LYNNE M. PARKER, Commissioner.
This 12th day of June 2017, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
BACKGROUND, FACTS AND PROCEDURAL HISTORY
1. On July 21, 2014, Defendant Jy'Aire D. Smith was indicted on the charges of Possession of a Firearm by a Person Prohibited ("PFBPP") and Possession of Ammunition by a Person Prohibited ("PABPP").
2. On December 16, 2014, Defendant pled guilty to the charge of PABPP. As part of the plea agreement, the State agreed to dismiss the PFBPP charge.
3. If convicted of the PFBPP charge, Defendant was facing a minimum mandatory prison term of 10 years.
4. The charges stemmed from the seizure of a gun and ammunition from Defendant's belongings at the residence where he was staying. The State had photographs of Defendant holding a gun with unique characteristics. The gun seized from Defendant's residence had the same unique characteristics as the gun Defendant was holding in the photographs.
5. After the plea was entered but before sentencing, Defendant requested the appointment of new counsel to represent him.
6. Following a presentence investigation, on June 26, 2015, Defendant was sentenced to a total of eight years at Level V, suspended after three years, followed by probation.
7. Defendant did not file a direct appeal to the Delaware Supreme Court.
DEFENDANT'S RULE 61 MOTION
8. On June 27, 2016, Defendant timely filed the subject Rule 61 motion.
9. Before making a recommendation, the record was enlarged and Defendant's counsel were both directed to submit Affidavits responding to Defendant's ineffective assistance of counsel claims. Thereafter, the State filed a response to the motion. Finally, Defendant was afforded an opportunity to submit a reply thereto.
10. The claims raised in the subject motion are procedurally barred, waived and without merit.
A) One of the Claims Raised by Defendant is Procedurally Barred
11. Prior to addressing the substantive merits of any claim for postconviction relief the court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61.
12. Rule 61(i)(3) required that Defendant raise his claims, with the exception of his ineffective assistance of counsel contentions, on direct appeal.
13. As to Defendant's claim that he was sentenced incorrectly because his sentence exceeded sentencing guidelines, this claim is procedurally barred by Rule 61(i)(3), for Defendant's failure to raise it on direct appeal. This claim was known to Defendant since the date of his sentencing on June 25, 2015. Therefore, there is no justifiable reason for Defendant's failure to raise the issue on direct appeal if Defendant genuinely believed the claim had any merit.
14. If a procedural bar exists, the court will not consider the merits of the claim unless the defendant can show that an exception found in Rule 61(i)(5) applies. Rule 61(i)(5) provides that consideration of an otherwise procedurally barred claim is limited to claims that the court lacked jurisdiction, or to claims that new evidence exists that creates a strong inference that the defendant is actually innocent of the underlying charges for which he was convicted; or to claims that a new rule of constitutional law applicable to that defendant's case would render his conviction invalid.
15. In the subject motion, Defendant is unable to overcome the procedural hurdles of Rule 61(i)(3) by showing an exception in Rule 61(i)(5) applies. Defendant has not established that the court lacked jurisdiction, that any new evidence existed to create a strong inference that Defendant is actually innocent of the underlying charges, or that a new rule of constitutional law exists that would render his conviction invalid. Defendant's claim that he was sentenced incorrectly is procedurally barred.
B) All of Defendant's Claims Were Waived Upon Entry of His Plea
16. In addition to Defendant's claim that he was sentenced incorrectly being procedurally barred, all of Defendant's claims were waived upon the entry of Defendant's guilty plea.
17. Although Defendant now claims that his plea was somehow not informed due to his counsel's ineffectiveness, Defendant's Rule 61 claims are belied by the representations he made at the time he accepted his plea, admitted his guilt, and was sentenced.
18. 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.
19. At the plea colloquy, Defendant represented to the court that he had read and understood the plea agreement and the Truth-in-Sentencing Guilty Plea Form, and that he had reviewed the terms of the plea with his counsel and that counsel answered any questions he had to his satisfaction.
20. Defendant represented to the court that nobody was forcing him to enter his plea. Defendant represented that he was freely and voluntarily pleading guilty to the PABPP charge. Defendant represented that he was not being threatened or forced to do so by his attorney, by the State, or by anyone else.
21. During the plea colloquy and in the Truth-in-Sentencing Guilty Plea Form, Defendant represented that he understood that by pleading guilty he was waiving his constitutional rights: to have a trial; to be presumed innocent until the State proves each and every part of the charges against him beyond a reasonable doubt; to a trial by jury; to hear and question witnesses; to present evidence in his defense; to testify or not testify; and to appeal, if convicted.
