State v. Smith

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE 0F DELAWARE )
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) ID No. 0304020115
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DAVID R. SMITH )
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Defendant. )
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Submitted: April 6, 2016
Decided: June 7, 2016
Upon Defendant ’s Motionfor Postconvictz``on Relief SUMMARILY DISMISSED.
Upon Conflict Counsel ’s Motion to Withdraw, GRANTED.
Upon Defendant ’s Motion to Release Court Appointed Counsel, MOOT.
f%``§§i§-F€Htice, Carve1 STate
'_11"9801
_``a T. Knoll,
David Smith, pro se, SBI No. 330599, J ames T. Vaughn C0rrecti0na1 Center, 1181 Padd0ck
Road, Smyrna, Delaware 19977
BRADY, J.
»L_-IN Q¥ z
Before the Court is a Motion for Postconviction Relief filed pursuant to Superior Court
Criminal Rule 61 ("Rule 61") by David Smith ("Defendant") on October 17, 2013.' On June 17,
2003, Defendant was indicted on one count of Rape in the Second Degree and one count of
Unlawful Sexual Contact in the Second Degree.z On September 10, 2003, Defendant pled guilty
to liape in the Third Degree and admitted a violation of probation that stemmed from a 1996
conviction for Unlawful Sexual Intercourse in the Third Degree.3 On February 6, 2004,
Defendant was sentence to a total of twenty-five years and six months at Level V, suspended §
after serving twenty years and six months, for decreasing levels of supervision.4 Defendant did
not file a direct appeal to the Delaware Supreme Court.
Shortly after Defendant filed the instant Motion for Postconviction Relief,$ counsel was
appointed to represent him ("Original Conflict Counsel").6 On May 22, 2014, Defendant filed an
amended Motion for Postconviction Relief7 and requested more time to pursue additional
information.s In this amended Motion, Original Conflict Counsel adopted the claims Defendant
made in his initial Motion and requested that Defendant be transported to the Delaware State
Hospital "for a psychological evaluation and to see if an evaluation can'reveal his state of mind
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at the time of the confession and plea.’
On March 19, 2015, Original Conflict Counsel changed his status with the Delaware Bar
to "inactive" and Defendant was appointed a new attorney ("Conflict Counsel") to represent him
' Def.’s Mot. for Postconviction Relief, State v. Smith, No. 0304020115, Docket No. 13 (Oct. 17, 2013).
2 lndictment, State v. Smilh, No. 03040201 15, Docket No. 2 (June 16, 2003).
3 Guilty plea, State v. Smith, No. 03040201 15, Docket No. 6 (Feb. 6, 2004).
4 Sentence, State v. Smith, No. 0304020115, Docket No. 7 (Feb. 6, 2004).
5 Def.’s Mot. for Postconviction Relief, State v. Smith, No. 0304020115, Docket No. 13 (Oct. 17, 2013).
° See Order, State v. Smizh, No. 0304020115, Docket No. 16 (Oct. 23, 2013).
7 Amended Mot. for Postconviction Relief, State v. Smz‘th, No. 03040201 15, Docket No. 22 (May 22, 2014).
8 Letter from Christopher Tease, Esquire, State v. Smizh, No. 03040201 15, Docket No. 23 (l\/Iay 22, 2014).
9 Def.’s Amended Mot. for Postconviction Relief, State v. Smith, No. 03040201 15, Docket No. 22 (May 22, 2014).
2
In this case, Rule 6l(i)’s procedural bar applies as Defendant failed to timely file his
Motion for Postconviction Relief.“ Defendant’s claim of actual innocence is procedurally
barred pursuant to Rule 6l(i)(3) because he failed to assert it in the proceedings leading to his
judgment of conviction and failed to file a timely, direct appeal to the Delaware Supreme
Court.éé
Finally, Defendant has failed to provide any basis, and the record is devoid of any, that
would perrnit this Court to consider whether any other exception to the procedural bars would
apply in this case.67 Accordingly, Defendant’s Motion for Postconviction Relief is
SUMMARILY DISMISSED. Having determined that Defendant’s Motion for Postconviction
Relief is procedurally barred, conflict counsel’s Motion to Withdraw is GRANTED. Because
conflict counsel’s Motion is granted, Defendant’s Motion to Release Court Appointed Counsel is
MOOT.
