IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
STATE OF DELAWARE, )
)
Plaintiff, )
)
)
v. ) Cr. ID. Nos. 1212019156,
) 1212003272
)
)
ROBERT ALLEY, )
)
Defendant. )
Submitted: August 3, 2015
Decided: November 16, 2015
(corrected November 17, 2015)
COMMISSIONER’S REPORT AND RECOMMENDATION ON
DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
Sonia Augusty, Esquire, Delaware Department of Justice, 820 N. French St. 7th Floor, Criminal
Division, Wilmington, Delaware, 19801, Attorney for the State.
Robert Alley, pro se.
John A. Barber, Esquire, Law Office of John A. Barber, 1232 North King Street, Suite 300,
Wilmington, DE, 19801, Attorney for Defendant.
MANNING, Commissioner
(1) This 16th day of November, 2015, upon consideration of defendant Robert Alley’s
motion for postconviction relief (“Motion”), I find the following:
(2) On August 28, 2014, Alley pled guilty to one count of Robbery Second Degree and
one count of Theft of a Motor vehicle in connection with the above captioned case numbers. A
pre-sentence investigation was order with sentencing at a later date. On December 1, 2014, as
contemplated by the express terms of the guilty plea agreement signed by Alley, the State filed a
motion to declare him a habitual offender pursuant to 11 Del. C. §4214(a). On December 18,
2014, Alley was declared a Habitual Offender by this Court and sentenced to eight and a half
years at Level V as to the robbery charge, and various levels of probation as to the theft charge.
(3) Alley’s convictions in this case were subsequently affirmed on direct appeal by the
Delaware Supreme Court on July 24, 2015. 1
(4) Alley then timely filed his first pro se motion for postconviction relief in this case on
August 3, 2015.
(5) Pursuant to Superior Court Rule 132, Alley’s Motion was referred to the undersigned
Commissioner on September 8, 2015. Following a review of Alley’s Motion I order a transcript
of the December 18, 2014 sentencing hearing before President Judge Jurden. 2 Based upon my
review of Alley’s Motion I did not see the need for an evidentiary hearing, an affidavit from
defense counsel, or a response from the State.
1
See Robert Alley v. State, 2015 WL 4511348 (Del. July, 24, 2015).
2
Due to an administrative oversight, I was not made aware that the necessary transcript had been completed until
November 12, 2015.
1
(6) Alley’s claims for postconviction relief, in his own words, are as follows:
Ground One: Ineffective assistance of Counsel (see attached). Cronic violation
prejudice presumed.
Ground Two: Procedural error in holding status (Title 11 § 4214(a)) and
sentencing matters at the same time which resulted in prejudice to defendant (see
attached).
Ground Three: Unfulfilled plea agreement. Per plea agreement, defendant could
challenge Title 11 § 4214(a) petition at sentencing. (P.O. Beth Savitz can verify)
(7) To prevail on an ineffective assistance of counsel claim, a defendant must meet the
two-pronged Strickland test by showing that: (1) counsel performed at a level “below an
objective standard of reasonableness” and that, (2) the deficient performance prejudiced the
defense. 3 The first prong requires the defendant to show by a preponderance of the evidence that
defense counsel was not reasonably competent, while the second prong requires the defendant to
show that there is a reasonable probability that, but for defense counsel’s unprofessional errors,
the outcome of the proceedings would have been different. 4
(8) When a court examines a claim of ineffective assistance of counsel, it may address
either prong first; where one prong is not met, the claim may be rejected without contemplating
the other prong. 5 Mere allegations of ineffectiveness will not suffice; instead, a defendant must
make and substantiate concrete allegations of actual prejudice. 6 An error by defense counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of conviction if
the error had no effect on the judgment. 7
3
Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
4
Id.
5
Id. at 697.
6
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
7
Strickland, 466 U.S.at 691.
2
(9) In considering post-trial attacks on counsel, Strickland cautions that trial counsel’s
performance should be reviewed from his or her perspective at the time decisions were being
made. 8 A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting efforts of hindsight. Second guessing or “Monday morning quarterbacking”
should be avoided. 9
(10) The procedural requirements of Superior Court Criminal Rule 61 must be addressed
before considering the merits of any argument. 10 Alley’s Motion was timely filed, is not
repetitive, and is therefore not procedurally barred under Superior Court Criminal Rule 61(i)(1)
or (2). I will address any issues regarding procedural default under Rule 61(i)(3) and (4) in
conjunction with Alley’s specific claims below.
