Whittle v. State

IN THE SUPREME COURT OF THE STATE OF DELAWARE
DAVEAR WHITTLE, §
§
Defendant Below, § No. 405 , 2015
Appellant, §
§ Court Below_Superior Court
V. § of the State of Delaware,
§
STATE OF DELAWARE, § Cr. ID No. lll10l324
§
Plaintiff Below, §
Appellee. §
Submitted: February_23, 2016
Decided: April 28, 2016
Before STRINE, Chief Justice; HOLLAND, and VALIHURA, Justices.
0 R D E R
This 28th day of April 2016, upon consideration of the appellant’s opening
brief, the appellee’s motion to aff1rm, and the record below, it appears to the Court
that:
(l) The appellant, DaVear Whittle, filed this appeal from the Superior
Court’s denial of his first motion for postconviction relief under Superior Court
Crirninal Rule 61 ("Rule 6l"). The State of Delaware has filed a motion to affirm
the judgment below on the ground that it is manifest on the face of Whittle’s opening
brief that his appeal is without merit. We agree and affirm.
(2) ln 2012, a Superior Court jury found Whittle guilty of Murdei' in the
Second Degree and related crimes. Whittle was sentenced to forty-nine years of
Level V incarceration, suspended after forty-four years for decreasing levels of
supervision. On appeal, this Court reversed the judgment of the Superior Court and
remanded for a new trial.l
(3) On November 7, 2014, Whittle pled guilty to Manslaughter, as a lesser
included offense of Murder in the Second Degree and Possession of a Firearm
During the Commission of a Felony ("PFDCF"). As part of the plea agreement, the
State agreed to enter a nolle prosequi on the remaining charges and to recommend
that Whittle be sentenced: (i) for Manslaughter, twenty-five years of Level V
incarceration, suspended after four years for decreasing levels of supervision; and
(ii) for PFDCF, five years of Level V incarceration (the minimum mandatory). The
Superior Court sentenced Whittle, effective September 11, 201l, as follows: (i) for
Manslaughter, twenty-five years of Level V incarceration, suspended after twenty
years for decreasing levels of supervision; and (ii) for PFDCF, five years of Level V
incarceration. Whittle did not file a direct appeal.
(4) On May 29, 20 l 5, Whittle filed a motion for postconviction relief under
Rule 61 and a letter requesting appointment of counsel. In his motion for
postconviction relief, Whittle asserted the following claims: (i) ineffective assistance
of counsel based upon his failure to investigate the case before the plea agreement,
1 Whittle v. State, 77 A.3d 239, 248 (Del. 2013) (holding prosecutor’s improper vouching during
closing argument deprived Whittle of his right to a fair trial).
2
failure to inform Whittle fully of the plea conditions, and failure to provide evidence
of his innocence at sentencing; (ii) conflict of interest because the Superior Court
judge who presided over his case on remand was previously Chief Deputy Attorney
General; and (iv) excessive sentencing because his sentence for Manslaughter was
greater than the Delaware Sentencing Accountability Commission ("SENTAC")
guidelines.
(5) In an order dated July 8, 2015, the Superior Court denied Whittle’s
motion for postconviction relief and request for appointment of counsel. As to his
request for motion appointment of counsel, the Superior Court concluded that
Whittle had not shown he was entitled to counsel under Rule 61(e)(2) because,
among other things, he had not set forth a substantial claim of ineffective assistance
of counsel in relation to his guilty plea. As to his motion for postconviction relief,
the Superior Court concluded that: (i) the ineffective assistance of counsel claim was
meritless because counsel acted reasonably in connection with sentencing; (ii) the
conflict of interest claim was meritless because records were checked to confirm that
the Superior Court judge had no familiarity with Whittle’s case from his time at the
Department of Justice; and (iii) the excessive sentencing claim was meritless
because the Superior Court was not bound by the State’s recommendation and
Whittle acknowledged in his Truth-in-Sentencing Guilty Plea Form that the
maximum penalty for his crimes was fifty years of Level V incarceration.
(6) On July lO, 2015, Whittle filed a motion for recusal and for an
evidentiary hearing on the grounds that the Superior Court judge served as the Chief
Deputy Attomey General at the time of his trial. Whittle also sought an evidentiary
hearing to establish breaches of the plea agreement. Whittle filed another motion
for appointment of counsel. On July 20, 2015, Whittle filed an untimely motion for
reargument amending his claims for postconviction relief and asserting new claims.z
On July 31, 2015, Whittle filed a notice of appeal of the Superior Court’s July 8,
2015 order denying his motion for postconviction relief and his request for
appointment of counsel.
