DATE SUBMITTED: February 25, 2015
John W. Donahue, IV, Esquire
James P. Murray, Esquire
Dear Mr. Windsor:
Pending before the Court is the motion of William T. Windsor ("defendant") for postconviction relief pursuant to Superior Court Rule 61 ("Rule 61"). The applicable version of Rule 61 is that enacted on June 4, 2014. This is the Court's decision summarily denying the motion. Because defendant does not set forth a substantial claim that defendant received ineffective assistance of counsel in relation to his pleas of guilty and nolo contendere and because no other specific exceptional circumstance(s) exist warranting the appointment of counsel,  I deny defendant's request for the appointment of counsel. Because the motion is summarily dismissed, no need exists either to have trial counsel submit an affidavit or to have the State of Delaware ("the State") respond.
On or about December 15, 2012, defendant was arrested on 151 counts stemming from sex offenses against the two daughters of his girlfriend. He was indicted, on February 18, 2013, on 160 criminal counts: rape in the second degree (3 counts); continuous sexual abuse of a child (2 counts); sexual abuse of a child by a person in a position of trust in the first degree (10 counts); rape in the fourth degree (3 counts); sexual solicitation of a child (10 counts); sexual abuse of a child by a person of trust in the second degree (87 counts); unlawful sexual contact in the second degree (43 counts); and endangering the welfare of a child (2 counts).
Defendant, through trial counsel, moved for a bill of particulars, to sever the charges related to the two victims, and to suppress his statement to the police. The defense withdrew the motion for a bill of particulars. This Court granted the motion to sever. As to defendant's statement, the parties agreed that, in its case in chief, the State would not use defendant's statement after the one hour and twenty-five minute mark of the tape of the interview. The Court made further rulings regarding the statement. It ruled that defendant made a voluntary, knowing and intelligent waiver of his Miranda rights, and it further ruled that defendant's statements were not coerced.
Thereafter, the Court ordered the State to reduce the number of charges against defendant to avoid undue prejudice. On the morning of jury selection, the State presented two pared down indictments. In the first, there were 12 counts (from 151) as to Victim 1 and in the second, there were 8 counts (from 9) as to Victim 2. Later that day, defendant pled guilty to one count of rape in the second degree as to Victim 1 (ID# 1212009736A) and he pled nolo contendere to continuous sexual abuse of a child as to Victim 2 (Def. ID# 1212009736B).
As the Supreme Court explained in defendant's appeal, the following occurred regarding the plea:
Before accepting his plea, the Superior Court conducted a lengthy colloquy with Windsor. During the colloquy, Windsor stated under oath that: (i) he had freely and voluntarily decided to plead guilty to rape in the second degree and nolo contendere to continuous sexual abuse of a child; (ii) he had not been promised anything that was not stated in the written plea agreement; (iii) nobody had forced or threatened him to enter the plea; (iv) he understood that by entering the plea there would not be a trial and that he would be waiving several constitutional rights, including the right to be presumed innocent until the charges were proven beyond a reasonable doubt and the right to hear and question witnesses; and (v) he understood that he could receive a total maximum penalty of fifty years of incarceration.
Defendant was sentenced on December 13, 2013. During the sentencing proceedings, defendant asked the Court if he could withdraw his pleas pursuant to Superior Court Criminal Rule 32(d). Trial counsel did not file such a motion and explained he did not know defendant was going to make such a request. The Court refused to hear the motion because it was not made by way of his attorney, it was not filed with notice to the State, and the evidence of defendant's guilt was so overwhelming. The Court considered defendant's motion to be a delaying tactic.
The Court found aggravating factors existed and sentenced defendant as follows. As to the rape in the second degree conviction, he was sentenced to 25 years at Level 5, suspended after 20 years for decreasing levels of supervision. As to the continuous sexual abuse of a child conviction, he was sentenced to 25 years at Level 5, suspended after 2 years for probation.
Defendant appealed. The issues raised on appeal and the Supreme Court's resolution of those issues are examined below because defendant resubmits them in this Rule 61 motion.
