IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ID. No. 1707014097
In and for Kent County

STATE OF DELAWARE

v.
RKl 7-07-0449-01

GEORGE F. RICHARDS, DUI 7th OFFENSE (F)

\./\./\/\./\./\./V

Defendant.

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Kenneth M. Haltom, Esquire, Deputy Attorney General, Department of Justice, for
the State of Delaware.

George F. Richards, Pro se

FREUD, Commissioner
November 30, 2018

The defendant, George F. Richards (“Richards”), pled guilty on August 3 , 2017
two Weeks after his arrest, Waiving an Indictment and proceeding by Way of an
Information to one count of Driving Under the Influence of Alcohol Seventh Offense,
2l Del. C. § 4177. He also faced one count of Resisting Arrest, one count of Criminal
Mischief and one count of Following Too Closely Which Were nolle prossea' by the

State in exchange for Richards’ plea. AS part of the plea deal the State and the

State v. George F. Richards
ID No. 1707014097
November 30, 2018

defense agreed upon a recommended sentence of fifteen years incarceration
suspended after serving four years minimum mandatory further suspended after
serving two and one half years pursuant to 21 Del. C. § 4177(d)(9) in a substance
abuse program at Level V immediately followed by probation with thirteen days
credit for time served. The Court agreed with the sentence recommendation and
sentenced Richards accordingly. Richards did not appeal his conviction or sentence
to the State Supreme Court. Instead Richards filed the pending motion for
postconviction relief pursuant to Superior Court Criminal Rule 61 in which he
alleges, in part, ineffective assistance of counsel.

The charges stemmed from complaints to the Harrington Police, on July 19,
2017, that a man was driving around Friendship Village in Harrington yelling at
people and appeared to be under the influence. The police located the vehicle and
stopped Richards and immediately smelled the odor of alcohol. A field test was
performed and Richards blood alcohol content registered at .143 over the legal limit.
A second test taken at the police station read .138. While he was in the holding cell
Richards attempted to take off the handcuffs and wrestled with the police.1

RICHARDS’ CONTENTIONS
ln his motion, Richards raises the following grounds for relief:

Ground one: Ineffective Assistance of counsel.
No investigation on my behalf. No
BAC was ever given in writing which

 

1 State v. Richards, Del. Super. ID no. 1707014097, Aff. of Probable Cause, D.I. 1.

2

State v. George F. Richards
ID No. 1707014097
November 30, 2018

Ground two:

Ground three:

Unnumbered Ground :

should happen when Breathalyzer is
used.

Probable cause to stop

defendant.

There was no traffic violation by
defendant The officer stated he
pulled defendant over for hollaring
(sic) at someone. Only days later
changed his story.

Uncalibrated B.A.C machine.
The Harrington pd’s machine
was not properly calibrated.
Also defendant never got any
paperwork whatsoever. Never
even was read rights.

The BAC. machine wasn’t calibrated, The
defendant was never given a bac printout
never given charges on paper and still
doesn’t have any. The officer wasn’t
trained in Dui Procedures. Due process was
skipped alltogether (sic). As far as arrest
goes with an uncalibrated machine and the
officers stated BAC Results could even
resulted (sic) in an under the limit result.
There was no investigative work done on
my behalf. Not to mention that there was
no probable cause to stop the defendant. lt
was even stated in the newspaper why they
stopped the defendant. Which was untrue
stating l hollard (sic) at someone.

3

State v. George F. Richards
ID No. 1707014097
November 30, 2018

DISCUSSION

Under Delaware law, this Court must first determine whether Richards has met
the procedural requirements of Superior Court Criminal Rule 61(i) before it may
consider the merits of his postconviction relief claim.2 This is Richards’ first motion
for postconviction relief, and it was filed within one year of his conviction becoming
final. Therefore, the requirements of Rule 6l(i)(l) - requiring filing within one year
and (2) - requiring that all grounds for relief be presented in initial Rule 61 motion,
are met. None of Richards’ claims were raised at the plea, sentencing, or on direct
appeal. Therefore, they are barred by Rule 61 (i)(3), absent a demonstration of cause
for the default and prejudice. To some extent each of Richards’ claims are based on
ineffective assistance of counsel; therefore, he has alleged cause for his failure to
have raised them earlier.

At this point, Rule 6l(i)(3) does not bar relief as to Richards’ grounds for
relief, provided he demonstrates that his counsel was ineffective and that he was
prejudiced by counsel’s actions. To prevail on his claim of ineffective assistance of
counsel, Richards must meet the two-prong test of Strickland v. Washing)ton.3 In the
context of a guilty plea challenge, Strickland requires a defendant show: (1) that
counsel's representation fell below an objective standard of reasonableness; and (2)

that counsel's actions were prejudicial to him in that there is a reasonable probability

 

2 Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991).

3 466 U.S. 668 (1984).

