IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHARLES COLBURN, §
§
Defendant Below, § No. 327, 2016
Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
STATE OF DELAWARE, § Cr. ID No. 1411002179
§
Plaintiff Below, §
Appellee. §
Submitted: August 17, 2016
Decided: October 5, 2016
Before HOLLAND, VALIHURA, and VAUGHN, Justices.
ORDER
This 5th day of October 2016, upon consideration of the appellant’s opening
brief, the motion to affirm, and the record below, it appears to the Court that:
(1) The appellant, Charles Colburn, filed this appeal from a Superior
Court order denying his first motion for postconviction relief under Superior Court
Criminal Rule 61. The State of Delaware has filed a motion to affirm the judgment
below on the ground that it is manifest on the face of Colburn’s opening brief that
his appeal is without merit. We agree and affirm.
(2) The record reflects that Colburn was arrested on multiple charges
arising from the discovery of almost 1,500 bags of heroin and multiple firearms in
his car. On January 7, 2015, Colburn waived indictment and pled guilty to Drug
Dealing (Tier IV), Possession of a Firearm During the Commission of a Felony
(“PFDCF”), and Possession of a Firearm by a Person Prohibited (“PFBPP”). In the
plea agreement, the parties agreed to recommend a sentence with non-suspended
Level V time of nine years and the State agreed not to seek habitual offender
sentencing under 11 Del. C. § 4214(a). Colburn was sentenced as follows: (i) for
Drug Dealing (Tier IV), twenty-five years of Level V incarceration, suspended
after two years for twenty-three years of Level IV (Department of Correction
Discretion), suspended after one year for eighteen months of Level III probation;
(ii) for PFDCF, five years of Level V incarceration; and (iii) for PFBPP, two years
of Level V incarceration. Colburn did not appeal the Superior Court’s judgment.
(3) On March 30, 2015, Colburn filed a motion for reduction of sentence,
which the Superior Court denied. On February 5, 2016, Colburn filed a motion for
postconviction relief under Rule 61. Colburn argued that his counsel was
ineffective because she incorrectly informed him that he was ineligible for
concurrent sentences and she failed to argue at his sentencing that he was eligible
for concurrent sentences. After the matter was referred to a Superior Court
Commissioner and Colburn’s former counsel provided an affidavit, the
Commissioner recommended denial of Colburn’s motion for postconviction relief.1
1
State v. Colburn, 2016 WL 1756503 (Del. Super. Ct. Apr. 28, 2016).
2
The Superior Court accepted the Commissioner’s recommendation and denied
Colburn’s motion for postconviction relief.2 This appeal followed.
(4) In his opening brief, Colburn argues that the Superior Court erred in
denying his motion for postconviction relief because he would not have pled guilty
if his counsel had correctly informed him that he was eligible for concurrent
sentencing on his PFBPP conviction. Colburn also claims that he did not have the
opportunity to file objections to the Commissioner’s report and recommendation
because he did not receive the report. This Court reviews the Superior Court’s
denial of postconviction relief for abuse of discretion and questions of law de
novo.3 The procedural bars of Rule 61 do not apply to Colburn’s timely claim of
ineffective assistance of counsel.
(5) To prevail on a claim of ineffective assistance of counsel after entry of
a guilty plea, Colburn must demonstrate that his counsel’s representation fell
below an objective standard of reasonableness and there is a reasonable probability
that but for counsel’s errors, he would not have pled guilty and would have insisted
on proceeding to trial.4 Although not insurmountable, there is a strong
presumption that counsel’s representation was professionally reasonable.5 A
defendant asserting a claim of ineffective assistance must make concrete
2
State v. Colburn, 2016 WL 3248222 (Del. June 1, 2016).
3
Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).
4
Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (Del. 1988).
5
Albury, 551 A.2d at 59.
