STATE v. MOBLEY, 0605023366 (Del.Super. 11-2-2007)

STATE OF DELAWARE v. TERRELL S. MOBLEY, Defendant.

I.D. No. 0605023366.Superior Court of Delaware, New Castle County.Submitted: October 15, 2007.
Decided: November 2, 2007.

UPON CONSIDERATION OF DEFENDANT’S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF DENIED.

PEGGY L. ABLEMAN, Judge.

This 2nd day of November, 2007, it appears to the Court that:

1. On November 4, 2005, Terrell S. Mobley (“Mobley”) pled guilty to one count of burglary in the second degree. Mobley also admitted to being a habitual offender under 11 Del. C. § 4214(a). The Court sentenced Mobley on November 11, 2005 to the minimum mandatory period of eight years at Level V. On May 12, 2006, Mobley filed an appeal to the Delaware Supreme Court, which affirmed this Court’s sentence on July 10, 2006. Mobley then filed this, his first pro se motion for postconviction relief, on July 6, 2007.

2. In this motion, Mobley raises three grounds for postconviction relief. Specifically, Mobley argues: (1) that he was illegally detained

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because he was held at a V.O.P. Center until March 21, 2005 when he was reindicted, even though his first indictment was dismissed on February 9, 2005; (2) that his attorney had a conflict of interest because he knew the victim of the burglary, and that counsel did not inform Mobley of this fact until after he had entered his plea; and (3) that his attorney refused to communicate with him before the plea agreement and that, at the plea colloquy, his attorney told him to “accept the plea or else.”

3. In response to allegations that he knew the victims, Mobley’s counsel states that, although he was familiar with the complaining witness and other interested parties, that familiarity did not affect his professional judgment in any objective or subjective manner. Counsel also notes that he informed Mobley of his familiarity with the witnesses before the plea negotiation at Mobley’s violation of probation hearing on May 19, 2005. Because Mobley did not raise this concern during the plea colloquy and the Supreme Court dismissed this argument, Counsel submits that Mobley’s first argument must fail.

4. In addition, in response to Mobley’s argument that Counsel did not respond to his communications and forced him to accept a plea, Counsel notes that a trial was scheduled on Mobley’s behalf, with a jury having been selected. Counsel explains that, after entering his appearance with the Court

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on April 26, 2005, he sent Mobley communications on May 19, 2005 after the case had a fast track calendar/case review on April 27, 2005. Additionally, according to Counsel, before the initial case review on June 16, 2005, he met with Mobley face to face and had extensive communications. Though Counsel admits that he did not respond to every letter, Counsel states that there was extensive communication during the case review, violation of probation process, and the period prior to trial.

5. 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 (“Rule 61”).[1] If the procedural requirements of Rule 61 are not met, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.[2]

6. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction;[3] (2) any basis

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for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formally adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply “to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction.”[4] Moreover, the procedural bars of (2) and (4) may be overcome if “reconsideration of the claim is warranted in the interest of justice.”[5]

7. In this case, Mobley’s first ground for relief, that he was illegally detained, is procedurally barred under Rule 61(i)(3). Mobley failed to raise this ground at his plea colloquy or on his direct appeal to the Supreme Court. Nor has there been any showing that Mobley’s rights have been prejudiced or that there exists any cause for relief. Finally, even if Mobley was illegally detained, his detention did not undermine “the

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fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of [Mobley’s] conviction”[6]
because Mobley pled guilty after making a knowing, voluntary, and intelligent waiver of his rights. Accordingly, the Court will not address the first ground.[7]

7. Mobley’s arguments related to his claim that his counsel was ineffective, however, are not procedurally barred. Specifically, (1) Mobley filed this motion within a year of the final order of his conviction;[8] (2) Mobley raised these grounds in his direct appeal to the Supreme Court; (3) Mobley raised the conflict of interest claim on appeal and has shown cause for relief by alleging that his attorney pressured him into accepting the plea; and (4) the Supreme Court refused to address Mobley’s conflict of interest argument before this Court addressed it, and neither court has addressed his lack of communication argument. Moreover, a claim of ineffective assistance of counsel is not procedurally barred because it is “a constitutional violation that undermines the fundamental legality, reliability,

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integrity or fairness of a proceeding.”[9] Accordingly, the Court will address these claims on their merits.

