                                   SUPERIOR COURT
                                         OF THE
                                  STATE OF DELAWARE

E. SCOTT BRADLEY                                                          1 The Circle, Suite 2
             JUDGE                                                   GEORGETOWN, DE 19947
                                     July 11, 2016

STATE MAIL – S980C
Robert L. Cooper
SBI # 00413612
Sussex Correctional Institution
P.O. Box 500
Georgetown, DE 19947

             RE: State of Delaware v. Robert L. Cooper
                 ID No: 1207010004A

Dear Mr. Cooper:

      This is my decision on your Motion for Postconviction Relief. You pled guilty

to charges of Failing to Register as a Sex Offender and Unlawful Sexual Contact

Against a Child. The charges arose out of your unlawful sexual contact with a minor

in a house you were staying in as a guest and your failure to register as a sex offender.

More specifically, you crawled into bed with a seven-year-old girl and touched her

vagina. Prior to your acceptance of the State’s plea offer, the State moved to have

you declared a habitual offender. I granted the State’s request. You and the State

entered into a plea agreement on July 3, 2013. It provided that the State and your

attorney would recommend to me that you receive a time-served sentence for the

Failing to Register as a Sex Offender charge, and 25 years at Level V, suspended after
serving 8 years at Level V, for the Unlawful Sexual Contact Against a Child charge.

I followed that recommendation and gave you that sentence. This is your first motion

for postconviction relief and it was filed in a timely manner.

      You allege (1) that your trial counsel was ineffective, (2) that the sex offense

was committed by another person, (3) that your sentence was improper, (4) that there

are contradictions in the facts of the case, and (5) that the victim’s family delayed in

contacting the police so that they could concoct a story to frame you. Your trial

counsel filed an affidavit responding to your allegations. I appointed postconviction

counsel to represent you. However, she concluded that there was no merit to your

allegations. Given the straightforward nature of your allegations, I have concluded

that there is no need to conduct an evidentiary hearing. Since you pled guilty, I must

determine if your trial counsel’s representation of you left you with no choice but to

plead guilty. If it did not, then I must determine if you made a knowing, intelligent

and voluntary waiver of your constitutional rights when you pled guilty.

I. Ineffective Assistance of Counsel

      You allege that your trial counsel was ineffective because 1) he did not get you

the plea offer you wanted, 2) he did not subpoena the witnesses you wanted

subpoenaed for trial, and 3) he forced you to take a plea when you wanted to go to

trial. You also allege that your postconviction relief counsel failed to communicate

                                            2
with you and to adequately defend you. The United States Supreme Court has

established the proper inquiry to be made by courts when deciding a motion for

postconviction relief.1 In order to prevail on a claim for ineffective assistance of

counsel pursuant to Superior Court Criminal Rule 61, the defendant must show: “(1)

counsel’s representation fell below an objective standard of reasonableness; and (2)

counsel’s actions were so prejudicial that, but for counsel’s errors, the defendant

would not have pled guilty and would have insisted on going to trial.”2 Further, a

defendant “must make and substantiate concrete allegations of actual prejudice or risk

summary dismissal.” 3         It is also necessary that the defendant “rebut a ‘strong

presumption’ that trial counsel’s representation fell within the ‘wide range of

reasonable professional assistance,’ and this Court must eliminate from its

consideration the ‘distorting effects of hindsight when viewing that representation.’” 4

A. The Plea Offer

       You allege that your trial counsel was ineffective because he told you for three

months that the prosecutor was offering you a plea deal of five years, which you were


       1
           Strickland v. Washington, 466 U.S. 668 (1984).
       2
        State v. Thompson, 2003 WL 21244679 (Del. Super. April 15, 2003), citing Strickland,
466 U.S. 668 (1984).
       3
           State v. Coleman, 2003 WL 22092724 (Del. Super. Feb. 19, 2003).
       4
           Coleman, 2003 WL 22092724, at *2, quoting Strickland, 466 U.S. at 689.

                                                 3
not willing to take. Presumably, you are alleging that because your plea deal ended

up being for eight years instead of five years that your trial counsel was ineffective

for telling you that a five-year offer was available. The record does not support your

allegation. In his affidavit, your trial counsel stated that the prosecutor was willing

to offer a five-year deal if his supervisor would approve it.             The prosecutor’s

supervisor would only approve a plea offer of eight years. You ended up taking that

plea offer even though it was not what you wanted.

