State v. Horta

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STATE OF DELAWARE, )
)
Plaintiff, )
)
v. ) Cr. ID Nos. 2010001394
) 2010001654
JACQUANE D. HORTA, )
)
Defendant. )
Submitted: April 5, 2024
Decided: May 3, 2024
COMMISSIONER’S REPORT AND RECOMMENDATION THAT
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
SHOULD BE DENIED
Jillian L. Schroeder, Deputy Attorney General, Department of Justice, Wilmington,
Delaware, Attorney for the State.
Jacquane D. Horta, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.
PARKER, Commissioner
This 3rd day of May 2024, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:
BACKGROUND, FACTS AND PROCEDURAL HISTORY
1. Two cases were resolved as part of the global plea offer that Defendant
Jacquane D. Horta accepted on October 31, 2022.
2. In Criminal Action No. 2010001394, Horta was indicted on the charges of
four counts of Attempted Murder in the First Degree, Possession of a Firearm During
the Commission of a Felony, and Criminal Mischief.
3. This case involved charges stemming from a road-rage incident that occurred
on October 3, 2020. Horta, while operating a dark green Dodge pick-up truck, ran
a red light while operating his vehicle at a high rate of speed. At the next
intersection, a verbal argument ensued between Horta and the driver of another
vehicle about his erratic driving. In the other vehicle, there were four people. The
father and mother were in the front seat and a ten-year-old girl and her younger
brother were in the back seat. A few minutes after the encounter, Horta open-fired
into the victim’s vehicle and shattered the rear window of the vehicle. There were
five bullet holes in the rear of the vehicle, including three in the rear windshield.
The ten-year-old girl was struck by the gunfire and suffered a gunshot wound to her
hand, a graze wound behind her left ear, and lacerations to her shoulder.1
1
See, as to Criminal Action No. 2010001394, D.I. 1-Affidavit of Probable Cause attached as
Exhibit B to Justice of Peace Court No. 11 Commitment filed in the Superior Court on
1
4. During the police investigation, officers developed Horta as the suspect, and
during a photographic line-up, both the mother and father positively identified Horta
as the man driving the green Dodge pick-up truck who open-fired on their vehicle.2
5. After his arrest, Horta confessed to shooting at the vehicle with the little girl
in the backseat and told police he threw the firearm off a bridge into a body of water.3
6. In Criminal Action No. 2010001654, Horta was indicted on the charges of
Attempted Murder in the First Degree, Possession of a Deadly Weapon During the
Commission of a Felony, Aggravated Menacing, and Conspiracy in the First Degree.
7. This case involved charges stemming from a stabbing incident that also
occurred on October 3, 2020. A short time after the road-rage incident, law
enforcement responded to a residence on 5th Street, in Wilmington, Delaware in
response to an assault victim. A male victim was suffering from numerous stab
wounds to his entire body. The victim told police that Horta was one of the assailants
and that Horta drove a green Dodge pick-up truck.4
8. On October 31, 2022, Horta pled guilty, in a global plea, to two counts of
Attempted Assault in the First Degree (a lesser-included offense to Attempted
Murder in the First Degree) related to the road-rage incident, one count of Possession
of a Firearm During the Commission of a Felony related to the road-rage incident,
November 2, 2020; February 10, 2023 Sentencing Transcript, at pgs. 6, 9; State’s Response to
Defendant’s Rule 61 motion, at pgs. 1-3.
2
Id.
3
Id.
4
Id.
2
and Conspiracy in the Second Degree (a lesser-included offense to Conspiracy in the
First Degree) related to the stabbing incident. In the plea agreement, the parties
agreed to a presentence investigation and to an “open” sentencing. The State agreed
to cap its sentence recommendation to a total of nine years of unsuspended Level V
prison time.
9. On February 10, 2023, Horta was sentenced to a total of eleven years of
unsuspended Level V prison time, followed by decreasing levels of supervision.
10. Horta did not file a direct appeal.
11. On February 28, 2023, Horta filed a motion for sentence modification which
was denied by the Court by Order dated March 10, 2023.5
HORTA’S RULE 61 MOTION
12. Horta filed the subject Rule 61 motion for post-conviction relief on August
16, 2023. In the subject motion, Horta raises four ineffective assistance of counsel
claims. Horta claims that his counsel: (1) failed to advise him of his double jeopardy
defense; (2) failed to contact witnesses and failed to consult with him; (3) failed to
file a Rule 35(b) motion to reduce Horta’s sentence; and (4) failed to investigate the
victim’s medical records and failed to explore potential exculpatory information
contained in police reports.