8. To evaluate Mobley’s ineffective assistance of counsel claims, the Court applies the two-part test of Strickland v. Washington.[10] Unde Strickland,

the defendant must show that counsel’s representation fell below an objective standard of reasonableness,” and “that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceedings would have been different.” In applying the two-part Strickland test to a defendant’s claim, the Court must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”[11]

9. More specifically, where the defendant alleges that his attorney had a conflict of interest, he must “prove by clear and convincing evidence [that] there is a conflict of interest in the first place; and (2) demonstrate how the conflict will prejudice the fairness of the proceeding.”[12] Mobley argues that his attorney was a friend of the victim and did not inform him until after he had entered a plea agreement with the State. Mobley also argues that his attorney “refused to seek a Garcia, although defendant with him to do so

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[sic].” Because this second allegation is unintelligible and not coherent, the Court will not address it.[13]

10. Other than stating that his attorney knew the victim, Mobley has offered no evidence, much less clear and convincing evidence, that his attorney had a conflict of interest. Mobley has offered no records, no letters, or any other evidence that would suggest to this court that Counsel had any conflict of interest. Similarly, although defense counsel argues that he informed Mobley of his familiarity with the victims at his violation of probation hearing on May 19, 2005, the Court has been provided with no

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evidence to determiner whether defense counsel did, in fact, inform Mobley. Without such evidence, the Court need not address Mobley’s claim.[14]

11. More importantly, based on the available record, the Court finds no conflict of interest. Under the Delaware Lawyer Rules of Professional Conduct, an attorney shall not represent a client if “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to . . . a third person or by a personal interest of the lawyer.”[15] In this case, because Mobley stated at his plea colloquy that he entered his plea knowingly, voluntarily, and intelligently, there was no significant risk that defense counsel’s relationship with the victims materially affected his representation of Mobley.

12. Even assuming there was a conflict, however, there is no evidence that the conflict prejudiced the fairness of the proceeding. The record reflects that Mobley was charged with Burglary in the Second Degree, Attempted Theft, Criminal Mischief, Conspiracy in the Second Degree, and Resisting Arrest. Mobley also admitted to being a habitual offender. Despite all of this, Counsel was able to negotiate a plea agreement on behalf of his client, whereby (1) the State dismissed four of the five

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charges; (2) the State requested only the mandatory minimum sentence; and (3) the Court sentenced Mobley to the minimum sentence of eight years, even in light of his prior criminal record. Both the victims and the State intended for Mobley to receive the most lenient, if any, sentence. At the plea colloquy, one of the victims told the Court:

I just would like to say to the State and to Mr. Mobley, I wish things would go different because I wouldn’t wish this — I wish — I wish things were different, but this is the nature of the beast because I didn’t do anything to [Mobley]. I still have no ill feelings against [Mobley], but this is how it’s got to go, man. Sorry. I just wanted to let [Mobley] know man to man sorry because I accept [Mobley’s] apology.[16]

The prosecutor agreed, adding:

Your honor, I had a long conversation with [the victims], and both of them are very conflicted regarding the type of sentence that Mr. Mobley is facing. And they were very concerned that they thought eight years was an awful long time to serve for Burglary Second. And I explained to them what his prior convictions were and how he has been given breaks in the past and hasn’t taken advantage of those breaks, and they understand that. And I believe it is the State’s position and the victims’ position that Mr. Mobley should get the minimum mandatory term of eight years in prison.[17]

Because Mobley received the minimum possible sentence and the most favorable result possible, given his record and the crimes charged, the Court

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finds that, even if Counsel was conflicted, Mobley was not prejudiced in any way.

13. Mobley next argues that his counsel failed to communicate with him until the day of trial, despite his many letters to his attorney requesting information. Mobley also claims that his attorney pressured him into accepting his plea agreement by stating that he “accept [the] plea or else.”

14. Based on the record, the Court concludes that counsel’s representation did not fall below an objective standard of reasonableness. Thus, Mobley’s claim fails the first prong o Strickland. Though Mobley’s attorney admits that he did not respond to every communication Mobley made to him, counsel sent Mobley at least two letters informing him of the status of his case within the one-and-a-half month period from his appointment as Mobley’s counsel up until he entered his guilty plea.[18] Counsel also requested and received a handwritten copy of Mobley’s version of the facts surrounding the burglary charge.[19] Counsel further states that he met with Mobley face to face on more than one occasion.[20] The evidence that counsel did, in fact, communicate with Mobley, coupled with the strong presumption that counsel engaged in reasonable professional assistance

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under Strickland, leads the Court to conclude that Mobley’s claim fails to meet the first prong.

15. Moreover, counsel’s failure to communicate as often as Mobley wished was not objectively unreasonable, given the fact that Mobley’s attorney was ready, willing, and able to go to trial and represent Mobley. Mobley’s case was scheduled to go to trial the day before he accepted the State’s plea agreement. In fact, Mobley rejected a plea agreement on June 13, 2005 and requested a jury trial, which was originally scheduled for November 3, 2005.[21] Counsel responded with a letter stating his intention to serve as Mobley’s counsel at trial and requested the names of witnesses that would need to be subpoenaed in Mobley’s defense.[22] Under these circumstances, counsel’s conduct plainly “falls within the wide range of reasonable professional assistance.”[23]

16. Even if the Court were to find that counsel’s failure to communicate fell below an objective standard of reasonableness, which it did not, the result of this case would not have been any different. Crucially, when Mobley decided to plead guilty to the crime of Burglary in the Second

