Submitted October 1, 2014
Case Closed December 11, 2014.
This decision has been designated as "Table of Decisions Without Published Opinions." in the Atlantic Reporter.
Court Below--Superior Court of the State of Delaware, in and for New Castle County. Cr. ID No. 1201019507.
Before HOLLAND, RIDGELY, and VALIHURA, Justices.
Randy J. Holland, Justice
This 25th day of November 2014, upon consideration of the appellant's Supreme Court Rule 26(c) brief, his attorney's motion to withdraw, the State's response, supplemental submissions of the parties, and the record below, it appears to the Court that:
(1) In February 2012, the appellant, Carlos Vazquez, was indicted on charges of Drug Dealing, two counts of Conspiracy in the Second Degree, Possession of a Firearm During Commission of a Felony (" PFDCF" ), Aggravated Possession, and two counts of Possession of a Firearm by a Person Prohibited (" PFBPP" ).
(2) On May 2, 2012, Vazquez pled guilty to Drug Dealing and PFBPP. The State agreed to recommend no more than eight years of Level V incarceration at sentencing and to dismiss the remaining charges. When the Superior Court read Count VI of the indictment (the count number listed in the Plea Agreement) and asked Vazquez if he understood that charge (PFBPP based upon Vazquez's possession of heroin), his counsel and the prosecutor interrupted to state that the charge did not sound correct. The prosecutor stated that Count VIII was the correct count (PFBPP based upon Vazquez's 2005 conviction for PFDCF). The Superior Court then read Count VIII of the indictment to Vazquez, who indicated that he understood the charge and committed the offense of possessing a firearm after having been convicted of PFDCF in 2005. In supplemental submissions requested by this Court, the State and Vazquez's counsel agree that Vazquez pled guilty to Count VIII of the indictment.
(3) At Vazquez's sentencing hearing on July 27, 2012, the State indicated that although the intent had been for Vazquez to plead guilty to Count VIII of the indictment (a Class D felony under 11 Del. C. 1448(c) subject to a Level V sentence of three to eight years), it would not challenge the investigative services report finding that Vazquez had pled guilty to Count VI (a Class F felony under 11 Del. C. 1448(c) subject to a Level V sentence of up to three years). The State continued to recommend that Vazquez be sentenced to eight years of Level V incarceration. The Superior Court sentenced Vazquez to twenty years of Level V incarceration, suspended after six years for decreasing levels of supervision, on the Drug Dealing charge and three years of Level V incarceration, suspended after two years for one year of Level III supervision, on the PFBPP charge. Vazquez was also sentenced to three years of Level V incarceration for a violation of probation. Vazquez did not file a direct appeal.
(4) On August 15, 2013, Vazquez filed a pro se motion for postconviction relief. Vazquez claimed that he was coerced into pleading guilty because his counsel failed to investigate his criminal history and incorrectly informed him that he could be found a habitual offender and sentenced to life imprisonment. After the filing of the motion, counsel was appointed to represent Vazquez and Vazquez's former counsel submitted an affidavit responding to Vazquez's claims. The State also responded to Vazquez's motion. According to Vazquez's former counsel, he investigated Vazquez's criminal history, determined Vazquez would not be eligible for sentencing as a habitual offender, convinced the State that Vazquez would not be eligible for sentencing as a habitual offender, and informed Vazquez that he faced a substantial sentence even though he was not eligible for sentencing as a habitual offender.
(5) On May 22, 2014, the Superior Court denied Vazquez's motion for postconviction relief. The Superior Court concluded that Vazquez's ineffective assistance of counsel claim was contrary to the record and without merit. This appeal followed.
(6) Vazquez's postconviction counsel (" Counsel" ) has filed a no-merit brief and motion to withdraw under Supreme Court Rule 26(c) on the ground that that the appeal is without merit. Counsel has identified errors relating to the statutory penalties, minimum mandatory penalties, and Truth-in-Sentencing (" TIS" ) guidelines that appeared in the TIS Guilty Plea Form. By letter, counsel informed Vazquez of the provisions of Rule ...