      Your postconviction counsel further reviewed the records and your trial

counsel’s case activity log and found that the prosecutor made an offer of 1) a life

recommendation with a presentence investigation, or 2) eight years at Level V. The

case activity log also mentions a potential offer of five years with supervisory

approval. This information is consistent with your trial counsel’s version of the

events. Moreover, a defendant has no constitutional right or other legal entitlement

to a plea offer.5 In State v. Matthews this Court held that a defendant was not entitled

to postconviction relief after the defendant claimed his trial counsel was ineffective

for failing to convince the State to offer a plea to the defendant.6              In denying

postconviction relief, this Court held: “Since the State does not have a duty to extend


      5
          Washington v. State, 844 A.2d 293, 295 (Del. 2004).
      6
          State v. Matthews, 2014 WL 2538716, at *5 (Del. Super. May 29, 2014).

                                                4
any plea offer to a defendant, this Defendant cannot complain that his counsel was

ineffective because counsel could not convince the State to offer the plea Defendant

wanted to accept.”7 Your trial counsel’s handling of the State’s plea offer did not

leave you with no option but to plead guilty. This allegation is without merit.

B. Subpoena Witnesses

      You allege that your trial counsel was ineffective because he failed to subpoena

two witnesses you wanted for trial. Specifically, you allege that you told your trial

counsel to subpoena Leanna Bishop and Walter Richardson. You contend that they

would have testified to living in the same house as you and to the fact that the house

was infested with bed bugs. You claim that the reason you were sharing a bed with

the victim was because you were getting bitten by bed bugs in your bed. Your trial

counsel subpoenaed Robert Bangs, the victim’s father, and Dr. Hector Maya. Your

trial counsel stated that Robert Bangs would have testified that there were bugs in the

house and that Dr. Hector Maya would have testified that you had a “nonspecific skin

eruption,” which you allege was from the bed bug bites. It is unclear what more your

two witnesses could have offered that would have been helpful and not redundant.

Nevertheless, while there may have been a bed bug problem in the house, the

proposed testimony does not persuasively address any of the charges against you.


      7
          Id.

                                            5
Indeed, even if there were bugs in your bed, that does not justify you crawling into

bed with a child. There is no doubt that a jury would not have found that to be much

of an excuse. Your trial counsel subpoenaed witnesses who were going to provide

the testimony you wanted. Your trial counsel’s representation in this matter did not

leave you with no other option than to pled guilty. This allegation is without merit.

C. Wanted to go to Trial

      You allege that your trial counsel was ineffective because he forced you to take

a plea when you wanted to go to trial. Nothing in your actions prior to accepting the

plea offer or in your current motion supports your allegation. The basis of this

allegation seems to be that your trial counsel told you that you were facing a life

sentence. That was the unpleasant reality you were facing. The following are the

applicable portions of the Truth-in-Sentencing Guilty Plea Form that address the

voluntary nature of your plea:

      Have you freely and voluntarily decided to plead guilty to the charges
      listed in your written plea agreement?

      You answered “yes.”

      Have you been promised anything that is not stated in your written plea
      agreement?

      You answered “no.”

      Has your lawyer, the State, or anyone threatened or forced you to enter

                                          6
      this plea?

      You answered “no.”

                                    **********
      The following are the applicable portions of your plea colloquy that address the

voluntary nature of your plea:


      THE COURT: Mr. Cooper, I understand you have decided to plead
      guilty to charges of failing to register or re-register as a sex offender,
      and sex offender-unlawful sexual conduct against a child.


      THE DEFENDANT: Yes, Your Honor.8

                                             **********

      THE COURT: Did anybody force you to take this plea?

      THE DEFENDANT: No.

      THE COURT: Did anybody promise you anything in exchange for it?

      THE DEFENDANT: No.9

                                             **********

      THE COURT: Are you sure that this is how you wish to resolve the
      charges against you?




      8
          Plea Transcript at 4 (July 3, 2013).
      9
          Id. at 5-6.

                                                 7
      THE DEFENDANT: Yes, Your Honor.10

      You are bound by the answers you gave to the questions on the Truth-in-

Sentencing Guilty Plea Form and during your plea colloquy. 1 1 Based on the answers

that you gave, I conclude that your guilty plea was made voluntarily.