22. Defendant represented that he understood that he was waiving each and every one of those rights by pleading guilty.
23. Defendant admitted his guilt for the PABPP charge for which he pled guilty.
24. Defendant has not presented any clear, contrary evidence to call into question his prior testimony at the plea colloquy, Plea Agreement or answers on the Truth-In Sentencing Guilty Plea Form.
25. Since Defendant's plea was entered into voluntarily, intelligently and knowingly, Defendant waived his right to challenge any alleged errors, deficiencies or defects occurring prior to the entry of his plea, even those of constitutional proportions.
C) Defendant's Claims Are Without Merit
26. In addition to one of Defendant's claims being procedurally barred and all of Defendant's claims being waived, Defendant's claims are also without merit. Defendant claims that his trial counsel was ineffective for not providing him with Rule 16 discovery and for not wanting to go to trial, and that his second counsel was ineffective for not having enough time to prepare for trial after his first counsel was replaced and for the whole trial process not starting all over. Finally, Defendant claims that he was sentenced incorrectly because his sentence exceeded the presumptive sentence.
27. Turning first to the ineffective assistance of counsel claims, 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.
28. 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.
29. The United States Supreme Court has reiterated the high bar that must be surmounted to prevail on an ineffective assistance of counsel claim.
30. Turning to the specific claims raised by Defendant in the subject motion, Defendant first claims that his counsel was ineffective for not providing him with his Rule 16 discovery packet so he could properly defend himself and for telling Defendant that he did not want to go to trial.
31. Counsel, in his Affidavit in response to Defendant's Rule 61 motion, represents that he had discussed in detail with Defendant the evidence against him on several occasions prior to trial.
32. Counsel also made the same representations on the record during the plea colloquy that he now makes in his Affidavit in response to Defendant's Rule 61 motion.
33. During the plea colloquy, counsel further represented to the court that he discussed all the factual allegations with Defendant, discussed the penalties he was facing, and that Defendant understood he had the option of going to trial or accepting the plea, and that Defendant further understood that if he was convicted at trial he was facing a minimum mandatory prison term of 10 years.
34. Despite Defendant's present contentions, at the time Defendant accepted the plea Defendant, personally, represented to the court that he had an opportunity to discuss with counsel the plea, to go over the plea agreement, the Truth-In-Sentencing Guilty Plea Form, and to discuss the constitutional rights he would be waiving by accepting the plea. Defendant represented to the court that counsel answered all his questions to his satisfaction and that he wanted to accept the plea. He represented to the court that he was not coerced in any way to enter into the plea agreement.
35. The record reflects that Defendant was adequately advised of the evidence against him, the charges, the plea offer, and the penalties he would be facing if the plea was accepted and the penalties he would be facing if the plea was not accepted. The State's case against Defendant was strong, and if convicted at trial, Defendant was facing a sentence of not less than 10 years and up to 33 years of incarceration. It was not deficient in any regard for defense counsel to advise Defendant that in light of the circumstances it was in his best interest to accept the plea.
36. Counsel's advice to Defendant to accept the plea because counsel did not want to go to trial was sound advice, and not deficient in any regard, in light of the plea offer, the strong evidence against him, and the significantly greater sentence Defendant was facing if convicted at trial.
37. Defendant received a significant benefit from the plea agreement negotiated by counsel. Any claim that the plea was not informed is belied by Defendant's representations at the time of the plea and is without merit. Defendant's claim that his counsel at the time of the plea was deficient in any respect is without merit and belied by the record.
38. Defendant's claim that his substituted counsel did not have enough time to prepare for trial after his first attorney was replaced and that the trial process should have started all over again, is without merit. Substituted counsel represents that after he was appointed to represent Defendant, which was prior to Defendant's sentencing, counsel reviewed the evidence in the case with Defendant and Defendant agreed that it was in his best interest to move forward with sentencing.
39. Turning to Defendant's final claim, Defendant claims that he was sentenced incorrectly because his sentence was greater than the presumptive sentence. This claim is also without factual support and is without merit. It is well settled that a defendant has no legal or constitutional right to appeal a sentence solely on the ground that it deviates from the presumptive sentencing guidelines.
40. In this case, the court expressly stated on the record the aggravating circumstances that led to the court's imposition of the sentence imposed. At sentencing, the court noted that Defendant's repetitive criminal conduct and his non-amenability to a lesser sanction were aggravating circumstances that led to the sentence imposed.
41. Defendant's claims are procedurally barred, waived and without merit.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.