(11) At the outset, I reviewed the Guilty Plea Form, the Truth-in-Sentencing form and
the transcript from the entry of Alley’s guilty plea before Judge Wallace—I found no anomalies.
My review of the file indicates that all forms were fully and accurately completed. The guilty
plea colloquy was through and covered all necessary aspects of the waiver of Alley’s rights and
the penalties he faced at sentencing. In short, I have no doubt that Alley’s guilty plea was made
knowingly, voluntarily and intelligently.
(12) Before directly addressing Alley’s complaints, some procedural and background
explanation is necessary. The genesis of Alley’s main complaint results from a guilty plea he
entered into in 2008. 11 At that time, Alley pled guilty to a felony charge which was subsequently
used as a predicate offense for the habitual offender motion filed by the State in this case, in
8
Id.
9
Id.
10
See Younger, 580 A.2d at 554.
11
Crim. ID No. 0707012162.
3
2014. 12 As part of the 2008 plea agreement, according to Alley at least, the State agreed to not
file a motion to declare him a habitual offender in exchange for his plea. Accordingly, Alley
pled guilty in 2008 to Felony Resisting Arrest.
(13) On March 22, 2013, subsequent to his arrest on this case, Alley filed a pro se motion
for postconviction relief. In short, Alley sought to undo his 2008 guilty plea so as to avoid the
possibility of being declared a habitual offender in the present robbery case. Alley claimed that
his 2008 defense counsel, Kathryn van Amerongen, incorrectly advised him that he was eligible
for habitual offender status, when he in fact was not. Alley felt he had received ineffective
assistance of counsel and was bluffed into pleading guilty by the State. Ultimately, John Barber
was appointed by the Court to represent Alley on the Rule 61 postconviction motion before
Judge Rocanelli. Mr. Barber, perhaps by design—but it is not clear to me, was appointed to
represent Alley because he also represented Alley, due to a conflict with the Public Defender’s
Office, in the pending 2013 case. Thus, Mr. Barber was well aware of Alley’s complaints and
concerns regarding his eligibility for sentencing as a habitual offender in this case.
(14) On February 14, 2014, Judge Rocanelli denied Alley’s motion for postconviction
relief. 13 On November 20, 2014, the Delaware Supreme Court affirmed Judge Rocanelli’s
ruling. 14 Despite what Alley would like to believe, the validity of the 2008 conviction for Felony
Resisting Arrest now stands beyond question.
(15) In the memorandum supporting Alley’s postconviction motion, he stated that
“counsel was so deficient at sentencing that it amounted to a complete denial counsel.” Alley
also stated that “counsel also failed to hold the State to our plea agreement (right to challenge the
habitual petition) he also disregarded defendant’s wishes to challenge habitual sentencing and
12
Crim. ID # 1212019156, docket # 89.
13
See State v. Alley, 2014 WL 605440 (Del. Super. Feb. 14, 2014).
14
See Alley v. State, 2014 WL 7009961 (Del. Nov. 20, 2014).
4
failed to mention any mitigating factors . . . .” Finally, Alley added that “counsel was also
ineffective on direct appeal for not pursuing valid claims . . . .” 15
(16) Based on Alley’s attached memorandum, and his use of the term “Cronic” (although
he does not cite the case itself) it appears he is arguing that his lawyer’s representation was so
utterly deficient as to constitute a complete denial of the right to counsel vis-à-vis the United
State Supreme Court opinion in United States v. Cronic. 16 Under the Cronic standard, prejudice
in the context of ineffective assistance of counsel is presumed in three circumstances: (1) if there
is a complete denial of counsel; or (2) if counsel entirely fails to subject the prosecution's case to
meaningful adversarial testing; or (3) if counsel is asked to provide assistance in circumstances
where competent counsel likely could not. 17
(17) Setting aside the fact that Alley’s claims are largely conclusory in nature, I see no
structural defect in the proceedings as required under Cronic nor prejudice under the Strickland
standard. As previously noted, Alley’s guilty plea was knowingly, intelligently and voluntarily
entered and he is bound by the statements he made when he entered the plea. Additionally, at the
time Alley chose to plead guilty in this case, his postconviction motion to overturn his 2008
conviction had already been denied by Judge Rocanelli. Furthermore, by the time of his
sentencing in December of 2014, the Delaware Supreme Court had affirmed Judge Rocanelli’s
ruling. Therefore, when Alley’s counsel stated that “we have no good faith basis to oppose [the
habitual offender motion] at this time,” 18 it was not for lack of effort. With Mr. Barber’s
assistance, Alley had argued and appealed the issue all the way to the Delaware Supreme
Court— there was simply nothing more his lawyer could have done. Alley’s statement that his
15
Petitioner’s Motion, D.I. 112.