13. In this Rule 61 motion, the record was enlarged and Horta’s trial counsel was
directed to submit an Affidavit responding to his ineffective assistance of counsel
5
As to Criminal Action No. 2010001394, D.I. 36.
3
claims. Thereafter, the State filed a response to the motion and Horta was permitted
to file a reply thereto.6
14. In order to prevail on an ineffective assistance of counsel claim, the
defendant must meet the two-pronged Strickland test by showing that: (1) counsel
performed at a level “below an objective standard of reasonableness” and that, (2)
the deficient performance prejudiced the defense.7 The first prong requires the
defendant to show by a preponderance of the evidence that defense counsel was
not reasonably competent, while the second prong requires him to show that there
is a reasonable probability that, but for defense counsel’s unprofessional errors, the
outcome of the proceedings would have been different.8
15. In the context of a plea challenge, it is not sufficient for the defendant to
simply claim that his counsel was deficient. The defendant must also establish that
counsel’s actions were so prejudicial that there was a reasonable probability that,
but for counsel’s deficiencies, the defendant would not have taken a plea but would
have insisted on going to trial.9 The burden of proving ineffective assistance of
counsel is on the defendant.10 Mere allegations of ineffectiveness will not suffice;
6
Super.Ct.Crim.R. 61(f) and 61(g).
7
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
8
Id. at 687-88, 694.
9
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984); Somerville v. State, 703 A.2d 629,
631 (Del. 1997); Premo v. Moore, 131 S.Ct. 733, 739-744 (2011).
10
Oliver v. State, 2001 WL 1751246 (Del.).
4
instead, a defendant must make and substantiate concrete allegations of actual
prejudice.11
16. The United States Supreme Court has reiterated the high bar that must be
surmounted to prevail on an ineffective assistance of counsel claim.12 The United
States Supreme Court cautioned that in reviewing ineffective assistance of counsel
claims in the context of a plea bargain, the court must be mindful of the fact that
“[p]lea bargains are the result of complex negotiations suffused with uncertainty,
and defense attorneys must make careful strategic choices in balancing opportunities
and risks.”13
17. It is important to emphasize that Horta admitted to being the shooter in the
road-rage incident. In addition, the victims had also positively identified Horta as
being the shooter. He was facing four counts of attempted murder in the first degree,
related to the road-rage incident. If Horta did not accept the global plea, and was
convicted at trial, he would be facing at least 15 years of unsuspended prison time
for each of the attempted murder in the first degree convictions, up to the possibility
of multiple life sentences, plus significant more prison time on the other related
charges.14
11
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
12
Premo v. Moore, 131 S.Ct. 733, 739-744 (2011).
13
Id., at pg. 741.
14
See, 11 Del. C. § 4205
5
18. Horta’s plea represented a prudent choice given the pending charges, the
evidence against him, and the possible sentences he was facing if convicted at trial.
It is hard to envision how trial counsel’s representation of Horta could be deemed
deficient in any respect given the ultimate result achieved in light of the facts and
circumstances presented herein.
19. With this backdrop in mind, we turn to Horta’s specific claims.
Claim One: Failure to Advise of Double Jeopardy Defense
20. In Claim One, Horta claims that his trial counsel was ineffective for failing to
advise him of his double jeopardy defense before entering into his guilty plea.
21. Horta’s defense counsel, in his Affidavit in response to Horta’s Rule 61
motion, advises that this was Horta’s first trial, he had no double jeopardy defense.15
22. Horta did not provide any specifics or support for his alleged double jeopardy
defense. Conclusory, unsupported and unsubstantiated allegations are insufficient
to establish a claim of ineffective assistance of counsel.16
23. An ineffective assistance of counsel claim based on the failure to object to
evidence is without merit if trial counsel lacked a legal or factual basis to object to
the evidence.17
24. This unsubstantiated claim is without merit.
15
As to Criminal Action No. 2010001394, D.I. 42- Affidavit of Trial Counsel, at pg. 1.
16
Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Brown, 2004 WL 74506, *2
(Del.Super. 2004) (conclusory and unsubstantiated allegations of unprofessional conduct are
insufficient to support a motion for postconviction relief).
