State v. Sewell

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
July 12, 2018
Patrick J. Collins, Esq. Adam D. Gelof, Esq.
Collins & Associates Department of Justice
716 N. Tatnall Street 114 East Market Street
Wilmington, DE 19801 Georgetown, DE 19947
RE: State v. Derrick Sewell
ID No: 1305008035
Dear Counsel:
This is my decision on Defendant Derrick Sewell’s timely-filed Amended
Motion for Postconviction Relief. Sewell was convicted of Assault in the First
Degree, two counts of Possession of a Firearm During the Commission of a Felony,
Aggravated Menacing, Possession of a Firearm By a Person Prohibited, Receiving a
Stolen Firearm, and Offensive Touching.
The convictions arose out of a shooting in West Rehoboth that occurred during
an outdoor party on May 10, 2013. Sewell was in a car with two friends, Precious
Tiggs and Raheem Conquest. They arrived at the party and confronted Howard
Whaley and Marvin Burton. A fight ensued, at which time Tiggs passed Sewell a
handgun which he used to shoot Whaley. Tiggs and Conquest reached plea
agreements with the State and testified against Sewell. The State filed, and I granted,
a motion to declare Sewell an habitual offender on certain offenses. I sentenced
Sewell to 86 years and 30 days at Supervision Level 5, suspended after serving 81
years at Supervision Level 5 for probation. I had to sentence Sewell to an
unsuspendible 81 years at Supervision Level 5 because he was an habitual offender.
Sewell alleges that his trial counsel did not properly communicate to him the
State’s plea offers. More specifically, Sewell alleges that Trial Counsel did not (1)
advise him of the sentencing consequences of being an habitual offender, and (2)
communicate to him the State’s last plea offer made during the trial. Trial Counsel
filed an affidavit in response to Sewell’s allegations. The State elected not to do so.
I have concluded that Sewell’s allegations are correct and have granted his Amended
Motion for Postconviction Relief.1
The Plea Offers
The State sent, among other discovery, Sewell’s criminal history to Trial
Counsel on July 29, 2013. Thus, Trial Counsel should have known that Sewell was
at risk of habitual sentencing if convicted.
1
Sewell made a number of other arguments in his original pro-se motion for
postconviction relief. Sewell’s appointed postconviction counsel did not pursue any of them. I
have rejected them as being conclusory.
2
1. The First Plea Offer – October 22, 2013
The State offered Sewell a plea to Assault in the First Degree, Possession of
a Firearm During Commission of a Felony, Possession of a Deadly Weapon by a
Person Prohibited, and Conspiracy in the Second Degree. The total sentencing range
was seven to 60 years with no State recommendation and a presentence investigation.
2. The Second Plea Offer – December 11, 2013
This was the same as the first plea offer.
3. The Third Plea Offer (The First Final Case Review) – February 7, 2014
The general outline of the plea was the same except that the State made a
recommendation of seven years at Supervision Level 5 with no presentence
investigation. This offer also included a probation recommendation for Sewell’s
pending violation of probation. It was, as pleas sometimes go, a much better plea
offer than the first two plea offers because the State had made a sentencing
recommendation which was the same as the mandatory sentence that Sewell faced
under the plea. Trial Counsel told the Court that Sewell had rejected the plea and that
he faced a sentence of 30 to 110 years and was rejecting seven to 60 years. Trial
Counsel was wrong because Sewell faced a mandatory 81 years, not 30 years.
4. The Fourth Plea Offer (The Second Final Case Review) – March 19, 2014
The trial was continued because one of the State’s witnesses was unavailable.
3
There is no written plea offer in the file. Trial Counsel stated that the “plea offer was
seven to fifty with a PSI for seven or mandatory.” I took this to be the same as the
Third Plea Offer. This was the first proceeding where habitual sentencing was
mentioned. The full colloquy is as follows:
TRIAL COUNSEL: Good morning, Your Honor.
THE COURT: Good morning.
TRIAL COUNSEL: I’ve gone over the last plea offer from Mr.
Gelof to Mr. Sewell. Mr. Sewell rejects it. We’re ready for trial.
The plea offer was seven to fifty with a PSI for seven or
mandatory. If he is not treated as a habitual, it is eight to ninety-one.
His previous felony convictions have been conspiracy second and two
counts of failure to stop at the signal of a police officer, which is a
traffic crime.