Although the Court need not address the merits of Defendant’s postconviction claims
because they are procedurally barred, the Court will briefly discuss Defendant’s claims of
ineffective assistance of counsel and actual innocence.
Defendant’s first claim is that his attorney was ineffective for allowing defendant to plead
guilty even though trial counsel knew Def``endant was suffering from depression and for failing to
65 Defendant failed to file a direct appeal to the Delaware Supreme Court and therefore his conviction became final
thirtMays after he was sentenced on February 6, 2004. See Super. Ct. Crim. R. 6l(m)(l) (2O l 3). Defendant filed
the instant Motion approximately nine years later, on October 17, 20l3. See Def.’s l\/lot. for Postconviction Relief,
State v. Smith, No. 0304020115, Docket No. 13 (Oct. 17, 20l3).
66 Rule 6l(i)(3) provides, "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of
conviction, as required by the rules of this court, is thererafter barred, unless the movant shows (A) cause for relief
from the procedural default and (B) Prejudice from violation of the movant’s rights." Super. Ct. Crim. R. 6l(i)(3)
(20l3). '
67 Super. Ct. Crim. R. 6l(i)(3) provides "[a]ny ground for relief that was not asserted in the proceedings leading to
the judgment of conviction, as required by the rules of this court, is thereafter barred, unless the movant shows (A)
cause for relief from the procedural default and (B) Prejudice from violation of the movant’s rights."
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attack the State’s evidence. To prevail on an ineffective assistance of counsel claim, a
petitioner must show that counsel’s performance was deficient and that the deficiency prejudiced
the defendant.69
ln the context of a guilty plea, "the voluntariness of the plea depends on whether
counsel’s advice ‘was within the range of competence demanded of attorneys in criminal
cases."’m The prejudice requirement "focuses on whether counsel’s constitutionally ineffective
performance affected the outcome of the plea process. In other words, in order to satisfy the
‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial." lt is not sufficient to "show that the errors had some conceivable effect on the outcome
of the proceeding."n
Because Defendant must prove both prongs of Stricklana’, "a court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies."n Instead, "[i]f it is easier to dispose of an
ineffectiveness claim on the grounds of lack of sufficient prejudice, . . . that course should be
failawed."‘
The record in this matter clearly refutes Defendant’s claims. Trial counsel was aware of
Defendant’s potential mental health issues and, indeed, had Defendant evaluated by a psycho-
forensic evaluator.75 Trial counsel was aware that Defendant was being treated for depression
while he was incarcerated, but learned of no mental health limitations that would affect
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68 State’s Response, State v. Smith, No. 03040201 l5, Docket No. 34, at *8 (Mar. 7, 2016).
°° szrzak/aad v. Waahzag¢an, 446 u.s, 668, 687 (1984).
’° 1a ar 56 (quaring Macana v. Rzahardsan, 397 u.s. 759, 771 (1973)).
" /1:11,474 u.s. ar 59.
" s¢riakzand, 446 U.s. ar 693.
73 /d. ar 697.
74
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75 Affidavit of Dade D. Werb, State v. Smith, No. 03040201 l5, Docket No. 32, at *4 (Jan. 21, 2016).
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Defendant’s competence to evaluate and accept a plea offer and enter a plea of guilty. The
record does not contain, and Defendant has not alleged, any circumstances that would have
alerted trial counsel that Defendant was unable to enter his plea knowingly and intelligently.
Based on the record, there is no indication that trial counsel’s performance fell below an
objective standard of reasonableness and, as a result, Defendant has failed to establish
Strickland ’s first prong.76
Defendant has further failed to establish that he was prejudiced by trial counsel’s alleged
deficiencies. The claim is conclusory.77 With the exception of claiming that he suffered from
depression, Defendant does not elaborate on how his condition affected his decision to enter a
plea of guilty, if at all. The record does not support a finding that the Defendant was suffering
from any mental health condition that influenced or affected his decision to plead guilty or what
condition defense counsel might have discovered if he had taken any additional steps. Defendant
has failed to establish prejudice, as is required by Strz'ckland 's second prong.78
To the extent that Defendant argues that his trial counsel was ineffective for failing to file
a Motion to Suppress his confession, this claim is also conclusory. Defendant has failed to
establish on what grounds, if any, his confession should have been suppressed. Trial counsel and
conflict counsel concluded there were no grounds to support bringing such a motion.79 And
again, Defendant makes no specific claims to how that may' have affected his decision to enter a
plea of guilty.