Issue 1: The Superior Court erred by refusing to allow him to present the motion to withdraw his pleas.
The Supreme Court ruled that because trial counsel did not file the motion, defendant's motion "was a legal nullity." The Supreme Court further ruled:
That the Superior Court acted within its discretion is also reinforced by the extensive colloquy that the Superior Court had with Windsor before accepting his guilty plea. Although Windsor may have sought to withdraw his guilty plea based on a supposed promise that he would receive a twelve year sentence, the written plea agreement and plea colloquy were clear and to the contrary. The plea agreement, signed by Windsor, expressly stated that the maximum penalty for the offenses was fifty years incarceration. During the plea colloquy, Windsor stated the he understood each offense was punishable by two to twenty-five years of incarceration and that the maximum penalty he could receive was up to fifty years of incarceration, of which twelve years was a minimum-mandatory sentence.
Issue 2: "[T]he sentence was outside statutory guidelines, resulted from judicial bias and prejudice, exceeded the parties' 'outside oral agreement, and constituted cruel and unusual punishment under the Eighth Amendment".
The Supreme Court concluded these challenges were without merit. Defendant's sentence was within statutory limits. Delaware Sentencing Accountability Commission ("SENTAC") Guidelines are voluntary and non-binding. A defendant has no right to appeal a sentence on the ground it does not comply with SENTAC Guidelines.
The Supreme Court further concluded:
As far as Windsor's claim that the Superior Court demonstrated bias and prejudice by referring to his physical size compared to the victims [sic] and his use of economic pressure on the victims and their mother, Windsor does not contend that either of those statements was false or based on false information. And each was a case-specific factor that rationally bore on the sentence Windsor should receive. The Superior Court imposed the sentence after receiving the presentence investigation as well as materials submitted by Windsor's relatives, reviewing the record, and hearing statements from Windsor's counsel, Windsor's family members, Windsor, the State and the victims. The record reflects that the sentence was based on the nature of Windsor's crimes and does not support Windsor's claims of bias and prejudice.
The Supreme Court also ruled that the plea agreement and colloquy contradict defendant's contention that the sentence exceeded an outside oral agreement of a twelve year sentence.
Finally, the Supreme Court concluded that defendant's Eighth Amendment challenge failed because the sentence was within statutory limits and defendant did not offer any evidence suggesting the sentence was grossly disproportionate to the crime.
Issue 3: His right to confrontation was violated and he was deprived of due process by the Court's limiting his trial to three days.
The Supreme Court ruled as follows. There was no plain error on this issue. Defendant did not show how his right to confront witnesses was violated and nothing in the record establishes such. Furthermore, he failed to explain why his case could not be tried in three days or show how he could not have presented an effective defense in that amount of time.
Issue 4: There was prosecutorial misconduct. The Supreme Court sets forth defendant's argument as follows:
... Windsor seems to claim that the prosecution engaged in misconduct by improperly consolidating the indictment to bring the cases involving Victim1 and Victim 2 together, bringing multiple and duplicative charges, and coercing him into pleading guilty by seeking to rejoin the cases against Victim1 and Victim 2. 
The Supreme Court concluded defendant had the opportunity to, and did, challenge the attempted consolidation of the charges and did not show that the charges were unlawfully duplicative. The Supreme Court further ruled:
Windsor also repackages his claim by arguing that the rejoinder coerced him into pleading guilty. This claim is entirely without merit. Windsor stated under oath at his plea colloquy that no one had threatened or forced him to plead guilty and that he freely and voluntarily pled guilty to rape second degree and nolo contendere to continuous sexual abuse of a child. Absent clear and convincing evidence to the contrary, Windsor is bound by these statements. A claim of coercion in the plea bargaining process can only be substantiated if the State threatens to take action or takes action that is not legally authorized. Windsor fails to explain why it was improper at all, much less coercive, for the State to move to rejoin the Victim 1 and Victim 2 cases after reducing the number of charges involving each of the victims as urged by the Superior Court. In any ...