McGHEE v. STATE, 738 A.2d 238 (Del. 1999)

No. 170, 1999.Supreme Court of Delaware.
September 8, 1999.

Appeal from the Superior Court, New Castle County, CrA IN95-01-0072.

AFFIRMED

Unpublished Opinion is below.

KENNETH McGHEE, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 170, 1999. Supreme Court of Delaware. September 8, 1999.

Court Below — Superior Court of the State of Delaware, in and for New Castle County Cr.A. No. IN95-01-0072.

Before VEASEY, Chief Justice, WALSH andHARTNETT, Justices.

ORDER
This 8th day of September 1999, upon consideration of the briefs on appeal and the record below, it appears to the Court that:

(1) The defendant-appellant, Kenneth McGhee (“McGhee”), filed this appeal from the April 6, 1999 order of the Superior Court which denied his motion for postconviction relief pursuant to Superior Court Criminal Rule 61 (“Rule 61”).[1] We find no merit to the appeal. Accordingly, we affirm.

(2) McGhee asserts three grounds for this appeal: first, his guilty plea was coerced due to ineffective assistance of counsel; second, his guilty plea was coerced due to prosecutorial misconduct; and, third, the Superior Court abused its discretion by accepting a guilty plea it knew was coerced and by relying on an improper legal standard for ineffective assistance of counsel. To the extent McGhee has not argued other claims that were raised in his postconviction motion, those claims are deemed abandoned and will not be addressed by this Court.[2]

(3) McGhee pleaded guilty to Unlawful Sexual Intercourse Second Degree and was sentenced to 20 years in prison, 10 years of which was a mandatory minimum sentence.

(4) In order to prevail on his first claim of a coerced guilty plea due to ineffective assistance of counsel, McGhee must show that his counsel’s representation fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the proceedings would have been different.[3]
Although not insurmountable, the Strickland standard is highly demanding and leads to a “strong presumption that the representation was professionally reasonable.”[4]

(5) McGhee’s claim that his guilty plea was coerced is based on his contention that his counsel failed to investigate the physical evidence that underlay the State’s case, improperly waived a preliminary hearing that would have uncovered flaws in the State’s case and failed to engage in any pretrial investigation. McGhee also contends, in conclusory fashion, that he, like other indigent defendants, received inadequate representation from the Office of the Public Defender. These conclusory and unsupported contentions fail to overcom Strickland‘s presumption of “professionally reasonable” representation. In addition, McGhee’s plea form and plea colloquy reflect that he freely and voluntarily entered a plea of guilty, that he was not coerced into accepting a plea and that he was satisfied with the representation provided by his counsel. In the absence of clear and convincing evidence to the contrary, McGhee is bound by those representations.[5]

(6) McGhee’s second contention is that his guilty plea was coerced due to prosecutorial misconduct. He appears to argue that there was insufficient physical evidence to support the charge of Unlawful Sexual Intercourse First Degree brought against him by the prosecutor. He further appears to argue that the existence of this serious, but unfounded, charge forced him into entering a plea of guilty on the lesser charge of Unlawful Sexual Intercourse Second Degree. A review of the record indicates that, while a more lenient plea bargain was initially discussed with McGhee, all previous offers were withdrawn once the FBI report establishing a DNA match was received by the prosecutor. The plea colloquy establishes that, at the time of his guilty plea, McGhee had consulted with counsel, understood the possible consequences should the DNA evidence be presented at trial and, on that basis, entered his guilty plea. There is, thus, no record support for McGhee’s contention that his guilty plea was coerced due to prosecutorial misconduct.

(7) Rollins’ third claim is that the Superior Court judge abused his discretion by accepting a guilty plea that he knew to be coerced and by applying an improper standard for ineffective assistance of counsel in denying Rollins’ motion for postconviction relief. This claim was not presented to the Superior Court in the first instance and this Court will not consider it for the first time on appeal.[6] Even if this claim had been raised below, it would be unavailing here. There is no record support for the contention that the Superior Court accepted a plea it knew to be coerced. Furthermore, the Superior Court properly applied the legal standard contained in Strickland
in deciding the issue of ineffective assistance of counsel.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, AFFIRMED.

BY THE COURT:

_______________________________ E. Norman Veasey, Chief Justice