’° see srrzc/¢zand, 446 u.s. ar 687.
77 Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. See Younger, 580
A.?.d at 555.
73 see s¢rzckzand, 446 u.s. ar 687.
79 See Affidavit of Dade D. Werb, State v. Smith, No. 0304020l 15, Docket No. 32 (Jan. 2 l, 20l6); see also l\/Iot. to
Withdraw as Counsel, State v. Smith, No. 0304020115, Docket No, 33 (Feb. 15, 20l6).
13
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Defendant next argues that he is actually innocent, stating, "the absence of facts cause
inference of the truth of an underlying fact because moral obligation was not put to the test based
on defendant’s condition and other violations that cause an imbalance of justice."so While the
Court is uncertain precisely what this means, the record is replete with Defendant’s statements
that he committed the crime with which he was charged. When Defendant was taken into
custody on May l, 2003, he gave a statement to police in which he confessed to the crime to
which he pled guilty, as well as a number of other incidents. When Defendant entered his plea of
guilty the Court asked the Defendant, "Count l of the indictment, as it would be modified, reads
that on or about the lst day of October, 2002, and on or about the lst day of January, 2003, in
New Castle County, State of Delaware, you did intentionally engaged in sexual intercourse or
sexual penetration with Jessica Van Dame without her consent. Did you do that?".gl Defendant
responded "Yes."sz Defendant further admitted to the Pre-Sentence Officer during an interview,
that he had sexual contact with the victim.83 The Court finds not merit to Defendant’s actual
innocence claim.
.Y.. Conci.iisiois__
For the reasons stated above, Defendant’s Motion for Postconviction Relief is
SUMMARILY DISMISSED, conflict counsel’s Motion to Withdraw is GRANTED and
Defendant’s Motion to Release Court Appointed Counsel is MOOT. Conflict counsel has a
continuing duty, which is limited to notifying the Defendant of the Court’s ruling and advising
*° Def.’s Mot. for postconviction Relief, stare v. smnh, No. 03040201 15, Docket No. 13 (oct. iv, 2013).
8' Transcript, State v. Smith, No. 0304020115, Docket No. 20 (Sept. lO, 2003).
82 Transcript, State v. Smith, No. 0304020l l5, Docket No. 20 (Sept. lO, 2003).
83 Presentence Report, State v. Smith, No. 0304020l 15 ("lt truthfully bothers me because of the fact that if 1 knew
that this was going to happen, l would have avoided the situation all together. I had sexual contact with the victim.
Attorneys made me plead to rape third degree. My attorney told me that the State would not lessen the charge. I
really do not know why l committed the off``ense.").
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the Defendant of the right to appeal, the rules for filing a timely notice of appeal, and that it is the
Defendant’s burden to file a notice of appeal if desired.
IT IS SO ORDERED.
M. Jane
Superior
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in his Motion for Postconviction Relief.m On December 28, 2015, Defendant filed a motion to
"release court appointed counsel" arguing that despite his attempts to contact his counsel,
conflict counsel had not been in touch with the Defendant."
On January 21, 2016, trial counsel
filed an Affidavit responding to Defendant’s claims,lz and on February 15, 2016, conflict counsel
filed a Motion to Withdraw as Counsel.l3 On March 7, 20l6, the State filed a response to
Defendant’s Motion for Postconviction Reliefm and on March 28, 2016, the Defendant filed a
Response to conflict counsel’s Motion to Withdraw as Counsel.l$ On April 6, 2016, the Court
informed the parties that after reviewing the parties’ submissions the Court believed there was no
need for a hearing and took the matter under advisement. '6
On April 22, 2013, Karen Trump ("Trump") contacted the New Castle County Police
Department ("NNCPD") because her three year old daughter had disclosed that her uncle, the
Defendant, had pulled down her pants, bent her over her bed, and touched her butt. The victim
told her mother that Defendant then spread her butt apart and that it hurt her. The victim was
interviewed at the Child Advocacy Center and again stated that defendant hurt her in her
bedroom when he used his hands to pull her butt apart.
