            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE




STATE OF DELAWARE,                            )
                                              )
                     Plaintiff,               )
                                              )
                                              )
       v.                                     )      Cr. ID No. 1411002179
                                              )
CHARLES R. COLBURN,                           )
                                              )
                     Defendant.               )
                                              )



                                  Submitted: April 13, 2016
                                   Decided: April 28, 2016


        COMMISSIONER’S REPORT AND RECOMMENDATION THAT
         DEFENDANT’S MOTION FOR POSTCONVICTION RELIEF
                       SHOULD BE DENIED.




Brian J. Robertson, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Charles R. Colburn, Howard R. Young Correctional Institution, Wilmington, Delaware,
pro se.




PARKER, Commissioner
         This 28th day of April 2016, upon consideration of Defendant’s Motion for

Postconviction Relief, it appears to the Court that:

BACKGROUND AND PROCEDURAL HISTORY

1.      On January 7, 2015, Defendant Charles R. Colburn pled guilty to Drug Dealing-

Heroin (as a Class B felony), Possession of a Firearm During the Commission of a

Felony, and Possession of a Firearm by a Person Prohibited.         As part of the plea

agreement, Defendant also admitted to a then-pending violation of probation since he was

serving a probated sentence for a 2012 aggravated drug possession conviction when he

committed this new drug crime. 1 As part of the plea agreement, the State agreed to

dismiss all other pending charges which included a number of additional felony charges. 2

2.      The parties agreed as part of the plea agreement to stipulate to, and jointly

recommend, a sentence of nine years of unsuspended Level V time. The State further

agreed not to seek to sentence Defendant as a habitual offender, pursuant to 11 Del. C. §

4214(a). 3

3.      After the entry of the plea, the court followed the parties’ joint sentence

recommendation, and Defendant was immediately sentenced to nine years of

unsuspended Level V time followed by decreasing levels of probation.

4.      Defendant did not file a direct appeal to the Delaware Supreme Court.

5.      Shortly after the plea agreement was agreed to by the parties, and accepted by the

court, on March 30, 2015, Defendant filed a motion for sentence reduction/modification.

In that motion, Defendant requested reduction of his cumulative nine year Level V

sentence by two years. The first seven years of his cumulative sentence is comprised of

1
  Charles R. Colburn- Criminal ID No. 1202000065.
2
  January 7, 2015 Plea Agreement.
3
  Id.


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minimum terms of incarceration that must be imposed and cannot be suspended. In short,

Defendant asked the court to suspend the entire two years of imprisonment imposed for

the Possession of a Firearm by a Person Prohibited charge. 4

6.         By Order dated April 24, 2015, the Superior Court denied Defendant’s motion for

any reduction of sentence. In denying that motion, the Superior Court noted that

Defendant had expressly agreed to the sentence imposed (nine years of non-suspended

Level V time), obtained the benefit of that express agreement, and then turned around and

expressly asked the court to undercut that agreement for him by striking two years from

his sentence. 5

DEFENDANT’S RULE 61 MOTION

7.         On February 5, 2016, Defendant filed the subject Rule 61 motion for

postconviction relief.

8.         In the subject motion, Defendant claims that his counsel was ineffective for not

arguing at his sentencing for a lesser sentence. Specifically, Defendant claims that

counsel informed him he was “not eligible for a concurrent sentence and failed to argue

that at my sentencing that it can run concurrent pursuant to 11-3901 Section D 1447A.”

9.         Before making a recommendation, the Commissioner enlarged the record by

directing Defendant’s trial counsel to submit an Affidavit responding to Defendant’s

claim. 6

10.        First, it does not appear that Defendant is seeking to set aside his judgment of

conviction. It appears as if Defendant is seeking only to reduce his sentence. As such,

Defendant’s motion does not state a cognizable Rule 61 claim. Defendant’s Rule 61

4
  State v. Colburn, 2015 WL 1881181 (Del.Super. 2015).
5
  State v. Colburn, 2015 WL 1881181, at * 3 (Del.Super. 2015).
6
  Super.Ct.Crim.R. 61(g)(1) and (2).


