      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                                          )
STATE OF DELAWARE                         )
                                          )
           v.                             )    ID#1303016651
                                          )
DASHAWN D. WATSON,                        )
                                          )
                 Defendant                )


                         Submitted: October 14, 2016
                          Decided: January 5, 2017

          On Defendant’s Motion for Postconviction Relief. DENIED.

   On Defendant’s Motion for Appointment of Counsel. DENIED AS MOOT.

                                 ORDER
Martin B. O’Connor, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

DaShawn D. Watson, James T. Vaughn Correctional Center, Smyrna, Delaware,
pro se.

COOCH, R.J.

       This 5th day of January 2017, upon consideration of Defendant’s pro se
Motion for Postconviction Relief and pro se Motion for Appointment of Counsel,
it appears to the Court that:

                I. FACTS AND PROCEDURAL HISTORY

     1.    On March 13, 2013, Wilmington Police were notified that someone
           had been shot inside Iggy’s Food Market on West 27th Street in
           Wilmington. Upon arrival, Wilmington Police found the victim,
           Stacey Tymes, on the floor of the store. Although medical personnel
                                      1
     promptly arrived and attempted to treat the victim, the victim died due
     to the gunshot wounds. After performing an autopsy, the medical
     examiner determined that victim’s death was a homicide.

2.   On March 21, 2013, police received information from a confidential
     informant that the person who shot the victim was Defendant. Police
     then located and arrested Defendant at the Wilmington bus station.
     While in custody, Defendant initially denied killing the victim.
     However, upon further questioning, Defendant admitted to
     committing the act.

3.   On April 29, 2013, Defendant was indicted on charges of Murder First
     Degree, Possession of a Firearm During the Commission of a Felony
     (“PFDCF”), and Possession of a Deadly Weapon by a Person
     Prohibited (“PDWBPP”). Trial counsel, Eugene J. Maurer, Jr.,
     Esquire, was subsequently appointed to represent Defendant on the
     three charges.

4.   On June 13, 2014, Defendant entered into a plea agreement with the
     State. Pursuant to the plea agreement, Defendant agreed to plead
     guilty to Murder Second Degree and PFDCF; a nolle prosequi would
     be entered on the PDWBPP charge. In exchange, the State agreed to
     cap its recommendation at twenty-five years of imprisonment on the
     Murder Second Degree charge. No recommendation was specified
     regarding sentencing on the PFDCF charge.

5.   After Defendant entered into the plea agreement with the State, the
     Court held a plea colloquy with him. During the plea colloquy, the
     following exchange between the Court and Defendant occurred:

           The Court: Do you understand that what is being done today is
           final, and that you will not be able to come back at a later time
           to seek to withdraw this guilty plea; do you understand that?

           Defendant: Yes.


                                     2
                        ...
                        The Court: Do you believe you are knowingly, intelligently and
                        voluntarily entering plea of guilty to [Murder Second Degree
                        and PFDCF]?

                        Defendant: Yes.

                        The Court: I tried to engage in a thorough colloquy, I observed
                        the defendant, his demeanor, among other things during the
                        guilty plea colloquy. I am satisfied that the defendant has
                        made a knowing, intelligent, and voluntary plea to the two
                        charges. They are accepted.1


         6.      Defendant was sentenced on August 26, 2014. On the charge of
                 Murder Second Degree, Defendant was sentenced to thirty years at
                 Level V supervision, suspended after twenty-five years for decreasing
                 levels of supervision. On the charge of PFDCF, the Court sentenced
                 Defendant for 10 years of Level V supervision. That sentence was
                 imposed consecutively to the Murder Second Degree sentence.

         7.      On September 19, 2016, Defendant filed pro se a Motion                   for
                 Postconviction Relief and a Motion for Appointment of Counsel.           On
                 October 11, 2016, Defendant’s trial counsel, Eugene J. Maurer,           Jr.,
                 Esquire filed an affidavit in response to Defendant’s Motion             for
                 Postconviction relief.

                                       II. DISCUSSION

         8.      In his Motion for Postconviction Relief, Defendant makes four claims.
                 First, Defendant claims that the plea agreement into which he entered
                 was “unfulfilled.”2 Second, Defendant argues that his guilty plea was
                 coerced. Third, Defendant asserts that his trial counsel was
                 ineffective when trial counsel advised Defendant that he would
                 withdraw as counsel if he did not take the plea. Fourth, Defendant

1
    Transcript of Plea Colloquy held on June 13, 2014, at 12-13.
2
    Def.’s M. for Postconviction Relief at 3.
                                                  3
              contends that he was eighteen years old at the time he pleaded guilty
              and “did not fully understand the complicity of what was going on
              between the state and attorney.”3

       9.     Defendant first claims that he is entitled to postconviction relief
              because the plea agreement is “unfulfilled.” Defendant asserts that “it
              was agreed upon for a plea of 18 years to 28 years not to exceed 28
              years and sentencing day I received 35 years.4 However, this Court is
              not bound by an agreed upon sentence.5 Because the Court has
              discretion on whether impose the agreed upon sentence,6 a sentence in
              excess of the State’s recommendation does not give rise to a claim for
              postconviction relief. Moreover, the plea agreement was silent as to
              the recommended sentence on the PFDCF charge. The imprisonment
              sentence in excess of the twenty-five year recommendation on the
              Murder Second Degree charge reflects Defendant’s sentence on the
              PFDCF charge. Accordingly, the Court acted within its discretion
              when it sentenced Defendant to be imprisoned for thirty-five years,
              and Defendant’s first claim is without merit.