(7) In a letter dated September 30, 2015, the Superior Court informed
Whittle that, in light of this appeal, it lacked jurisdiction to consider Whittle’s
motions. On October 9, 2015, Whittle filed a motion for stay of the proceedings so
the Superior Court could consider all of the motions he had filed since the denial of
his motion for postconviction relief. On October l5, 2015, the Superior Court denied
the stay, informing Whittle that this Court had jurisdiction over the matter and
Whittle would need to seek a stay in this Court. Whittle has not done so.
2 A motion for reargument must be filed within five days after the filing of the court’s decision.
Super. Ct. Crim. R. 57(d) (“ln all cases not provided for by rule or administrative order, the court
shall regulate its practice in accordance with the applicable Superior Court civil rule or in any
lawful marmer not inconsistent with these rules or the rules of the Supreme Court."); Super. Ct.
Civ. R. 5 9(e) ("A motion for reargument shall be served and filed within 5 days after the filing of
the Court’s opinion or decision.").
4
(8) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de n0v0.3 The procedural requirements of
Rule 61 must be considered before any substantive issues are addressed." Whittle’s
claims on appeal may be summarized as follows: (i) the Superior Court judge should
have been disqualified because he was Chief Deputy Attomey General less than one
year before he was assigned to preside over Whittle’s case as a judge; (ii) the
Superior Court erred when it denied Whittle’s motion for postconviction relief and
when it did not fmd that his guilty plea was unknowing and involuntary; (iii) the
Superior Court erred when it denied Whittle’s request for appointment of counsel;
and (iii) the Superior Court erred when it denied Whittle’s motion to stay. Whittle
does not argue that his sentence was excessive because it exceeded the SENTAC
guidelines and has therefore waived that claim.5
(9) Rule 61(i)(3) bars relief for a claim that was not asserted in the
proceedings leading to the judgment of conviction, unless the movant shows cause
for relief from the procedural default and prejudice from violation of the movant’s
rights. No motion to disqualify the Superior Court judge was filed in the proceedings
leading to Whittle’s conviction. Whittle claims that the Superior Court judge and
3 Dawson v. State, 673 A.2d 1l86, 1190 (Del. 1996).
4 Younger v. State, 580 A.2d 552, 554 (Del. 1990).
5 Supr. Ct. R. l4(b)(vi)(A)(3) ("The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal.");
Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (holding issue that was not raised in opening
brief was waived).
State failed to inform him that the Superior Court judge’s employment as Chief
Deputy Attorney eleven months before the case was assigned to him disqualified
him from presiding over Whittle’s case, but the record reflects that the Superior
Court judge discussed the matter with Whittle’s counsel and the State. During that
discussion, the Superior Court judge stated that he had no recollection of the case
from his time as Chief Deputy Prosecutor and the prosecutor stated that a search of
the Department of J ustice records did not reflect any communications with him about
the case, Whittle has not shown cause for the procedural default or a basis to
overcome the procedural bar of Rule 6l(i)(3).6
(10) The procedural bars of Rule 61 do not apply to Whittle’s claims of
ineffective assistance of counsel. To prevail on his ineffective assistance of counsel
claims, Whittle must establish that: (i) his counsel’s representation fell below an
objective standard of reasonableness; and (ii) but for counsel’ s unprofessional errors,
there is a reasonable probability that the outcome of the proceedings would have
been different.7 Whittle’s conclusory and unsupported claims that his counsel failed
to investigate his case or inform him of (unspecified) conditions of the plea
6 Super. Ct. Crim. R. 6l(i)(5) (providing that Rule 6l(i)(3) does not apply to a claim that the court
lacked jun`sdiction, a claim that new evidence exists creating a strong inference that the movant is
actually innocent of the acts underlying the charges, or a claim that a new rule of constitutional
law applies retroactively to the movant’s case and renders the conviction invalid).
7 Slrickland v. Washington, 466 U.S. 668, 687-88 (Del. 1984).
6
agreement were insufficient to establish ineffective assistance of counsel.s As to
Whittle’s claim that his counsel failed to provide evidence of his innocence at
sentencing, the Superior Court did not err in concluding that Whittle’s counsel acted
reasonably in light of Whittle’s guilty plea.
(l l) Whittle’s claim that his guilty plea was not knowing and voluntary is
contrary to the Truth-in-Sentencing Guilty Plea Form and plea colloquy. ln the
Truth-in-Sentencing Guilty Plea Forrn, Whittle indicated that he freely and
voluntarily pled guilty, he was not promised anything that was not stated in his plea
agreement, he understood he was waiving certain constitutional rights, no one
promised him what his sentence would be, and he was satisfied with his counsel’s
representation. The Truth-in-Sentencing Guilty Plea Forrn further reflected that the
maximum sentence for Whittle’s crimes was fifty years of Level V incarceration.