17
State v. Exum, 2002 WL 100576, at *2 (Del.Super.), affirmed, 2002 WL 2017230, at *1 (Del.).
6
Claim Two: Failure to Consult with Horta or Contact Witnesses
25. In Claim Two, Horta claims that his trial counsel failed to contact witnesses
or consult with Horta, which placed him in fear and caused him to accept the plea
offer.
26. Horta’s present claim is belied by the record. A defendant is bound by his
answers on the guilty plea form and by his testimony at the plea colloquy in the
absence of clear and convincing evidence to the contrary.18
27. In the subject action, the Plea Agreement, Truth-in-Sentencing Guilty Plea
Form and plea colloquy establish that Horta entered into his guilty plea intelligently,
knowingly, and voluntarily.19
28. Horta confirmed that his counsel explained the terms of the plea agreement,
the rights he was waiving and the penalties he could suffer, and that he was entering
into the plea knowingly, intelligently and voluntarily.20 Horta represented that he
understood that by pleading guilty he was waiving his right to hear and question
witnesses and to present evidence in his own defense.21
29. Horta expressly represented to the Court that he was able to confer with
counsel and have all his questions answered22
18
State v. Harden, 1998 WL 735879, *5 (Del. Super.); State v. Stuart, 2008 WL 4868658, *3
(Del. Super. 2008).
19
October 31, 2022 Plea Transcript; Truth-in-Sentencing Guilty Plea Form dated October 31,
2022; Plea Agreement dated October 31, 2022.
20
October 31, 2022 Plea Transcript, at pgs. 4-5.
21
October 31, 2022 Plea Transcript, at pgs. 6-7
22
October 31, 2022 Plea Transcript, at pgs. 5-8.
7
Horta further represented that he was satisfied with his counsel’s representation and
had been fully advised of his rights.23
30. A defendant’s statements to the Superior Court during the guilty plea colloquy
are presumed to be truthful.24 Likewise, in this matter, at the plea colloquy, Horta
expressly represented that he was testifying truthfully.25
31. Horta has not presented any clear, contrary evidence to call into question his
testimony at the plea colloquy, Plea Agreement, or answers on the Truth-in-
Sentencing Guilty Plea Form. Horta’s valid guilty plea waived his right to challenge
any alleged errors, deficiencies or defects occurring prior to the entry of his plea,
even those of constitutional proportions.26
32. Horta’s defense counsel, in his Affidavit in response to Horta’s Rule 61
motion, represents that he undertook a complete, thorough and comprehensive
review and investigation of the facts, reviewed the police reports and video
surveillance films including police films in which Horta made a voluntary
confession admitting that he committed the crimes.27 Defense counsel also hired a.
private investigator to investigate and look into the case, review the evidence and
interview the defendant28
23
Truth-in-Sentencing Guilty Plea Form dated October 31, 2022.
24
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
25
October 31, 2022 Plea Transcript, at pg. 5.
26
Somerville v. State, 703 A.2d 629, 632 (Del. 1997); Modjica v. State, 2009 WL 2426675 (Del.
2009); Miller v. State, 840 A.2d 1229, 1232 (Del. 2004).
27
As to Criminal Action No. 2010001394, D.I. 42- Affidavit of Trial Counsel, at pg. 1-2.
28
Id.8
33. Horta’s present claim is wholly unsupported by the record. This
unsubstantiated ineffective assistance of counsel claim was waived at the time of the
plea. Since Horta has failed to make any concrete allegation of deficient conduct,
let alone, deficient conduct that resulted in actual prejudice, this claim is also without
merit.
Claim Three: Failure to File a Rule 35(b) Motion
34. In Claim Three, Horta claims that his trial counsel was ineffective for failing
to file a Rule 35(b) motion to reduce his sentence.
35. The Plea Agreement provided that the State would cap its sentence
recommendation to 9 years of unsuspended prison time.29 Horta understood that the
Court would consider the State’s sentence recommendation but could sentence Horta
to unsuspended prison time of between 7 to 77 years.30
36. At sentencing, in keeping with the Plea Agreement, the State requested that
Horta be sentenced to 9 years of unsuspended prison time.31
37. The Court, after considering the sentencing recommendations of the parties,
sentenced Horta to a total of 11 years of unsuspended prison time. 32
38. Horta filed a Rule 35(b) motion for sentence reduction which was denied by
the Court. In denying the motion, the Court noted that the sentence was imposed
29
Plea Agreement dated October 31, 2022.
