claim
of ineffective assistance of counsel without the benefit of an evidentiary
hearing.33 On appeal, he argued that trial counsel's failure to communicate the
second plea offer constituted a complete denial of counsel during the critical
25
Frye, 566 U.S. at 147.
26
Id. at 151.
27
Glover v. U.S., 531 U.S. 198, 203 (2001).
28
76 A.3d 780 (Del. 2013).
29
Id. at 784.
30
Id. at 785.
31
2023 WL 4534933 (Del. July 13, 2023).
32
Id. at *3.
33
Id. at *5.
12
plea-bargaining stage.34 The Delaware Supreme Court found that this contention
failed;35 therefore, he was required to show prejudice under Strickland.36 The
Court further found that the Superior Court's crediting of trial counsel's sworn
statement and not holding an evidentiary hearing was not an abuse of
discretion.37 It held that the Superior Court's factual determination that the
defendant received and rejected every plea offer was supported by the record.38
The Supreme Court in Owens found that the defendant could not show
prejudice under Strickland.39 Nothing in the amended motion or his supporting
affidavit indicated that the defendant would have accepted a plea offer at his
final case review.40 The Supreme Court affirmed the trial court's denial of Mr.
Owen's amended motion for postconviction relief.41
Both Burns and Owens buttress my finding that Petitioner is not entitled to
Rule 61 relief. As in Burns, the record in this case demonstrates that Trial Counsel
communicated the Anderson Plea Offer to Mr. West, as well as the consequences
of accepting the Anderson Plea Offer and not accepting the Anderson Plea Offer.
I, like the Burns Court, find that Trial Counsel was not ineffective.
34
Id. at *6.
35
Id.
36
Id.
37
Id. at *7.
38
Id.
39
Id.
40
Id.
41
Id.at *10.
13
I went a step further than the trial judge in the Owens case and held an
evidentiary hearing and allowed post-hearing briefings. Yet, after all of that, I
still find, like the Burns Court, which did not have the benefit of such a hearing
or briefings, that the record supports that Mr. West received and rejected the
Anderson Plea Offer. Trial Counsel did not provide ineffective assistance.
Even assuming that Trial Counsel’s assistance was ineffective, Petitioner
cannot show prejudice under Strickland. Nothing in the record indicates to me
that Mr. West would have accepted the Anderson Plea Offer, other than with 20-20
hindsight after his pretrial motions were denied, he accepted the Gelof Plea Offer, and
I imposed a longer sentence than he anticipated.
Even if I were to grant Petitioner the relief he seeks, namely, to order the State
to re-extend the Anderson Plea Offer so that he may accept it, resentencing is in
my discretion, and there is no guarantee that I would adhere to the terms
of the Anderson Plea Offer at resentencing.
Conclusion
For the reasons discussed above, the Motion is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/ Craig A. Karsnitz
14
cc: Prothonotary
James P. Murray, Esquire, Office of Defense Services
15