      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY




STATE OF DELAWARE                      )
                                       )
      v.                               )          Cr. ID No. 1210020252
                                       )
THEODORE JOHNSON,                      )
                                       )
            Defendant.                 )

                           Date Submitted: July 7, 2015
                         Date Decided: September 28, 2015

                Upon Defendant’s Motion for Postconviction Relief
                                  DENIED


                          MEMORANDUM OPINION




Scott D. Goodwin, Deputy Attorney General, Department of Justice, Attorney for
the State of Delaware.

Theopalis K. Gregory, Sr., Esquire, The Law Offices of Theopalis K. Gregory, Sr.,
Attorney for Defendant.

Rocanelli, J.
      Theodore Johnson (“Defendant”) was charged on February 18, 2013, with

Robbery First Degree, Wearing a Disguise during the Commission of a Felony,

Burglary Third Degree, Theft, and Criminal Mischief. On April 8, 2013, the State

offered Defendant a plea to Robbery Second Degree (lesser included offense of the

lead charge of Robbery First Degree) and Burglary Third Degree; and the State

agreed to recommend sentence of five (5) years at Level V, suspended after thirty

(30) months for decreasing levels of supervision (“Initial Plea Offer”). This Initial

Plea Offer was especially favorable because the lead charge of Robbery First

Degree, which the State would dismiss if Defendant accepted the Initial Plea Offer,

carried minimum mandatory time of five (5) years, and the lesser included offense

of Robbery Second Degree had no minimum mandatory time. Defendant did not

accept the Initial Plea Offer and it expired on May 1, 2013.

      Trial was scheduled to begin on September 24, 2013 and, on the day the case

was scheduled for trial, Defendant pled guilty to the lead charge, Robbery First

Degree.    In exchange for Defendant’s guilty plea, the State dismissed the

remaining charges. On December 12, 2013, Defendant was sentenced to twenty-

five (25) years at level V, suspended after six (6) years for decreasing levels of

supervision. The sentence of six (6) years of non-suspended time at Level 5 was

one (1) year in excess of the required minimum mandatory sentence.




                                         1
       Defendant filed a timely motion for postconviction relief (“Initial PCR

Motion”) on January 27, 2014 as a self-represented litigant. Under the most recent

version of Rule 61, Defendant would not have met the requirements for

appointment of counsel to represent him in his postconviction proceeding.1

However, based on his date of filing, Defendant benefitted from an earlier version

of Rule 61 which provided that “[t]he court will appoint counsel for an indigent

movant’s first postconviction proceeding.” 2             As a result, on April 23, 2014,

Theopolis K. Gregory (“Rule 61 Counsel”) was appointed to represent Defendant.

                                         Background

        Defendant was represented three different lawyers attorneys from the

inception of this case until he was sentenced.              First, Eugene Maurer, Esquire

entered his appearance on behalf of Defendant at Defendant’s arraignment. No

attorney-client agreement was reached for Mr. Maurer’s representation of

Defendant and Mr. Maurer was permitted to withdraw as counsel by Order dated

March 25, 2013. Second, after Mr. Maurer was permitted to withdraw, Raymond

Armstrong, Esquire was appointed to represent Defendant. Mr. Armstrong was

1
  See Super. Ct. Crim. R. 61(e)(2) (stating that the judge may only request appointment of
counsel for a defendant seeking to set aside a judgment resulting from a guilty plea if the judge
determines that “(i) the conviction has been affirmed by final order upon direct appellate review
or direct appellate review is unavailable; (ii) the motion sets forth a substantial claim that the
movant received ineffective assistance of counsel in relation to the plea of guilty or nolo
contendre; (iii) granting the motion would result in vacatur of the judgment of conviction for
which the movant is in custody; and (iv) specific exceptional circumstances warrant the
appointment of counsel.”).
2
  Super. Ct. Crim. R. 61(e)(2) (2013).
                                                2
counsel of record when the Initial Plea Offer was extended by the State. Finally,

Defendant retained John Malik, Esquire (“Plea Counsel”) whose charge from

Defendant was to obtain a more favorable plea offer.

      Defendant’s first meeting with Plea Counsel was on April 8, 2013, the same

day the Initial Plea Offer was extended. A Stipulation of Substitution of Counsel

was filed on April 16, 2013. Mr. Malik agreed that he would try to obtain a more

favorable plea offer from the State. By its terms, the Initial Plea Offer would

expire on May 1, 2013. Plea Counsel was unable to procure a more favorable plea

offer for Defendant. The Initial Plea Offer expired when it was not accepted by

Defendant by the deadline of May 1, 2013 and, as noted, Defendant eventually

accepted a plea offer to the lead charge Robbery First Degree (“Final Plea Offer”)

on the day of trial, September 24, 2013.