                                                   2
motion is not the appropriate vehicle to seek the relief requested. A Rule 61 motion is

only available to those seeking to set aside a judgment of conviction or a sentence of

death, and only where there is a sufficient factual and legal basis for a collateral attack on

the conviction or capital sentence. 7

11.     Claims for sentence reductions and/or modifications are presented by way of Rule

35 motions. A defendant may not disguise an application for a modification of sentence

by couching the request as a motion for postconviction relief. 8 Defendant has not stated a

cognizable Rule 61 claim, and therefore, his motion should be dismissed.

12.     Second, to the extent that the claim is cognizable under Superior Court Criminal

Rule 61, Superior Court Criminal Rule 61(i)(4) precludes this court’s consideration of the

claim since Defendant has already sought to obtain the same relief in his motion for

sentence reduction/modification. In that motion, like this motion, Defendant also sought

to reduce his cumulative nine year Level V term by two years.

13.     The Superior Court already noted that the sentence imposed of nine years

unsuspended Level V time was the sentence Defendant expressly agreed to under the

terms of the plea agreement. The court already noted that Defendant cannot unilaterally

undercut the agreement he made with the State by seeking to have two years of his nine

year sentence stricken. Defendant’s motion is procedurally barred on the grounds that it

was previously adjudicated. 9

14.     Even though Defendant’s claim may be restated and refined, or recouched as an

ineffective assistance of counsel claim, the claim remains procedurally barred. The

Superior Court is not required to re-examine any claim that received “substantive

7
  Super.Ct.Crim.R. 61(a)(1).
8
  State v. Costango, 2002 WL 234748, at *1 (Del.Super.).
9
  Super.Ct.Crim.R. 61(i)(4).


                                                   3
resolution” at an earlier time simply because the claim is now refined, restated or

relabeled as an ineffective assistance of counsel contention. 10

15.       Third, Defendant’s trial counsel cannot be deemed ineffective for failing to argue

at sentencing for a sentence of anything less than nine years of unsuspended Level V

time, because the parties stipulated to a joint recommendation of a nine year unsuspended

Level V sentence. Defendant’s trial counsel would be in breach of the express terms of

the plea agreement if she attempted to argue for a lesser sentence than that which the

parties both agreed to recommend. 11

16.       As a practical matter, the plea agreement including the joint nine year sentence

recommendation was the product of negotiations between the parties. 12 Defendant does

not have the right to pick and choose the parts of the plea agreement he wants to continue

adhering to, and those aspects (the sentencing aspects) that he wants to change. The plea

agreement, in its entirety, is the plea agreement. If the plea agreement was to be set

aside, it would be set aside in its entirety. All of the charges that were dismissed as part

of the plea agreement would be reinstated, and Defendant would again be habitual

eligible for sentencing on several of the charges, facing up to a life sentence on each of

those charges, if convicted at trial.

17.       It is also important to emphasize that Defendant received a significant benefit by

pleading guilty.        Defendant’s decision to accept the plea offer with a joint

recommendation of nine years of unsuspended Level V time represented a rational choice

given the pending charges, the evidence against him, and the possible sentences he was

facing.

10
   Johnson v. State, 1992 WL 183069, *1 (Del.Super.)
11
   See, January 7, 2015 Plea Agreement.
12
   See, January 7, 2015 Plea Agreement, at pgs. 16-17.


                                                    4
18.    Defendant, having stipulated to a nine year unsuspended Level V sentence, cannot

now seek to undercut that agreement. Defendant cannot now complain that his counsel

was ineffective for not arguing for a lesser sentence than that which the parties, after

extensive negotiations, expressly agreed to jointly recommend. Defendant’s claim is

procedurally barred and without merit.

       For all of the foregoing reasons, Defendant’s Motion for Postconviction Relief

should be denied.



       IT IS SO RECOMMENDED.


                                                                /s/
                                                   Commissioner Lynne M. Parker


oc:    Prothonotary
       Allison S. Mielke, Esquire




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