During the guilty plea colloquy, Whittle affirmed that he wanted to plead guilty to
Manslaughter and PFDCF, he freely and voluntarily pled guilty, he understood that
he was waiving certain constitutional rights, and he understood the maximum
sentence was fifty years.
(12) As to Whittle’s contention that plea agreement provided for immediate,
rather than deferred, sentencing at the time he signed it, the plea colloquy reflects
8 See, e.g., Dawson v. State, 673 A.2d 1186, 1196 (Del. 1996) (concluding that conclusory and
unsupported assertions of ineffective assistance failed to establish that defense counsel acted
unreasonably or that defendant was prejudiced).
7
that neither Whittle nor his counsel objected to deferred sentencing. ln fact,
Whittle’s counsel stated that the defense was working on a mitigation report to
present to the Superior Court. In the absence of clear and convincing evidence to
the contrary, which Whittle has not provided, Whittle is bound by his statements in
the Truth-in-Sentencing Gui1ty Plea For1n and during the plea colloquy.9 To the
extent Whittle attempts to incorporate by reference additional arguments he made in
his Superior Court filings, those arguments have been waived.l°
(13) Contrary to Whittle’s contenti0ns, the Superior Court did not err in
denying his motion for appointment of counsel. Under Rule 61(e)(2), the Superior
Court may only appoint counsel for the first timely postconviction motion of a
defendant who pled guilty if the Superior Court deterrnines: (i) the conviction has
been affirmed by final order upon direct appellate review or direct appellate review
is unavailable; (ii) the motion sets forth a substantial claim that the movant received
ineffective assistance of counsel in relation to the guilty plea; (iii) granting the
motion would result in vacatur of the judgment of conviction for which the movant
is in custody; and (iv) there are specific exceptional circumstances.
9 Somervz'lle v. State, 703 A.2d 629, 632 (Del. 2008).
10 Supr. Ct. R. 14(b)(vi)(A)(3) ("The merits of any argument that is not raised in the body of the
opening brief shall be deemed waived and will not be considered by the Court on appeal."); Ploof
v. State, 75 A.3d 840, 866 (Del. 2013) (holding defendant waived issues that were incorporated by
reference to Superior Court briefmg).
(14) As Whittle points out, direct appellate review of his ineffective
assistance of counsel claims was unavailable. The Superior Court did not err,
however, in concluding that the first motion for postconviction relief did not set forth
a substantial claim of ineffective assistance or extraordinary circumstances
warranting appointment of counsel. Whittle claims that space lirnitations prevented
him from setting forth a substantial claim of ineffective assistance or extraordinary
circumstances in his motion for postconviction relief, but ignores that the
instructions attached to his motion provide that a movant may write on the back of
the page if more space is needed and may submit a legal memorandum.
(15) Finally, Whittle contends that the Superior Court erred in denying his
motion to stay for lack of jurisdicti0n. Supreme Court Rule 32(a) provides that a
motion to stay pending appeal must be filed first in the trial court, the trial court
retains jurisdiction over the motion, and the trial court must rule on the motion
regardless of whether an appeal is pending. In considering whether to grant a stay,
a court must: (i) make a preliminary assessment of the movant’s likelihood of
success on appeal; (ii) assess whether the movant will suffer irreparable harm if the
stay is not granted; (iii) assess whether any other interested party will suffer
substantial harm if the stay is granted; and (iv) consider whether the public interest
will be harmed if the stay is not granted.“ We review the denial of a stay for an
abuse of distraction.lz
(16) Although Whittle is correct that the Superior Court possessed
jurisdiction over the motion to stay, he has not shown that the Superior Court erred
in denying the motion to stay. Whittle never filed a motion to stay in this Court.
Whittle was not actually seeking a stay of the Superior Court’s order denying his
motion for postconviction relief pending the outcome of this appeal, but rather a do-
over of that motion with additional claims that he could have included, but did not
include, in the original motion. Whittle has not shown that the Kirpat factors
weighed in favor of granting a stay. Under these circumstances, the Superior Court
did not err in denying Whittle’s motion to stay.
NOW, THEREFORE, IT IS ORDERED that motion to affirm is GRANTED
and the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
/s/ Randy J. Hollana’
Justice
11 Kirpat, Inc. v. Delaware Alcoholz`c Beverage Control C0mm ’n, 741 A.?.d 356, 357 (Del. 1998).
12 Homestore, Inc. v. Tafeen, 886 A.2d 502, 504 (Del. 2005).
10