Mr. Gelof and I slightly disagree on whether or not a traffic-style
offense can make someone habitual. I thought there was an exclusion
for that. I couldn’t find it with a quick look up in the code today; but
when the motion is filed, I will vigorously defend it.
I’ve not seen - -
THE COURT: Basically, you are saying the top end without habitual is
basically life?
TRIAL COUNSEL: The top end without habitual is 91.
THE COURT: Right.
TRIAL COUNSEL: But if he’s found habitual, then it starts at 91.
4
THE COURT: All right. Okay. Is it your desire to go to trial?
THE DEFENDANT: (Nodding in the affirmative.)
THE COURT: The trial date will be – what day next week?
TRIAL COUNSEL: July 31 – I am sorry, not July 31st . March 31st , Your
Honor. It starts the following Monday, the fifth week of the month.
THE COURT: All right. We do not plea negotiate on that day. If it is
resolved with a plea, it has to be resolved before then.
Do you understand all of that?
THE DEFENDANT: Yes.
THE COURT: It is your decision to go to trial?
THE DEFENDANT: Yes.
THE COURT: All right. Thank you.
TRIAL COUNSEL: Thank you, Your Honor.2
5. The Fifth Plea Offer – Mid-Trial
The Prosecutor stated at sentencing that during the trial he gave a draft habitual
offender motion and a copy of the recently released Wickkiser3 case to Trial Counsel
and extended the last plea offer to Trial Counsel again. Trial Counsel acknowledges
that the Prosecutor gave him the Wickkiser case on the fourth day of trial, but denies
2
State of Delaware v. Derrick Sewell, Crim. Act. Nos. 13-06-0542 through 0551, at 24
(Del. Super. Ct. Mar. 19, 2014) (Transcript).
3
Wickkiser v. State, 89 A.3d 478, 2014 WL 1258306 (Del. 2014) (Table).
5
that the Prosecutor extended the last plea offer again during the trial. The Delaware
Supreme Court issued Wickkiser on March 25, 2014. Sewell’s trial began on March
31, 2014. I, based on my comments at sentencing, received a copy of Wickkiser from
one of the lawyers during the trial. Wickkiser made it clear that Sewell’s two
convictions for Failing to Stop at the Command of a Police Officer qualified as
predicate offenses for habitual sentencing.4
INEFFECTIVE ASSISTANCE OF COUNSEL
Constitutional ineffective assistance of counsel claims are generally evaluated
under the two-pronged test set forth in Strickland v. Washington.5 To establish a
claim, a petitioner must show: (a) counsel’s deficient performance, i.e., that his
attorney’s performance fell below “an objective standard of reasonableness,”6 and (b)
prejudice, i.e., that confidence in the result of the original proceeding is undermined
due to counsel’s deficiencies.7 To establish prejudice, the defendant must show that
“there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different. A reasonable probability is a
4
Id. at *1.
5
Strickland v. Washington, 466 U.S. 668 (1984); see also Williams v. Taylor, 529 U.S.
362 (2000); Wiggins v. Smith, 539 U.S. 5120 (2003); Rompilla v. Beard, 545 U.S. 374 (2005).
6
Strickland, 466 U.S. at 688.
7
Id. at 694.
6
probability sufficient to undermine confidence in the outcome.”8 This standard has
been termed as one that is lower than “more likely than not.”9 Moreover, [t]he
benchmark for judging any claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.”10
PLEA NEGOTIATIONS
Defense counsel has the duty to communicate plea offers to a client.11 Defense
counsel also has the duty to provide to a client reasonable and legally correct advice
regarding the consequences of accepting or rejecting a plea.12
PREJUDICE
Where defense counsel has failed to comply with his duties to a client
regarding plea negotiations, 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
8
Strickland, 466 U.S. at 694.
9
Neal v. State, 80 A.3d 935, 942 (Del. 2013).
10
Cooke v. State, 977 A.2d 803, 840 (Del. 2009) (quoting Strickland, 466 U.S. at 686)
11
Missouri v. Frye, 566 U.S. 134, 145 (2012).
12
Lafler v. Cooper, 566 U.S. 156 (2012).
7
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.13
Habitual Offender Advice
I have concluded that Trial Counsel was ineffective because he did not advise
Sewell that he faced habitual offender sentencing. Sewell and Trial Counsel disagree
about this. Sewell faced habitual offender sentencing as soon as he was indicted.