D. Postconviction Counsel

      You allege that your postconviction counsel was ineffective due to her failure

to communicate with you and to defend you. You were assigned counsel for your

postconviction relief motion. Your postconviction counsel undertook a thorough

analysis of the record and evaluated your claims.                  After this review, your

postconviction counsel determined there was not enough merit to your claims to be

ethically advocated. Furthermore, she could not find any other potential meritorious

grounds for relief. As a result, you postconviction counsel filed a motion to withdraw

as your counsel. I reviewed that motion and granted it. This allegation is without

merit and had no bearing on your decision to accept the State’s plea deal.

      In summary, I conclude that your trial counsel’s representation of you did not

leave you with no choice but to plead guilty and that your postconviction counsel

correctly concluded that there was no merit to your allegations.


      10
           Id.
      11
           Savage v. State, 815 A.2d 349, 2003 WL 214963, at *2 (Del. Jan. 31, 2003)(Table).

                                                8
II. Waiver of Rights

      I have reviewed the Truth-in-Sentencing Guilty Plea Form and the plea

colloquy and determined it is clear that you made a knowing, intelligent and

voluntary waiver of your trial rights. Before accepting a guilty plea, the trial court

must engage the defendant in a series of questions in open court in order to determine

the voluntariness of the plea.12 This plea colloquy must be preserved on the record

and the judge must determine that the defendant realizes and understands the nature

of the charges and the various penalties provided for that offense.13 “The record must

reflect that a defendant understands that the guilty plea constitutes a waiver of a trial

on the charges and the various constitutional rights to which he would have been

entitled had he gone to trial.”14 “A defendant’s statements to the Superior Court

during the guilty plea colloquy are presumed to be truthful.”15 Where the defendant

has signed his Truth-in-Sentencing Guilty Plea Form and answered at the plea

colloquy that he understands the effects of the plea, the defendant must show by clear

and convincing evidence that he did not sign this form knowingly and voluntarily. 16

      12
           Weeks v. State, 653 A.2d 266, 269 (Del. 1995).
      13
           Sullivan v. State, 636 A.2d 931, 937 (Del. 1994).
      14
           Id.
      15
           Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
      16
           Savage v. State, 815 A.2d 349, 2003 WL 214963, at *2 (Del. Jan. 31, 2003)(Table).

                                                 9
      The record demonstrates that you understood the rights you waived and did so

knowingly, intelligently and voluntarily. This is demonstrated by your answers on

the Truth-in-Sentencing Guilty Plea Form and your answers during the plea colloquy.

The following are the applicable questions and your answers on the Truth-in-

Sentencing Guilty Plea Form:

      Have you freely and voluntarily decided to plead guilty to the charges
      listed in your written plea agreement?

      You answered “yes.”

      Have you been promised anything that is not stated in your written plea
      agreement?

      You answered “no.”

      Has your lawyer, the State, or anyone threatened or forced you to enter
      this plea?

      You answered “no.”

      Do you understand that because you are pleading guilty you will not
      have a trial, and you therefore waive (give up) your constitutional rights:

      (1) to have a lawyer represent you at trial;

      (2) to be presumed innocent until the State can prove each and every
      part of the charge(s) against you beyond a reasonable doubt;

      (3) to a speedy and public trial by jury;

      (4) to hear and question the witnesses against you;



                                           10
(5) to present evidence in your defense;

(6) to testify or not testify yourself; and

(7) to appeal, if convicted, to the Delaware Supreme Court with the
assistance of a lawyer?

You answered “yes.”

The following is an excerpt of your plea colloquy:

THE COURT: Mr. Cooper, I understand you have decided to plead
guilty to charges of failing to register or re-register as a sex offender,
and sex offender-unlawful sexual conduct against a child.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand the nature of each one of those
offenses?

THE DEFENDANT: Yes, Your Honor.

THE COURT: You understand the charge you are pleading guilty to; is
that correct?

THE DEFENDANT: Yes.

THE COURT: All right. You understand that because of your status as
a habitual offender on the first charge, failing to register or re-register
as a sex offender, you face a sentence of up to life in prison? Do you
know that?

THE DEFENDANT: Yes.

THE COURT: Do you understand that on the other charge you face a
sentence from two to 25 years in jail?