       10.    Second, Defendant argues that his confession was coerced because of
              statements made to him by trial counsel. A claim that a guilty plea
              was coerced because of a purported statement made by trial counsel is
              evaluated under the Strickland v. Washington ineffective assistance of
              counsel standard.7 Under Strickland, Defendant must show (1) that
              his counsel’s performance was deficient and (2) that such deficient
              performance prejudiced the outcome of his case, and that, “but for
              trial counsel’s errors, Defendant would not have pleaded guilty and
              would have insisted on going to trial.”8 Counsel’s performance is
              evaluated on an objective standard of reasonableness,9 with great
              deference given to counsel’s decisions.10 “A defendant asserting


3
  Def.’s M. for Postconviction Relief at 3.
4
  Id.
5
  Somerville v. State, 703 A.2d 629, 633 (Del. 1997).
6
  Id.
7
  Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Strickland v. Washington, 466 U.S. 668 (1984).
8
  Id.
9
  Ploof v. State, 75 A.3d 811, 821 (Del. 2013).
10
   Strickland v. Washington, 466 U.S. 668, 687 (1984).
                                               4
              ineffective assistance of counsel is required to make concrete
              allegations of cause and actual prejudice.”11

       11.    In the case at bar, Defendant contends that his “attorney advised [him]
              that if [he] did not take the plea [he] would be giving a guaranteed life
              sentence.” In response to this claim, Defendant’s trial counsel stated
              in his affidavit:

                     I did in fact advise the defendant that if he did not accept the
                     plea, the evidence in the case was such that he would likely
                     have been convicted of murder in the first degree. I also
                     advised him that the sentence for a first degree murder
                     conviction was a mandatory sentence of life imprisonment. I
                     did not tell the defendant that he would be guaranteed a life
                     sentence but that it would [be] most likely given the evidence
                     that he would have been convicted [of] murder in the first
                     degree.12

       12.    Under the first prong of Strickland, Defendant must show that his trial
              counsel’s conduct was below the objective standard of
              reasonableness. Defendant has failed to meet this requirement. Trial
              counsel advised Defendant that the evidence against him on a charge
              of Murder First Degree was strong, as there were two eyewitnesses to
              the shooting and Defendant confessed to the police that he committed
              the crime. Trial counsel also advised Defendant that the minimum
              sentence for Murder First Degree was life imprisonment. This was
              presumably done in attempt to permit Defendant to make an informed
              decision as to whether he should plead guilty, not in an attempt to
              coerce a guilty plea from him. Additionally, during the plea colloquy,
              Defendant acknowledged he “freely and voluntarily decided to plead
              guilty to the charges listed in the written plea agreement,” and that
              nobody “threatened or forced him to enter into this plea.”13
              Accordingly, as Defendant has failed to show that his attorney’s
              conduct was deficient, his second claim is without merit.

       13.    Defendant’s third claim is that he received ineffective assistance of
              counsel when his attorney “advised [Defendant] that he would

11
   Hamby v. State, 2005 WL 2871988, at *1 (Del. Oct. 31, 2005).
12
   Aff. of Trial Counsel at 2-3.
13
   Transcript of Plea Colloquy held on June 13, 2014, at 6-7.
                                              5
               withdraw if [Defendant] did not take the plea.”14 As previously
               stated, Defendant must satisfy the Strickland v. Washington standard
               to prevail on an ineffective assistance of counsel claim. In response to
               this Claim, Defendant’s trial counsel stated in his affidavit that he “did
               not advise the defendant that he was going to withdraw as his attorney
               if he did not take the plea offer.”15 Defendant’s trial counsel also
               advised that “given how much time had gone by in the case and the
               fact that the case was ready for trail, no motion would have been
               accepted by the Court in any event.”16 Further, Defendant’s trial
               counsel stated in his affidavit that he thoroughly reviewed the State’s
               plea offer with Defendant.17

       14.     Defendant has failed to show that his trial counsel’s performance was
               deficient as required by Strickland. Defendant’s trial counsel
               informed Defendant of the consequences, positive and negative, of
               entering into the plea agreement. Moreover, Defendant’s trial counsel
               avers to the Court that he never advised Defendant that he would
               withdraw as counsel if Defendant did not accept the plea offer. Upon
               reviewing the record, the Court is satisfied that trial counsel carried
               out his duties to render effective assistance of counsel. Accordingly,
               Defendant’s third claim is without merit.

       15.     Finally, in an apparently unnumbered ground claiming ineffective
               assistance of counsel, Defendant claims that he was “18 years of age
               when the plea was offered and did not fully understand the complicity
               of what was going on between the State and attorney.”18 This
               argument is conclusory without any supporting facts to explain why
               his being eighteen-years-old prevented him from understanding the
               consequences of his guilty plea. The Court will not consider
               conclusory allegations that are not supported by the record.19
               Moreover, the Court conducted a thorough plea colloquy with
               Defendant in which the Court was satisfied that Defendant understood
               the consequences of his guilty plea, and that Defendant gave a


14
   Def.’s M. for Postconviction Relief at 3.
15
   Aff. of Trial Counsel, at 3.
16
   Id.
17
   Id.
18
   Def.’s M. for Postconviction Relief at 3.
19
   State v. Ellis, 2016 WL 6091691, at *3 (Del. Super. Oct. 18, 2016).
                                                6
                 “knowing, intelligent, and voluntary” guilty plea.20       Accordingly,
                 Defendant’s fourth claim is without merit.

                                      III. CONCLUSION

Therefore, Defendant’s Motion for Postconviction Relief is DENIED.

Defendant’s Motion for Postconviction Relief being denied, Defendant’s Motion
for Appointment of Counsel is DENIED AS MOOT.

IT IS SO ORDERED.

                                                                 /s/Richard R. Cooch
                                                                   Richard R. Cooch, R.J.

oc:       Prothonotary
cc:       Investigative Services




20
     Transcript of Plea Colloquy held on June 13, 2014, at 13.
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