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Degree, Mobley engaged in the following colloquy with the Court, making it clear that it was his decision, and not that of his attorney, to plead guilty:

The Court: How do you plead?
The Defendant: Guilty.
The Court: Did you commit that offense?
The Defendant: Yes.
The Court: Are you voluntarily pleading guilty?
The Defendant: Yes, I am.
The Court: All right. I will accept your guilty plea. I find it knowingly, willingly, and intelligently entered.[24]

If, in fact, Mobley was pressured into accepting this plea, he had a duty to inform the Court during this colloquy. Instead, he expressly stated that he was voluntarily pleading guilty. Not only does the record reflect that Mobley’s attorney negotiated a favorable plea agreement on Mobley’s behalf, particularly in light of his habitual offender status and the serious crimes with which the State charged him, but it also reflects that Mobley, at no time, either at the plea colloquy, after his sentence, or on appeal, raised this ground. Other than this unsubstantiated attack on his attorney’s professionalism, there is no evidence to support Mobley’s claim. As a

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result, the Court concludes that Mobley’s claim of ineffective assistance of counsel must fail.

17. For all of the foregoing, Mobley’s Motion for Postconviction Relief is hereby DENIED.

IT IS SO ORDERED. Original to Prothonotary

[1] Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
[2] State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
[3] If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
[4] Super. Ct. Crim. R. 61(i)(5).
[5] Id. R. 61(i)(4).
[6] Super. Ct. Crim. R. 61(i)(5).
[7] The Court notes that, even if Mobley had raised this ground, there was no illegal detention because the State could hold him in default of bail with charges valid on their face for up to 45 days after his arrest. See Browne v. Williams, 746 A.2d 275, at *2 (Del. 1999) (Table) (“Moreover, the indictment was filed within 45 days of his arrest and, therefore, [the defendant’s] claim of an untimely indictment is moot.”).
[8] Specifically, the Supreme Court issued its order on July 10, 2006. Mobley filed this motion on July 6, 2007.
[9] State v. Morla, 2007 WL 2566012, at *3 (Del.Super.Ct. Aug. 30, 2007).
[10] 446 U.S. 668 (1984)
[11] State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citin Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quotin Strickland, 466 U.S. at 688, 694).
[12] Hitchens v. State, 931 A.2d 437, at *2 (Del. Jul. 26, 2007) (Table) (citations omitted).
[13] See State v. Jordan, 1994 WL 637299, at *3 (Del.Super.Ct. Jun. 23, 1994) (“This Court need not address Postconviction Relief claims that are conclusory and unsubstantiated.”); Zimmerman v. State, 1991 WL 190298, at *1 (Del.Super.Ct. Sept. 17, 1991) (citations omitted) (“This Court will not address Rule 61 claims that are conclusory and unsubstantiated.”); State v. Canon, 1999 WL 1441997, at *3 (Del.Super.Ct. Dec. 9, 1999) (finding Defendant’s claim “repetitive, vague, and entirely conclusory, warranting summary dismissal”); State v. Brown, 1998 WL 735880, at *3 (Del. Super Ct. Aug. 20, 1998) (“Conclusory claims raised in a defendant’s motion for postconviction relief are insufficient to prove ineffective assistance of counsel and will not be addressed.”); State v. Dividu, 1992 WL 52348, at *2 (Del.Super.Ct. Feb. 12, 1992) (“[M]ovant has failed to provide any factual support for his perfunctory allegations. He does not state, for example, in what regard his counsel failed to prepare for trial[.] As Rule 61(b)(2) obviously contemplated, without this information I am unable to effectively evaluate the merit of movant’s claims.”); State v. Morgan, 2004 WL 1732282, at *2 n. 1 (Del.Super.Ct. July 27, 2004) (“Defendant makes an assertion in ground five concerning a motion for postconviction relief which is unintelligible and consequently, ignored.”); State v. Maldonado, 2004 WL 2735463, at *2 (Del.Super.Ct. Nov. 5, 2004) (“Defendant makes an argument of ineffective assistance of counsel, which frankly, is nonsensical.”).
[14] See, e.g., Jordan, 1994 WL 637299 at *3; Zimmerman, 1991 WL 190298 at *1; Brown, 1998 WL 735880 at *3; Dividu, 1992 WL 52348 at *2.
[15] Del. Lawyers’ Rules of Prof’l Conduct R. 1.7(a)(2).
[16] Docket 16 (Transcript of Plea Colloquy), p. 13:5-12.
[17] Id., p. 13:15 — 14:3.
[18] Docket 25, Ex. A.
[19] Id., Ex. B.
[20] Id., ¶ 14.
[21] Id., Ex. A.
[22] Id., Ex. A.
[23] State v. Desmond, 1995 WL 717628, at *2 (Nov. 16, 1995) (citin Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quotin Strickland, 466 U.S. at 688, 694).
[24] Docket 16, 11:12 — 12:21 (emphasis added).

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