                                      11
THE DEFENDANT: Yes, Your Honor.

THE COURT: You have certain rights, Mr. Cooper; those rights are
listed on the Truth-In-Sentencing Guilty Plea Form that you have
already signed.

      Have you discussed those rights with [Counsel]?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand all of those rights?

THE DEFENDANT: Yes.

THE COURT: Do you understand that by pleading guilty to these two
offenses you are waiving all of those rights and there won’t be a trial?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Did anybody force you to take this plea?

THE DEFENDANT: No.

THE COURT: Did anybody promise you anything in exchange for it?

THE DEFENDANT: No.

THE COURT: Did you commit these two offenses?

THE DEFENDANT: I’m taking a plea. Yes.

THE COURT: Is that a yes?

THE DEFENDANT: Yes.

THE COURT: All you satisfied with [Counsel’s] representation of you?



                                   12
       THE DEFENDANT: Yes.

       THE COURT: Are you sure that this is how you wish to resolve the
       charges against you?

       THE DEFENDANT: Yes, Your Honor.

       THE COURT: All right. Based on that, I will accept your plea as being
       made knowingly, intelligently and voluntarily.17


       One of the rights you waived was the right to have a trial on the charges against

you. If you had wanted to have had a trial, you certainly could have done so. All you

had to do was turn down the State’s plea offer and proceed to trial. You chose not to

do that. I am satisfied now, as I was on July 3, 2013, that you made a knowing,

intelligent and voluntary decision to waive your rights and plead guilty.         Your

allegation is without merit.

III. The Real Perpetrator

       You allege that Victor Kyle actually committed the sex offense in this case.

Apparently, Mr. Kyle was incarcerated on similar charges and, according to you, may

have been a possible witness for the State. There is no evidence in the record to

support your allegation. The victim in this case identified you as the person who

sexually assaulted her, and no one else. Additionally, you admitted during your plea



       17
            Plea Transcript at 4-6 (July 3, 2013).

                                                     13
colloquy that you committed the crimes charged. This allegation is without merit and

was knowingly, intelligently and voluntarily waived by pleading guilty.

IV. The Court’s Sentence

      You allege that the Court’s sentence does not match the plea deal you accepted.

I sentenced you to 161 days on the Failing to Register as a Sex Offender charge with

credit for 161 days served, and 25 years at Level V, suspended after eight years at

Level V, on the Unlawful Sexual Contact charge. The plea agreement, which you

signed, set forth the exact sentence I gave you. You have presented no evidence that

you received a sentence other than the one you agreed to and which you stated you

understood during the plea colloquy. Additionally, this Court is not bound by the

plea agreement. I could have given you a longer sentence, but I did not. This

allegation is without merit and was knowingly, intelligently and voluntarily waived

by pleading guilty

V. Conflicting Facts

      You allege that there was a contradiction in the facts which placed you in two

different locations at the same time. You could have challenged those facts at trial,

but chose to accept a plea deal instead, thereby waiving your right to do this.

Moreover, the victim in this case identified you as the person who molested her.

Even worse, you actually placed yourself in her bed, claiming you were sleeping there

                                           14
because of the bed bug problem.          This allegation is without merit and was

knowingly, intelligently and voluntarily waived by pleading guilty

VI. Delay in Contacting the Police

      You allege that the victim’s family delayed in contacting the police so that they

could concoct a story to frame you. A victim in a sexual assault case can have

numerous reasons for not contacting the police immediately after the assault. The

facts demonstrate that you sexually assaulted the victim at night on July 5, 2012. The

victim informed her mother about the assault on July 6, 2012. The victim’s mother

reported the sexual assault to the Delaware State Police on July 8, 2012. There could

be any number of reasons why the victim and her family waited a mere two days to

contact the police. There is nothing unusual about this. Moreover, you have not

identified any facts supporting your allegations that the victim’s family was out to

frame you. This allegation is without merit and was knowingly, intelligently and

voluntarily waived by pleading guilty.

                                   CONCLUSION

      Your Motion for Postconviction Relief is DENIED.




                                           15
     IT IS SO ORDERED.

                              Very truly yours,

                              /s/ E. Scott Bradley

                              E. Scott Bradley

ESB/sal
cc: Prothonotary
     Counsel




                         16