3
allegations of cause and actual prejudice to substantiate a claim of ineffective
assistance of counsel.6
(6) As of July 9, 2014, judges have the discretion to impose concurrent,
rather than consecutive, sentences.7 Certain crimes, including PFDCF, are not
eligible for concurrent sentences.8 A defendant convicted of PFBPP is not eligible
for a concurrent sentence if the defendant was previously convicted of a Title 11
violent felony.9 A Title 11 violent felony is defined as a “Title 11 offense
identified in § 4201(c) of this title, or any offense set forth under the laws of the
United States, any other state or any territory of the United States which is the
same as or equivalent to any of the offenses designated as a Title 11 offense
identified in § 4201(c) of this title.”10 Relying on the listing of his 2009 conviction
for Felon in Possession of a Firearm in the United States District Court for the
District of Delaware as a Title 11 non-violent felony in his plea agreement,
Colburn argues that this previous conviction was not a Title 11 violent felony and
therefore he could receive concurrent sentences for his PFBPP conviction (as well
as his Drug Dealing conviction).
6
Younger v. State, 580 A.2d 552, 556 (Del. 1990).
7
11 Del. C. § 3901(d); Fountain v. State, 139 A.3d 837 (Del. 2016).
8
11 Del. C. § 3901(d).
9
Id.
10
11 Del. C. § 3901(e).
4
(7) Even assuming Colburn were eligible for concurrent sentencing on
his PFBPP conviction, he has not shown a reasonable probability that if he had
known he was eligible he would not have pled guilty and would have insisted on
proceeding to trial. By pleading guilty, Colburn obtained the benefit of the State
agreeing not to seek habitual offender sentencing under 11 Del. C. § 4214(a),
which Colburn was eligible for, and the State agreeing to recommend non-
suspended Level V time of nine years. If Colburn had insisted on going to trial, he
faced the risk of life imprisonment as a habitual offender.
(8) In addition, Colburn ignores that even if he were eligible for
concurrent sentencing, it was within the Superior Court judge’s discretion to
impose concurrent or consecutive sentences for his crimes.11 Colburn does not
point to anything in the record to suggest the Superior Court judge would have
imposed a concurrent, rather than consecutive, sentence. The sentencing transcript
reflects that the Superior Court judge was concerned by the serious nature of
Colburn’s crimes and his eligibility for habitual offender status. The notion that
Colburn would have insisted on proceeding to trial and facing the risk of life
imprisonment if he had known the Superior Court judge had the discretion to
impose concurrent sentences for two of his crimes is not supported by the record or
credible.
11
Fountain v. State, 139 A.3d at 840-41 (describing amendment of § 3901(d) to give judges
discretion to impose concurrent or consecutive sentences).
5
(9) Colburn’s Truth-in-Sentencing Guilty Plea Form and guilty plea
colloquy contradict his contention that he was coerced into pleading guilty. In the
Truth-in-Sentencing Guilty Plea Form, Colburn indicated that he freely and
voluntarily decided to plead guilty, no one, including his counsel and the State,
forced him to plead guilty, and he understood he was waiving certain constitutional
rights. During the guilty plea colloquy, Colburn stated that he was guilty of Drug
Dealing, PFDCF, and PFBPP, he understood the Superior Court was not bound by
the sentencing recommendation, and he was satisfied with his counsel’s
representation. Absent clear and convincing evidence to the contrary, which he
has not identified, Colburn is bound by his representations during the guilty plea
colloquy and in the Truth-in-Sentencing Guilty Plea Form.12
(10) As set forth above, Colburn has not satisfied the standard for an
ineffective assistance of counsel claim. The Superior Court did not err therefore in
denying Colburn’s motion for postconviction relief. As to Colburn’s contention
that he did not have the opportunity to file objections to the Commissioner’s report
and recommendations because he did not receive the report, we have considered
his arguments on appeal regarding the merits of the Superior Court’s decision and
concluded that those arguments are without merit.
12
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
6
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Karen L. Valihura
Justice
7
Colburn v. State
Combined Opinion