Submitted: October 21, 2013
On Defendant's Motion for Postconviction Relief.
On Defendant's "Motion for Reconsideration of Appointment of Counsel and Evidentiary Hearing."
Andrew J. Vella, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
John C. Johnson, Smyrna, Delaware, pro se.
Richard R. Cooch, R.J.
This 17th day of January 2014, upon consideration of Defendant's motion for postconviction relief, it appears to the Court that:
1. On May 8, 2001, Defendant John C. Johnson ("Defendant") pled guilty to Murder Second Degree and Possession of a Firearm During the Commission of a Felony. Defendant was sentenced on July 12, 2001 to 20 years level 5, suspended after serving 17 years for 3 years level 4 for the Murder Second Degree conviction and 10 years level 5 for the Possession of a Firearm During the Commission of a Felony conviction.
2. Defendant filed his first pro se Motion for Postconviction Relief on May 9, 2008. This Court denied his motion,  a decision which was later affirmed by the Supreme Court.
3. Defendant filed this second Motion for Postconviction Relief based upon claims of ineffective assistance of trial counsel and an invalid plea/sentence. Defendant requested appointment of counsel, an evidentiary hearing, and for the Court to "vacate his sentence, invalidate his plea, and nullify the conviction in this case."
4. This Court DENIED Defendant's request for appointment of counsel in its Order of Briefing on April 22, 2013, but reserved decision on the Motion and whether to hold an evidentiary hearing until the conclusion of the briefing.
5. Defendant also filed a subsequent Motion for Reconsideration of Appointment of Counsel and Evidentiary Hearing, in which he argued, again, for the appointment of counsel because he was not represented in his first Rule 61 Motion. He also requested an evidentiary hearing "if for no other reason, in the interest [of] justice."
6. Defendant's first ineffective assistance argument contends that his counsel failed to properly represent him during plea negotiations. He claims counsel "failed to seek a decision on the Motion to Strike Death Penalty as Potential Sentence, prior to encouraging a plea." Defendant contends he would not have accepted the guilty plea if he knew the death penalty was not a consideration. Defendant similarly cites alleged procedural mistakes involving a Motion to Suppress. Defendant also claims that due to deficiencies in the plea negotiation process he was improperly sentenced as a habitual offender. He contends this is another factor that would have caused him to reject the plea.
7. Defendant's second set of ineffective assistance of counsel arguments relate to his sentencing. Defendant asserts his presentence report was neither shown to him nor discussed by counsel. Defendant also reiterates his habitual offender complaints and contends that he ...