State v. George F. Richards
ID No. 1707014097
November 30, 2018

that, but for counsel's error, he would not have pled guilty and would have insisted
on going to trial and that the result of a trial would have been his acquittal.4 The
failure to establish that a defendant would not have pled guilty and would have
proceeded to trial is sufficient cause for denial of relief.5 ln addition, Delaware courts
have consistently held that in setting forth a claim of ineffective assistance of counsel,
a defendant must make concrete allegations of actual prejudice and substantiate them
or risk summary dismissal.6 When examining the representation of counsel pursuant
to the first prong of the Strickland test, there is a strong presumption that counsel's
conduct was professionally reasonable.7 This standard is highly demanding.8
Stricklana' mandates that, when viewing counsel's representation, this Court must
endeavor to “eliminate the distorting effects of hindsight.”9

Following a complete review of the record in this matter, it is abundantly clear

that Richards has failed to allege any facts sufficient to substantiate his claim that his

 

4 Id. at 687.

5 Somerville v. State, 703 A.2d 629, 631 (Del. 1997)(citing Albury v. State, 551 A.2d 53,
60 (Del. 1988))(citations omitted).

6 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State, 1995
WL 466465 at *l (Del. Supr.)).

7 Albury, 551 A.2d at 59 (citing Strickland, 466 U.S. at 689).

8 Flamer v. State, 585 A.2d 736, 754 (Del. 1990)(quoting Kimmelman v. Morrison, 477
U.S. 365, 383 (1986)).

9 srrickland, 466 U.s. ar 689.

State v. George F. Richards
ID No. 1707014097
November 30, 2018

attorney was ineffective. I find trial counsel’s affidavit, in conjunction with the
record, more credible that Richards’ self-serving claims that his counsel’s
representation was ineffective. Richards’ counsel clearly denies the allegations

Richards was facing the possibility of fifteen years in prison had he been
convicted, and the sentence and plea were reasonable under all the circumstances,
especially in light of the evidence against him. Prior to the entry of the plea, Richards
and his attorney discussed the case. The plea bargain was clearly advantageous to
Richards. Counsel’s representation was certainly well within the range required by
Strickland. Additionally, when Richards entered his guilty plea, he stated he was
satisfied with defense counsel’s performance. He is bound by his statement unless
he presents clear and convincing evidence to the contrary.10 Consequently, Richards
has failed to establish that his counsel’s representation was ineffective under the
Strickland teSt.

Even assuming, arguendo, that counsel’s representation of Richards was
somehow deficient, Richards must satisfy the second prong of the Strickland test,
prejudice. In setting forth a claim of ineffective assistance of counsel, a defendant
must make concrete allegations of actual prejudice and substantiate them or risk

dismissalll ln an attempt to show prejudice, Richards simply asserts that his counsel

 

10 Mapp v. State, 1994 WL 91264, at *2 (Del.Supr.)(citing Sullivan v. State, 636 A.2d
931, 937-938 (D€l. 1994)).

11 Larson v. State, 1995 WL 389718, at *2 (Del. Supr.)(citing Younger, 580 A.2d 552,
556 (Del. 1990)).

State v. George F. Richards
ID No. 1707014097
November 30, 2018

was ineffective. His statements are insufficient to establish prejudice, particularly in
light of the evidence against him. Therefore, l find Richards’ grounds for relief are
meritless.

To the extent that Richards alleges his plea was involuntary, the record
contradicts such an allegation. When addressing the question of whether a plea was
constitutionally knowing and voluntary, the Court looks to a plea colloquy to
determine if the waiver of constitutional rights was knowing and voluntary.12 At the
guilty-plea hearing, the Court asked Richards whether he understood the nature of the
charges, the consequences of his pleading guilty, and whether he was voluntarily
pleading guilty. The Court asked Richards if he understood he would waive his
constitutional rights if he pled guilty including the right to suppress evidence; if he
understood each of the constitutional rights listed on the Truth-in-Sentencing Guilty
Plea Forrn (“Guilty Plea Form”); and whether he gave truthful answers to all the
questions on the form. The Court asked Richards if he had discussed the guilty plea
and its consequences fully with his attorney. The Court asked Richards if he was
entering into the plea as he was guilty of the charges. The Court also asked Richards
if he was satisfied with this counsel’ s representation. Richards answered each of these
questions affirmatively.13 l find counsel’s representations far more credible than

Richards’ self-serving, vague allegations.

 

12 Godinez v. Moran, 509 U.S. 389, 400 (1993).

13 szaze v. Richards, Del. super., ID No. 1707014097 (Aug. 3, 2017) Tr. at 3-10.

State v. George F. Richards
ID No. 1707014097
November 30, 2018

Furthermore, prior to entering his guilty plea, Richards signed a Guilty Plea
Form and Plea Agreement in his own handwriting. Richards’ signatures on the forms
indicate that he understood the constitutional rights he was relinquishing by pleading
guilty and that he freely and voluntarily decided to plead guilty to the charges listed
in the Plea Agreement. Richards is bound by the statements he made on the signed
Guilty Plea Form, unless he proves otherwise by clear and convincing evidence.14 l
confidently find that Richards entered his guilty plea knowingly and voluntarily and
that Richards’ grounds for relief are completely meritless.

CONCLUSION

l find that Richards’ counsel represented him in a competent and effective
manner and that Richards has failed to demonstrate any prejudice stemming from the
representation. I also find that Richards’ guilty plea was entered knowingly and
voluntarily. I recommend that the Court deny Richards’ motion for postconviction
relief as procedurally barred and completely meritless pursuant to Superior Court

Criminal Rule 61 (i)(3).

/s/Andrea M Freud
Commissioner

AMF/dsc
oc: Prothonotary

 

14 sommerville 703 A.2d ar 632.