16
466 U.S. 648 (1984).
17
See Sahin v. State, 72 A.3d 111, 114 (Del. 2013).
18
December 19, 2014, Sent. Trans. at 4.
5
counsel “failed to subject the prosecutions [sic] habitual petition to a meaningful adversarial
testing” could not be further from the truth. Finally, because this issue was formerly adjudicated,
it is procedurally barred from further consideration by Rule 61(i)(4). 19
(18) Alley next claims that his counsel was ineffective for not holding the State to the
plea agreement and not presenting any mitigating factors for the court to consider. My review of
the documents and transcripts indicates otherwise. The guilty plea agreement clearly indicates
that the State would cap its Level V recommendation at no more than 10 years. At sentencing,
the State asked the Court to impose 10 years—consistent with its agreement. As for mitigation,
defense counsel did discuss with the Court Alleys’ very difficult childhood and other mitigating
factor. 20 However, to a certain extent, a lengthy presentation by defense counsel was not
necessary as the Court was very well aware of Alley’s difficult childhood based on letters it had
received, and in fact, raised the issue preemptively with the parties. 21 In the end, the Court
sentenced Alley to less than what the State asked for, making it difficult for me to see how he
was prejudiced in any way.
(19) Next, Alley claims that defense counsel “was also ineffective on direct appeal for
not pursuing valid claims, unfulfilled plea agreement, due process viol [sic], no 4215(b) hearing
or Bailey viol, as habitual/sentence conducted as one single hearing.” Alley provides no
additional detail or argument to support his claims other than what is stated in the preceding
sentence. Alley’s claims are nothing more than conclusory statements and should not be
considered by the Court. 22 Furthermore, Alley’s argument that he should not be sentenced at the
19
Rule 61(i)(4) Former adjudication. -- Any ground for relief that was formerly adjudicated, whether in the
proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal
habeas corpus proceeding, is thereafter barred.
20
December 19, 2014, Sent. Trans. at 10.
21
Id. at 8.
22
Conclusory allegations are insufficient to establish a claim of ineffective assistance of counsel. See Younger v.
State, 580 A.2d 552, 555 (Del. 1990).
6
same time (and presumably by the same judge) he is declared a habitual offender is without
merit. I can only assume that Alley is arguing that this procedure is somehow prejudicial. In
reality, however, it makes no difference because the judge who ultimately imposes sentence
would still be aware of Alley’s criminal history, habitual offender status, and would have a copy
of the habitual offender petition in the Court’s file.
(20) Next, Alley claims that the motion to declare him a habitual offender was granted so
quickly it did not give him a chance to speak. Alley states that “if I was giving the chance to
speak in the habitual hearing I could have addressed my issues and then moved on to my conduct
in the sentencing phase without fear of confusing the two [issues] . . . .” It is unfortunate that
Alley continues to fail to grasp that by the time of his sentencing in December of 2014 his status
as a habitual offender was unassailable. President Judge Jurden reviewed the motion and made
findings of fact, on the record, prior to granting it. Based on the specific language of 11 Del. C.
4214(a), the Court simply had no discretion to deny the motion in any event. The fact that Alley
did not argue against the motion, but actually focused his comments to the Court on taking
responsibility for his crimes, appears to have earned him a lighter sentence in the end. 23
(21) Finally, I note that Alley’s claims are so lacking in merit that the Court could
summarily dismiss them under Rule 61(d)(5).
For the foregoing reasons, Alley’s Motion should be DENIED.
IT IS SO RECOMMENDED.
/s/ Bradley V. Manning
BRADLEY V. MANNING,
Commissioner
oc: Prothonotary
cc: Defendant
23
December 19, 2014, Sent. Trans. at 12.
7