The record makes it clear that Trial Counsel did not accept that Sewell faced habitual
offender sentencing. Thus, regardless of the fact that Trial Counsel and Sewell
disagree about this, Trial Counsel could not have advised Sewell properly.
On February 7, 2014, at Sewell’s First Final Case Review, Trial Counsel, when
stating that Sewell had rejected the plea, stated that Sewell faced 30 to 110 years and
that he was turning down seven to 60 years. Trial Counsel was wrong. Sewell did
not face a minimum of 30 years. Sewell faced what turned out to be a minimum of
81 years.
On March 19, 2014 at Sewell’s Second Final Case Review, Trial Counsel,
while stating that if Sewell was convicted of all charges and was found to be habitual
his sentence started at 91 years, said that he disagreed with the Prosecutor that two
13
Id. at 164.
8
of Sewell’s predicate felonies, both felony Failing to Stop at the Command of a Police
Officer convictions, qualified as predicate offenses. Trial Counsel was wrong again.
During the trial, the Prosecutor gave Trial Counsel the Wickkiser decision,
which should have put to rest any possible confusion on Trial Counsel’s part about
the issue. Notwithstanding that, at sentencing, Trial Counsel still expressed doubts
about both whether (1) Sewell faced habitual sentencing, and (2) the Supreme Court
made the correct decision in Wickkiser, stating:
“So the General Assembly made it a felony offense, but I believe
there was testimony that I don’t think was considered by the Supreme
Court previously, that is the Legislative history, that Title 21 offenses
did not serve as the basis for habitual offender.”
Trial Counsel added that he would not pursue the argument at sentencing, but
would instead pursue it on appeal. Trial Counsel pursued it on appeal and lost. The
Supreme Court disposed of Trial Counsel’s argument in one short paragraph. The
following is the applicable quote from the Supreme Court’s decision:
First, Sewell claims that it was error to declare him an [H]abitual
Offender under 11 Del. C. §4214(a) because the previous offenses were
Title 21 felonies. This Court held in Wickkiser v. State,14 that “Section
4214(a) does not exclude Title 21 felonies as qualifying felonies.”15 The
trial court acted properly when it found Sewell was an habitual offender.
14
Wickkiser, 2014 WL 1258306, at *1.
15
Id.
9
Thus, Sewell’s first claim has no merit.16
Trial Counsel added another curious statement at sentencing, stating:
THE COURT: All right. How about the habitual offender
motion?
TRIAL COUNSEL: Habitual offender motion, Mr. Gelof
provided me a draft during trial and filed one with the Court this week.
The problem that I see is when we came to final case review, I had no
information there would be a habitual offender motion being filed, and
so what I told Mr. Sewell was based on the maximum of those sentences
as a non-habitual offender.17
That is what Trial Counsel said he told Sewell. Of course, at Sewell’s Second
Final Case Review he said that if Sewell was found to be habitual his sentence started
at 91 years. I wonder what Trial Counsel actually told Sewell. He obviously told the
Court one thing and Sewell something else. In any event, there is no doubt that Trial
Counsel seriously doubted whether Sewell faced habitual sentencing from the
beginning of the case all the way to the Supreme Court appeal. As such, any advice
that Trial Counsel gave Sewell about habitual sentencing is deficient because Trial
Counsel was simply wrong from start to finish.
16
Sewell v. State, 128 A3d 994, at **2 (Del. 2015)(Table).
17
State of Delaware v. Derrick Sewell, Crim. Act. Nos. 13-06-0542 through 0551, at 2-3
(Del. Super. Ct. May 23, 2014)(Transcript).
10
The Trial Plea Offer
I have concluded that Trial Counsel was ineffective because he did not present
the Fifth Plea Offer to Sewell during the trial. Sewell alleges that Trial Counsel did
not tell him about it. The Prosecutor and Trial Counsel have differing recollections
about whether the State extended one final plea offer to Sewell during the trial. The
Prosecutor says he did. Trial Counsel, at sentencing, said he did not. Trial Counsel,
in his affidavit, said that on the third day of trial the Prosecutor handed him the
Wickkiser case and that “no additional or revised plea offer was made by the State at
that time to my recollection.” Thus, the Prosecutor remains adamant that he did and
that Trial Counsel’s recollection is that the Prosecutor did not.
At sentencing, after Trial Counsel stated that he went to the final case review
not expecting the State to pursue habitual sentencing, Trial Counsel and the
Prosecutor engaged in the following exchange:
MR. GELOF: Your Honor, can I just put something on the
record, because I don’t think it was factually accurate?