_‘° see scheduling order, sia:e v. sm}'¢h, No. 0304020115, Docket No. 30 (Jan. s, 2016).
" Def.’s Mot. to Release Court Appointed Counsel, State v. Smilh, No. 0304020115, Docket No. 28 (Dec. 28, 2015).
'2 Affidavit of Dade D. Werb, State v. Smith, No. 0304020115, Docket No. 32 (Jan. 21, 2016).
'3 Mot. to Withdraw as Counsel, State v. Smith, No. 03040201 15, Docket No. 33 (Feb. 15, 201 6).
'4 State’s Response, State v. Smith, No. 0304020115, Docket No. 34 (Mar. 7, 2016).
'5 Def,’s Response to Motion to Withdraw as Counsel, State v. Smilh, No. 03040201 15, Docket No. 35 (Mar. 28,
20l6).
16 Letter from judge Brady to Counsel, State v. Smith, No. 0304020115, Docket No. 36 (April 6, 20l6).
'7 Unless otherwise noted the following facts are taken from the parties’ submissions, the Affldavit of Probable
Cause, and the New Castle County Police Department’s Supplement Rep0rt. See Affidavit of Dade D. Werb, State
v. Smith, No. O304020l 15, Docket No. 32 (Jan. 2l, 2016); State’s Response, State v. Smith, No. 0304020l 15,
Docket No. 34 (Mar. 7, 2016); Affldavit of Probable Cause, Exhibit E to State’s Response, State v. Smith, No.
0304020l 15, Docket No. 34 (Mar. 7, 20l6); New Castle County Police Department’s Supplement Report, Exhibit F
to State’s Response, State v. Smith, No. 0304020l 15, Docket No. 34 (Mar. 7, 20l6).
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On May l, 2003, New Castle County Detective Connie Jackson ("Detective Jackson")
took Defendant into custody and read him Mz``randa warnings. Defendant waived his rights and
agreed to speak to Detective Jackson. Defendant admitted that he had pulled the victim’s pants
down and pulled her butt apart. Defendant further discussed several other incidents including
occasions where he was molested as a child, incidents when he was a child and engaged in
sexual acts with other children, and other occasions when he was either a teenager or an adult
and had molested several other children.
At the time of the incident, Defendant was a registered sex offender and on probation
from a 1996 conviction for Unlawful Sexual lntercourse in the Third Degree. As a result,
Probation and Parole filed a Violation of Probation report alleging that Defendant had violated
the terms and conditions of his probation by committing a new sexual offense against a child and
for having contact with a child under the age of eighteen.
0ti011 for Postconviction Relief__
__ _ - . _,__. ___ _ c
A. Defendant’s
Defendant argues that his trial counsel was ineffective for failing to attack the evidence in
his case and for allowing Defendant to plead guilty knowing that his plea was involuntarily
offered because Defendant suffered from untreated depression.lg Defendant contends that he has
"pointed in the record to demonstrate a lack of diligence on behalf of his counsel. Counsel’s
actions led to an unjust result depriving defendant of a meaningful opportunity to present a
complete defense."w Defendant further argues that trial counsel should have challenged the
0
admissibility of his confession.z Defendant also contends that he is actually innocent.z'
18 Def.’s Mot. for Postconviction Relief, Szate v. Smith, No. 0304020115, Docket No. 13 (Oct. l7, 2013).
'9 Def.’s Mot. for Postconviction Relief, Stale v. Smith, No. 03040201 15, Docket No. 13 (Oct. l7, 2013).
2° Def.’s Mot. for Postconviction Renef, stare v. smi¢h, No. 0304020115, Docket No. 13 (o¢r. 17, 2013).
2' Def.’s Mot. for Postconviction Relief, State v. Smith, No. 0304020115, Docket No. 13 (Oct. l7, 2013).
4
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Specifically, Defendant states, "the absence of facts cause inference of the truth of an underlying
fact because moral obligation was not put to the test based on defendant’s condition and other
violations that cause an imbalance of justice."zz
.
