Date Submitted: May 14, 2014.
James A. Robb, Esq.
Matthew B. Frawley, Esq., Deputy Attorney General, Delaware Department of Justice, Carvel State Office Building, Attorney for the State.
Calvin L. Scott, Jr., Judge.
Before the Court is Defendant Jerome Clark's ("Defendant") Motion for Post-conviction Relief filed on October 1, 2013. The Court has reviewed the parties' submissions. For the following reasons, Defendant's motion for post-conviction relief is DENIED. However, pursuant to Del. Super. Crim. Rule 35(a), Defendant's request to correct his sentence for the charge for Criminal Mischief under $1, 000 is GRANTED.
On May 29, 2013, the day of trial, Defendant pled guilty to the charges of Burglary in the Third Degree and Criminal Mischief under $1, 000. As part of the Plea Agreement, the State sought a declaration that Defendant be declared a Habitual Offender under 11 Del. C.§ 4214(a). The State recommended restitution and agreed to deferred sentencing and to cap its Level V recommendation at two years, followed by 8 months at Level IV, then two years at Level III. Defendant signed the Plea Agreement and the Truth-and-Sentencing Guilty Plea Form.
Prior entering his plea, the Court gave Defendant an opportunity to discuss the terms of the State's offer with his trial counsel, Raymond Otlowski, Esquire ("Mr. Otlowski"). Mr. Otlowski informed the Court that he believed that Defendant understood the consequences of entering the plea. The Court then engaged in a plea colloquy with Defendant. Defendant confirmed that he reviewed, signed and understood the plea agreement and the Truth-in-Sentencing Guilty Plea Form. He also acknowledged that the penalty could range from zero to life, that he qualified as a habitual offender under § 4214(a), and that his plea was voluntary.
August 23, 2013, the day of Defendant's sentencing,  Defendant requested that the Court allow him to withdraw his plea because he was very stressed when he entered into the agreement. The Court denied the request because it found that it "lacked good faith basis to allow" it. Defendant was then sentenced to two years at Level V without the benefit of early release "pursuant to 11 Del. C. § 4204(k)" for the burglary charge and 6 months at Level V, suspended for one year at Level III for the charge of Criminal Mischief under $1, 000. Defendant was declared a habitual offender under §4214(a) and required to pay restitution.
On October 1, 2013, Defendant filed this Motion for Post-conviction Relief based on three grounds. First, Defendant argues that his plea should be withdrawn because he was stressed when he decided to enter the plea agreement. Second, Defendant asserts a claim for ineffective assistance of counsel, alleging that Mr. Otlowski informed him that there was no mandatory sentence despite the fact that "Defendant has a 4204(k) sentence therefore making it mandatory." Third, Defendant argues that his sentence for Criminal Mischief under $1, 000 is incorrect and that it must be limited to 30 days at Level V. Defendant was appointed counsel to assist him with this motion and, on January 24, 2014, his appointed counsel filed an Amended Motion for Post-conviction Relief. Defendant's appointed counsel reasserted Defendant's argument that he was unaware of the sentencing consequences of being declared a habitual offender.
Mr. Otlowski has filed an affidavit in response to Defendant's motion. According to Mr. Otlowski, he "had at least fifteen visits and/or discussions with [Defendant] concerning evidence, preparation for trial, possibility of a plea and the severity of the sentence-life in prison." He explained that "[t]he initial plea offer was five years at level five, some level four time and level three time with a flow down." Mr. Otlowski believed it would be in Defendant's best interest to negotiate a lower plea since Defendant was unable to locate his witness. On the day of trial, Mr. Otlowski negotiated the plea from five years to two years. He informed Defendant that his sentence "would be served to the day in jail" and he believed that Defendant understood his explanation.
The State argues that the record fails to support Defendant's claim for ineffective assistance of counsel. According to the State, Defendant fully understood his sentence and accepted the plea on his own accord after having the opportunity to speak with Mr. Otlowski about the terms of the plea and reviewing and signing the Truth-in-Sentencing Form and the Plea Agreement. In addition, the State asserts that Defendant had ample opportunity to object to the terms of the ...