30
October 31, 2022 Plea Transcript, at pg. 8.
31
February 10, 2023 Sentencing Transcript, at pg. 8.
32
February 10, 2023 Sentencing Transcript, at pgs. 14-16.
9
after reviewing the facts and circumstances of the charges through a pre-sentence
investigative report and after hearing from the State, the Defense, and Mr. Horta.
The Court concluded that there was no basis for a reduction or modification of the
sentence.33
39. Horta’s trial counsel cannot be deemed ineffective for failing to file a motion
for sentence modification when there was no legal or factual basis to do so.34
40. Horta has not established that his counsel was deficient in any respect or that
he has suffered any actual prejudice therefrom. This claim is without merit.
Claim Four: Failure to Review Medical Records and/or Investigate
41. In Claim Four, Horta claims that his trial counsel was ineffective for failing
to investigate the victim’s medical records and for failing to investigate potential
exculpatory information contained in the police report.
42. Horta does not provide any basis or support for this claim. Conclusory,
unsupported and unsubstantiated allegations are insufficient to establish a claim of
ineffective assistance of counsel. 35
43. Moreover, Horta’s defense counsel, in his Affidavit in response to Horta’s
Rule 61 motion, represents that he reviewed the victim’s medical records and
33
As to Criminal Action No. 2010001394, D.I. 36- Order denying Motion for Sentence
Reduction.
34
See, State v. Exum, 2002 WL 100576, at *2 (Del.Super.), affirmed, 2002 WL 2017230, at *1
(Del.)..
35
Younger v. State, 580 A.2d 552, 556 (Del. 1990); State v. Brown, 2004 WL 74506, *2
(Del.Super. 2004) (conclusory and unsubstantiated allegations of unprofessional conduct are
insufficient to support a motion for postconviction relief).
10
performed a comprehensive investigation and review of the police and surveillance
films. Those films included a film that showed Horta at the crime scene and a file
that contained Horta’s recorded confession.36 Defense counsel also hired a private
investigator that looked into the case, reviewed the evidence, and interviewed the
defendant.37
44. After reviewing the evidence to determine whether Horta had viable defenses,
Horta’s trial counsel filed a motion to suppress seeking to suppress Horta’s statement
to the police during which he confessed.38 Following a hearing on the motion, the
motion was ultimately denied.39
45. In this case, at the time Horta entered into his plea, the evidence against Horta
was overwhelming. He was facing four counts of attempted murder in the first
degree related to the road-rage incident. He admitted to being the shooter and he
was positively identified by the victims. His suppression motion was already denied.
46. Horta was facing between at least 60 years of prison time and up to four life
sentences, if convicted of the four counts of attempted murder in the first degree
related to the road-rage incident. He was facing significantly more prison time on
the other charges he was also facing.
47. Horta waived his right to test the State’s case and raise defenses at the time of
36
As to Criminal Action No. 2010001394, D.I. 42- Affidavit of Trial Counsel, at pg. 1-2.
37
Id.38
As to Criminal Action No. 2010001394, D.I. 16- Affidavit of Trial Counsel, at pg. 1-2.
39
As to Criminal Action No. 2010001394, D.I. 25.
11
his plea. He could have elected to proceed to trial thereby preserving the right to
test the State’s case and preserving the right to raise any defenses that may have
existed but he would then have been exposed to substantially more prison time if
convicted. Instead, he chose to waive those rights and accept the plea offer.
48. Horta’s plea represented a prudent choice given the evidence against him and
the possible sentences he was facing if convicted at trial.
49. Horta’s unsubstantiated claim that counsel was ineffective for failing to
investigate his case was waived when Horta voluntarily entered into his guilty plea.
In addition to being waived, the claim is also with merit. Horta has not established
that his counsel was deficient in any respect or that he has suffered any actual
prejudice therefrom. His ineffective assistance of counsel claims must fail.
For all of the foregoing reasons, Horta’s Motion for Postconviction Relief
should be DENIED.
IT IS SO RECOMMENDED.
/s/ Lynne M. Parker
Commissioner Lynne M. Parker
cc: Prothonotary
Michael Heyden, Esquire
12