Trial counsel advised that he was aware of Defendant’s depression and had Defendant
evaluated by Ernest J. DiStefano ("DiStefano"), a psycho-forensic evaluator, prior to entering his
plea of guilt.” Trial counsel contends that correspondence between him and DiStefano, and
"likely" DiStefano’s report, indicates that the Defendant was not so emotionally disturbed that
his thinking was affected or that he should have been referred to the Delaware State Hospital for
treatment.24 Trial counsel notes that he went over the Truth in Sentencing Guilty Plea Form in
detail with the Defendant and that Defendant represented that he had never been a patient in a
mental hospital, was voluntarily entering the plea, was not forced into entering the plea, and was
satisfied with counsel’s representation.25 Trial counsel further notes that a pre-sentence report
was created in which Defendant stated that he recently sought out mental health services for
depression but that his depression stemmed from being incarcerated.%
Trial counsel argues that he was not ineffective for failing to evaluate Defendant’s mental
health and in making a determination that Defendant was entering his plea knowingly,
7
intelligently, and voluntarily.z Specifically, trial counsel notes that he met with Defendant,
discussed his case and the evidence against him, had Defendant evaluated for mental health
issues, explored treatment options for Defendant’s sexual disorder, and negotiated a plea
5 _ ‘_ -‘-'
” bef.’s Mor. for postconviction Relief, srore v. smr'rh, No. 0304020115, booker No. 13 (oor. 17, 2013;,
23 Affrdovir of bode b. Werb, sroro v. smr‘rh, No. 03040201 15, booker No. 32, or *2-3 (Jon. 21, 2016).
24 Afr"rdovir of bode b. Werb, sroro v. smr'r/r, No, 0304020115, booker No. 32, or *2-3 (Jorr. 21 , 2016).
25 Afndovir of bode b. Werb, sroro v. smr'rh, No. 0304020115, booker No. 32, or *3 (Jorr. 21, 2016).
2° Afr“rdovir of bode b. Werb, srore v. smirh, No. 0304020115, booker No. 32, or *3 (Jon. 21, 2016).
27 Aftidavit of Dade D. Werb, State v. Smith, No. 03040201 l5, Docket No. 32, at *4 (Jan. 21, 2016).
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agreement to a reduced charge.z Trial counsel further notes that at no time during the
proceedings did he detect that Defendant was so mentally incapacitated that he could not enter a
guilty plea and that DiStefano also did not detect any such limitations.zg
Trial counsel argues that Defendant’s claim of actual innocence is without merit and that
he was not ineffective for failing to diligently represent the Defendant.w Trial counsel notes that
Defendant did not deny committing the alleged offenses, but rather, gave a lengthy and detailed
statement to police in which he admitted he committed the offenses for which he was charged.3 l
Trial counsel further notes that Defendant admitted to the Pre-Sentence officer that he had sexual
contact with the victim.32 Trial counsel argues that due to the fact that Defendant was already on
probation for a sex crime and the State had a strong case against the Defendant, the strategy was
to obtain the most favorable resolution of the case without going to trial.” Trial counsel argues
that this was sought by entering a plea to a reduced charge with a subsequent argument at
sentencing "that [Defendant] cooperated with the police in their investigation, accepted early
responsibility for the crime, would not further harm the victim by requiring her presence at trial,
requested help for his sexual disorder and was employed prior to his incarceration."34
_,C. Coni]ic Qounsel’s_Motio to__Withdraw::
Conflict counsel, after thoroughly reviewing the record and Defendant’s grounds for
relief, indicated that he was unable to ethically advocate on behalf of the Defendant.” Conflict
counsel notes that before entering the plea Defendant had a psycho-forensic evaluation done by
DiStefano and that both trial counsel and DiStefano noted that they saw no indication of mental
,,_; _
23 Afndevir of Dade D. werb, srere v. smr'rh, No. 03040201 15, meeker No. 32, er *4 (Jem. 21, 2016).
2" Afndevir ofDade D. werb, srere v. smr'rh, No. 0304020115, Deeker No. 32, er *4 (Jan. 21, 2016).