           Defendant’s Asserted Grounds for Postconviction Relief

      Defendant asserts ineffective assistance of counsel as grounds for relief in

his Initial PCR Motion, as follows: (1) failure by all defense counsel of record to

argue that the elements of Robbery First Degree were not met by the State; (2)

representation by three different attorneys during the course of the pendency of the

criminal charges; and (3) Plea Counsel’s coercion of Defendant to accept the Final

Plea Offer which included a minimum mandatory sentence of five (5) years at

Level V. An additional ground for relief is presented in Defendant’s Second


                                           3
Amended Motion for Postconviction Relief (“Second PCR Motion”) filed by Rule

61 Counsel on February 27, 2015, specifically ineffective assistance of counsel in

Plea Counsel’s failure to accept the Initial Plea Offer before it expired.

                       Procedural Bars to Postconviction Relief

       Before addressing the merits of a motion for postconviction relief, this Court

must consider the procedural requirements of Rule 61(i). 3 Rule 61(i)(1) requires a

motion for postconviction relief be filed within one year after the judgment of

conviction is final. Defendant was sentenced on December 12, 2013, and filed his

Initial PCR Motion on January 27, 2014. Therefore, Defendant’s PCR Motion is

not time-barred and will be considered on the merits.

                                    Standard of Review

       Defendant’s motion to withdraw his guilty plea on the grounds of ineffective

assistance of counsel is governed by Rule 32(d) which provides that after a

sentence has been imposed, the “plea may be set aside only by motion under Rule

61.”4 Defendant must establish that the plea “was either ‘not voluntarily entered or

was entered because of misapprehension or mistake’ as to his legal rights.”5

However, because the basis of Defendant’s PCR Motion is ineffective assistance of



3
  Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).
4
  Super. Ct. Crim. R. 32(d).
5
  Albury v. State, 551 A.2d 53, 58 (Del. 1988) (quoting State v. Insley, 141 A.2d 619, 622 (Del.
Super. 1958)).
                                                4
counsel, the two prong test established in Strickland applies to Defendant’s

claims. 6

                        Ineffective Assistance of Counsel Claims

         In order to satisfy Strickland, the movant must demonstrate (1) that

counsel’s representation fell below an objective standard of reasonableness, 7 and

(2) that counsel’s errors prejudiced the defendant.8 In considering the first prong,

there is a strong presumption that counsel’s actions were professionally

reasonable.9 In considering the second prong, the movant must show “that there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” 10 Failure to prove either prong renders

the claim insufficient. 11

    1. Defendant cannot establish ineffective assistance of counsel with respect to
       the elements of Robbery First Degree.

         Defendant argues that counsel was ineffective for failing to challenge

whether the State could present a prima facie case for Robbery First Degree.

Defendant contends that his criminal actions more accurately constitute the crime

of Robbery Second Degree because he never displayed a deadly weapon, and
6
  Id. (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985) (“The two-part test which was articulated in
Strickland has specifically been held to apply to guilty plea challenges based on a claim of
ineffective assistance of counsel.”).
7
  Strickland v. Washington, 466 U.S. 668, 688 (1984).
8
  Id. at 694.
9
  Id. at 688.
10
   Id. at 694.
11
   Id. at 700.
                                                 5
display of a deadly weapon is an element of Robbery First Degree that must be

established by the State. 12

       Defendant’s claim is without merit. As a threshold matter, Defendant fails

to identify which counsel to whom he is referring. Moreover, assuming that none

of the three defense lawyers challenged whether the State could establish a prima

facie case, an individual may be found guilty of Robbery First Degree when he

“[d]isplays what appears to be a deadly weapon or represents by word or conduct

that [he] is in possession or control of a deadly weapon.”13

       The record demonstrates that the State had evidence to establish a prima

facie case of Robbery First Degree. 14 The victim reported that Defendant had a

pistol. More importantly, Defendant admitted in his post-Miranda interview that

he kept his left hand in his pocket during the robbery as if he had a gun.15

Accordingly, even if Defendant did not actually display a deadly weapon as he

contends, the victim understood that Defendant had a weapon based on

Defendant’s gestures, and Defendant admitted that he used his hand in his pocket

in a manner to represent that he had a gun is a representation by Defendant that


12
   11 Del. C. § 832(a), (a)(2)(“A person is guilty of robbery in the first degree when the person
commits the crime of robbery in the second degree and when, in the course of the commission of
the crime or of immediate flight therefrom, the person or another participant in the crime: [. . .]
Displays what appears to be a deadly weapon or represents by word or conduct that the person is
in possession or control of a deadly weapon [. . .]”).
13
   Id. (emphasis added).
14
   Id.
15
   Second PCR Motion, Mar. 2, 2015, p. 4.
                                                 6
satisfies the standard set forth in Robbery First Degree. On these facts, any

challenge on the grounds that Defendant did not actually possess a weapon would

have been fruitless.            Defendant cannot satisfy either prong of Strickland.

Therefore, Defendant has not established ineffective assistance of counsel.

 2. Defendant cannot establish ineffective assistance of counsel simply
    because he had multiple lawyers as counsel.

          Defendant contends that counsel was ineffective because Defendant was

represented by three attorneys throughout this matter.       Defendant cannot meet

the Strickland test merely because he had multiple lawyers as counsel, especially

where, as here, it was Defendant’s own decisions that led to the retention of

different lawyers at various times. This Court declines to accept Defendant’s

proposal for presumptive prejudice solely by Defendant being represented by

multiple counsel. Instead, Defendant must show representation that fell below an

objective standard of reasonableness and actual prejudice.16 Where, as here, each

lawyer met the standard for professionally reasonable conduct and where

Defendant has not shown prejudice, Defendant cannot establish and has not

established ineffective assistance of counsel.