There may have been a time I maintained early on, well before
final case review, that I thought he was a habitual offender and filed the
draft. In addition, while Mr. Brady – I don’t know the timing of it, but
at the point that I supplied that case, I left the prior plea offer open and
said, you understand this applies, provided we win the case.
So he had an opportunity to take the prior plea offer after the case
and after the State filed the draft motion. To put it on the record that
11
that was not explained to him and the State’s view is inaccurate, he had
that knowledge that the State was going to seek it.
And not only did I inform him of it, I provided him the case. I left
the plea offer open, and it was rejected. So I think that should be
clarified for the record.
TRIAL COUNSEL: And again, because this case was just that
way, Mr. Gelof did provide me that case on Day 4 of trial, at which
point he said, when we started trial, all plea offers were revoked.18
I believe the record supports my conclusion that the Prosecutor gave Wickkiser
to Trial Counsel during the trial and that the Prosecutor kept the plea offer open for
a number of reasons. One, the timing of the issuance of Wickkiser supports my
conclusion. The Second Final Case Review was on March 19, 2014. The Delaware
Supreme Court issued Wickkiser on March 25, 2014. Sewell’s trial started on March
31, 2014. Thus, the Prosecutor could not have given Wickkiser to Trial Counsel at
Sewell’s Second Final Case Review. Two, the Prosecutor and Trial Counsel both
agree that the Prosecutor gave Wickkiser to Trial Counsel during the trial. Three, my
comments at sentencing state that one of the attorneys gave me a copy of Wickkiser
during the trial. Thus, there is no doubt that the Prosecutor gave Wickkiser to Trial
Counsel during the trial.
I conclude that the Prosecutor gave Trial Counsel the Wickkiser case and the
18
Id. at 5-6.
12
draft habitual offender motion during the trial in one last ditch effort to convince Trial
Counsel that Sewell was eligible for habitual sentencing, that the Prosecutor would
seek habitual sentencing, and that Sewell would be wise to accept the plea offer. If
the Prosecutor had no intention of keeping the plea offer open during the trial, then
there was no point in giving Trial Counsel the draft habitual offender motion and the
Wickkiser case. The Prosecutor obviously did so in an effort to avoid the mess that
we are now in. The fact that the Prosecutor was adamant at sentencing about keeping
the plea offer open and his decision not to file an affidavit challenging Sewell’s
allegations in his Amended Motion for Postconviction Relief and Trial Counsel’s
uncertainty about whether the Prosecutor made a plea offer during the trial and the
timing of the issuance of Wickkiser all support my conclusion that the State made one
last plea offer during the trial. There is no doubt that Trial Counsel did not present
the last plea offer to Sewell during the trial. Thus, Sewell had no opportunity to
accept it.
Prejudice
I do find that there is a reasonable probability that Sewell would have accepted
the Trial Plea Offer. The question is why would Sewell take a plea that he had
previously rejected. I reach this conclusion for two reasons. One, if Trial Counsel
had properly explained to Sewell that he was not facing a mandatory seven years if
13
convicted but 81 years instead, Sewell would have had a correct understanding of
what he was facing. Two, the trial was not going well for Sewell when the Prosecutor
made the Trial Plea Offer. After three days of trial, four witnesses who were at the
outdoor party had testified that they saw Sewell shoot Howard Whaley.19 Three of
the witnesses, Jacqueline Boyer, Jeremy Ricketts, and Marvin Burton, all knew
Sewell before the shooting and identified him in Court as the shooter. The Fourth
witness, Lakeshia Boyer, did not know Sewell but identified him in Court as the
shooter. All four witnesses testified that Sewell got the gun he used to shoot Howard
Whaley from Precious Tiggs. There is no doubt Sewell was prejudiced. He went
from a seven-year mandatory sentence to an 81-year mandatory sentence as a result
of Trial Counsel’s actions. If Sewell had accepted the Trial Plea Offer, I would have
accepted it and sentenced Sewell to a sentence that was less than the mandatory 81
years.
Conclusion
Defendant Derrick Sewell’s Amended Motion for Postconviction Relief is
Granted. The remedy is for the State to again offer the Trial Plea Offer to Sewell.20
19
The first day of trial was used for jury selection and various pretrial matters. Thus,
things were not going well for Sewell after only two days of testimony.
20
Lafler, 566 U.S. at 174.
14
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley
ESB/sal
cc: Prothonotary
15