3° Ar"frdavir efDede D. werb, srere v. smirh, No. 0304020115, meeker No. 32, err *5 (Jen. 21, 2016).
3' Affldavit ofDade D. Werb, State v. Smith, No. 03040201 l5, Docket No. 32, at *5 (Jan. 2l, 20l6).
32 Afr'rdevir of Dede D. werb, srere v. smr‘rh, No. 0304020115, becker No. 32, er *5 (Jan. 21, 2016).
33 Afr‘rdevir of Dede D. werb, srere v. smr'rh, No. 0304020115, meeker No. 32, er *5 (Jen. 21, 2016).
34 Amdervir of Dade D. werb, srere v. smr'r/r, No. 0304020115, Doeker No. 32, ar *5-6 (Jan. 21, 2016)§
35 see Mor. re wirhdrew as cermsel, srere v. smr'rh, No. 03040201 15, Deeker No. 33 (Feb. 15, 2016).
6
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health limitations in Defendant’s psychological makeup.% Conflict counsel therefore could find
no merit to Defendant’s argument that "counsel’s representation fell below an objective standard
of reasonableness because Defendant could not be in sound mind based on mental health history
>37
including depression.’ Conflict counsel further found no merit to Defendant’s actual
innocence claim in which Defendant argued that his trial counsel did not diligently represent
him.38
Specifically, conflict counsel, after providing a summary of the evidence against the
Defendant, argued that "[t]rial counsel effectively evaluated the evidence against [Defendant]
and negotiated a guilty plea to a reduced charge. [Defendant’s] guilty plea was made knowingly
and intelligently and voluntarily. His sentence although harsh, was legal and was within the
statutory limits with regards to the charge to which [Defendant] pled guilty."39
Conflict counsel found no merit in Defendant’s amended motion. Specifically, conflict
counsel argues that the motion was vague with regard to the allegation that Defendant’s mental
health issues prevented him from entering into the plea knowingly, intelligently, and
40 Conflict counsel further argues that Defendant’s request for a psychological
voluntarily.
evaluation approximately eleven years after Def``endant entered his plea would not be relevant to
determine whether the plea was entered into knowingly, intelligently, and voluntarily.‘"
The State argues that Defendant’s motion is time barred because his conviction became
final on February 6, 2004, and he did not file the instant Motion for Postconviction Relief until
October of 2013.42 The State further argues that Defendant’s claim of actual innocence is
~‘° Mot. to withdraw as Counsel, state v. stttith, No. 0304020115, Dooi2015 WL 4717524, at *l (Del. Aug. 6, 2015).
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it is procedurally barred. That Rule provides that a motion is procedurally barred if the motion is
untimely, repetitive, a procedural default exists, or the claim has been formerly adjudicated.”
Rule 6l(i)(l) provides that a motion for postconviction relief is time barred when it is filed more
than one year after the conviction has become final or one year after a retroactively applied right
has been newly recognized by the United States Supreme Court or by the Delaware Supreme
Court.éo Rule 6l(i)(2) provides that a motion is waived if the defendant has already filed a
Motion for Postconviction Relief and a_claim is repetitive if the defendant has failed to raise it
during a prior postconviction proceeding, unless "consideration of the claim is warranted in the
361
interest of justice.’ Rule 6l(i)(3) bars consideration of any claim "not asserted in the
proceedings leading to the conviction" unless the petitioner can show "cause for relief from the
procedural default" and "prejudice form violation of the movant’s rights."éz Rule 6l(i)(4)
provides that any claim that has been adjudicated "in the proceedings leading to the judgment of
conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus
proceedings" is barred "unless reconsideration of the claim is warranted in the interest of
justice."63
Rule 6l(i)(5) provides that the procedural bars can be overcome if Defendant makes out a
"colorable claim that there was a miscarriage of justice because of a constitutional violation that
undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading
to the judgment of conviction."64
5" see super. cr. crim. R. 61@)(1)-(4) (2013).
°° super. cr, crim R. 61(0(1) (2013).
°’ super. cr. crim. R. 61(1)(2)(2013).
°2 super. cr. crim. R. 61@)(3) (2013).
63 super. cr. crim. R. 61(i)(4) (2013).
64 [d
10