16
     Strickland, 466 U.S. at 688, 694.
                                              7
 3. Defendant cannot establish ineffective assistance of counsel with respect to
    Defendant’s acceptance of the Final Plea Offer.

       Although Defendant contends that Plea Counsel coerced Defendant into

accepting the State’s Final Plea Offer, Defendant does not offer evidence to

support this claim.         To the contrary, the record evidence establishes that

Defendant’s acceptance of the Final Plea Offer on September 24, 2013, was

knowing, intelligent, and voluntary.

       Pursuant to Superior Court Criminal Procedural Rule 11(c), the Court

addressed Defendant personally in open court and determined that Defendant

understood the nature of the charge to which the plea was offered and the

mandatory minimum penalty of five years provided by law. 17 The Court explained

to Defendant the trial rights Defendant waived by accepting the plea.18

Accordingly, Defendant acknowledged in open court that he understood the rights

he was waiving.19 The Court allowed Defendant additional time to consult with

Plea Counsel regarding Defendant’s acceptance of the plea.20 The Court further

asked Defendant whether anyone was forcing Defendant to plead guilty, to which

the Defendant responded in open court: “No, Your Honor.”21 Finally, Defendant




17
   Plea Colloquy at 3-4.
18
   Plea Colloquy at 3- 5, 7, 12-14, 19,
19
   Plea Colloquy at 3, 12-13.
20
   Plea Colloquy at 8, 10 Sept. 24, 2013.
21
   Plea Colloquy at 13.
                                            8
completed and signed a guilty plea form, which acknowledged that Defendant was

pleading guilty freely and voluntarily.

       The Supreme Court of Delaware has held that defendants are “bound by

those statements” made during the plea colloquy and on guilty plea forms “in the

absence of clear and convincing proof to the contrary.” 22 Defendant has not

provided any evidence sufficient to satisfy the “clear and convincing” standard

required by Delaware law to make a showing that his plea was involuntary.

Accordingly, Defendant has not established ineffective assistance of counsel under

either prong of Strickland.

 4. Defendant cannot establish ineffective assistance of counsel for
    Defendant’s own decision to decline the Initial Plea Offer.

       Defendant contends that Plea Counsel was ineffective for failing to accept

the Initial Plea Offer before the time lapsed, and claims that Plea Counsel should

have accepted the Initial Plea Offer before it expired if Plea Counsel was unable to

negotiate a more favorable plea offer. Defendant cannot establish either prong of

Strickland.    Defendant made a strategic decision to stay out of jail and postpone

the day of reckoning. 23



22
  Krafchick v. State, 100 A.3d 1021, *2 (Del. 2014); Smith v. State, 571 A.2d 788 (Del. 1990).
23
  In an email on July 24, 2013, Plea Counsel explained to the State that Defendant had not
wanted to accept the Initial Plea Offer because he wanted to stay out of jail and continue working
for a longer period of time in order to earn money for his family. Email from John Malik,
Esquire, to Periann Doko, Deputy Attorney General, Delaware Department of Justice (July 24,
2013) (attached as Ex. 3 to State’s Response to Defendant’s Motion for Postconviction Relief).
                                                9
       A criminal defendant alone is empowered with the fundamental decision of

whether to plead guilty. 24 The decision regarding how to plead must be made by a

criminal defendant and cannot be made by defense counsel. 25 Accordingly, Plea

Counsel could not accept the Initial Plea Offer on Defendant’s behalf because Plea

Counsel did not have Defendant’s authority to do so. Defendant therefore cannot

establish the first prong of Strickland.            While Defendant may have suffered

prejudice when the Initial Plea Offer expired, that result cannot be attributed to

Plea Counsel and Defendant also cannot establish prong two of Strickland.

                                          Conclusion

       The Court finds that Defendant’s claims for postconviction relief are without

merit. Defendant has not established ineffective assistance of counsel because

Defendant’s claims cannot meet the test set forth in Strickland.

       NOW, THEREFORE, this 28th day of September, 2015, Defendant

Theodore Johnson’s Motion for Postconviction Relief is hereby DENIED.

       IT IS SO ORDERED.

                                             Andrea L. Rocanelli
                                             ____________________________________
                                             The Honorable Andrea L. Rocanelli

24
   Taylor v. State, 28 A.3d 399, 406 (Del. 2011); see also State v. Rodriguez, 2014 WL 1724778,
at *5 (Del. Super. Apr. 14, 2014) aff'd, 109 A.3d 1075 (Del. 2015) (describing plea decisions as a
defendant’s fundamental right that cannot be made “for the defendant by a surrogate.”).
25
   Taylor, 28 A.3d at 406 (explaining that only the defendant has “ultimate authority to make
certain fundamental decisions … [such] as whether to plead guilty …”).


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