Submitted: November 13, 2013
Honorable Andrea L. Rocanelli
On September 17, 2007, Robert Alley was indicted for Felony Resisting Arrest, Disregarding a Police Officer's Signal, and Criminal Impersonation. Assistant Public Defender Kathryn Van Amerongen represented Mr. Alley with respect to these charges. The State offered Alley a plea, which included a request for a pre-sentence investigation and notification that the State intended to seek habitual offender sentencing pursuant to 11 Del. C. § 4214(a). Alley rejected this plea offer. The State made a subsequent plea offer in which it would not seek habitual offender sentencing. After consulting with Ms. Van Amerongen, Alley accepted the plea and, on December 22, 2008, he pled guilty to Felony Resisting Arrest and Criminal Impersonation.
At the heart of this Motion for Postconviction Relief is Alley's most recent encounter with the criminal justice system. In March 2013, Alley was charged in a new criminal case in which the State contends that Alley committed two counts of First Degree Robbery, as well as Wearing a Disguise During the Commission of a Felony. These charges are unrelated to the charges to which Alley pled guilty in 2008. In preparation for his upcoming case, it was determined that Alley would not have been subject to habitual offender sentencing in 2008 because his criminal history involved multiple overlapping convictions. However, because he was convicted of a felony offense in 2008, Alley is now subject to habitual offender sentencing in his pending case.
On March 22, 2013, Alley filed a Motion for Postconviction Relief as a self-represented litigant, alleging that Ms. Van Amerongen, his trial counsel in 2008, provided ineffective service of counsel by mistakenly informing him that he would have been subject to habitual offender sentencing under 11 Del. C. § 4214(a) if convicted at trial. On May 6, 2013, an amendment to Rule 61(e)(1) of the Delaware Superior Court Rules of Criminal Procedure became effective; requiring the appointment of counsel for an indigent movant's first postconviction proceeding.
On May 16, 2013, John A. Barber, Esquire was appointed to represent Alley. On August 15, 2013, Ms. Van Amerongen submitted an affidavit denying Alley's claims of ineffective assistance of counsel. On November 1, 2013, the State submitted its response to the pending motion. The State suggested that not only is Alley's motion procedurally barred, but it also fails on the merits and should be denied without further proceedings. On November 12, 2013, Alley filed a reply to the State's response.
Before considering the merits of a motion for postconviction relief, the Court must determine whether the motion overcomes the procedural bars of Rule 61(i). Rule 61(i)(1) requires that a Motion for Postconviction Relief be filed within one year of the final judgment. Alley entered his guilty plea on December 22, 2008 and did not file his motion until March 22, 2013, well beyond the one-year time limitation.
Nevertheless, the time limitations set forth in the Court's Rules may be overcome. For example, if the motion provides a colorable claim that there has been a "miscarriage of justice" as the result of a constitutional violation that undermined the fundamental fairness of the proceedings leading to the final judgment, then the time limitations do not act as a procedural bar. Alley's motion is based on a claim of ineffective assistance of counsel, an alleged constitutional violation. Accordingly, Alley can overcome the procedural time bar of Rule 61 if his allegations of ineffective assistance of counsel meet the two-prong test established in Strickland v. Washington.
To succeed on a claim of ineffective assistance of counsel the movant must show that (1) trial counsel's representation fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. The movant must overcome the strong presumption that counsel's conduct was professionally reasonable. Failure to prove either prong renders the claim insufficient. Moreover, to avoid summary dismissal, the movant must provide concrete allegations of prejudice, including specifying the nature of the prejudice and the adverse affects actually suffered.
The grounds of Alley's ineffective counsel claim are (1) his trial counsel erroneously advised him that he was subject to habitual offender sentencing during the 2008 proceedings, when such habitual status was then inapplicable and (2) but for her advice, there is a reasonable probability he would have pled not guilty and instead would have insisted on a trial. Now, by virtue of his guilty plea in 2008, he is subject to habitual offender status in his pending case.
Alley first asserts that Ms. Van Amerongen's representation fell below an objective standard of reasonableness because she incorrectly advised Alley that he was eligible for sentencing as a habitual offender in 2008. According to Alley, Ms. Van Amerongen advised him that if he did not accept the plea offer, the State would seek habitual offender sentencing which would subject him to a sentence of life imprisonment, if convicted. In support for this contention, Alley relies on the following exchange during his plea colloquy and sentencing:
THE COURT: The court finds the guilty pleas are knowingly, intelligently, and voluntarily offered and they will be accepted. We will proceed to immediate sentencing.
MS. VAN AMERONGEN: Thank you, Your Honor. If I may, the original plea agreement had been to a PSI. And the reason for that is, as Your Honor can probably see from his [the defendant's] criminal history, is that he would have qualified as a habitual offender.
Alley argues that Ms. Van Amerongen's statements to the Court are evidence of her legal conclusion that Alley was eligible ...