Date Submitted: December 16. 2013.
Mr. Jerry Henry SBI #0020 Sussex Correctional Institution.
John Donahue, Esquire Christopher Hutchison, Esquire Department of Justice.
Alexander Funk, Esquire Curley & Benton.
Stephen Welsh, Esquire.
Dear Mr. Henry and Counsel:
On June 20, 2013, Mr. Henry filed a timely postconviction motion pursuant to Superior Court Criminal Rule 61 ("Rule 61").
Alexander Funk, Esquire was appointed to represent Mr. Henry ("Defendant"). Mr. Funk requested additional time to review, investigate, and amend the motion. This extension was granted. Subsequently on November 14, 2013, Mr. Funk filed a motion to withdraw pursuant to Rule 61 (e)(2). The Defendant was sent a copy of this Motion. By correspondence to Defendant on November 22, 2013, he was advised by the Court that his appointed attorney found no merit in his Rule 61 allegations and if he chose to file a response, it was to be received by the Court on or before December 16, 2013. Nothing has been received and therefore the matter is ripe for a decision.
On September 18, 2012, Defendant pled guilty to Drug Dealing; Aggravated Possession (Tier 5); Attempted Robbery in the First Degree; Possession of a Firearm during the Commission of a Felony; and Conspiracy. The Defendant acknowledged he was an habitual offender pursuant to 11 Del. C. § 4214(a). Defendant also acknowledged he was in violation of probation for Trafficking in Cocaine, Racketeering as well as lesser violations.
The negotiated sentence was found to be reasonable and appropriate and it was imposed. On the Drug Dealing charge, the sentence was fifteen (15) years Level 5 pursuant to 11 Del C. § 4214(a); on the Firearm charge the sentence was five (5) years Level 5; and on the Attempted Robbery charge, the sentence was twenty-five (25) years Level 5, suspended after five (5) years for probation. On the remaining charges and the violations of probation, the Defendant received either a suspended sentence or the Violation of Probation was discharged.
DEFENDANT'S RULE 61 ALLEGATIONS
The Defendant complains that his attorney was ineffective. He complains his attorney (i) consorted with the Prosecutor in threatening that he faced a potential life sentence if convicted at trial, (ii) did not conduct an adequate investigation, and (iii) generally scared him into pleading guilty because of the downside potential of going to trial.
The Defendant complains that the prosecutor threatened him with the potential downside consequence of going to trial because of the potential habitual offender status. If convicted at trial, and the habitual offender status was applied to the ...