                                  SUPERIOR COURT
                                        OF THE
                               STATE OF DELAWARE

E. SCOTT BRADLEY                                                      1 The Circle, Suite 2
               JUDGE                                             GEORG ETOW N, DE 19947


                                  January 27, 2016

STATE MAIL - S980C
Jason A. Kashner
SBI # 00485397
Sussex Correctional Institution
P.O. Box 500
Georgetown, DE 19947

             RE: State of Delaware v. Jason A. Kashner
                 Def. ID. No. 1410006237

                    Date Submitted: November 19, 2015

Dear Mr. Kashner:

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

to Robbery in the First Degree, Possession of a Firearm During the Commission of

a Felony, and Endangering the Welfare of a Child on March 2, 2015. The terms of

the plea deal you accepted from the State called for a sentence of ten-and-one-half

years at supervision Level V, followed by six months of probation. That is the

sentence I gave you. The charges arose out of a home invasion and burglary that you

committed with three other people of a residence in Dagsboro, Delaware. You were

on probation after serving six years in prison for a similar robbery at the time of the

home invasion and burglary. This is your first Motion for Postconviction Relief and
it was filed in a timely manner.

      You allege that 1) your counsel was ineffective because he allowed you to

plead guilty to Possession of a Firearm During the Commission of a Felony even

though your co-defendant, who allegedly possessed the gun, had the weapon charge

against him dropped and received a shorter sentence than you, and 2) your guilty plea

was coerced because you did not get the plea offer you believe you deserved as

compared to your co-defendant, who only had to serve three years in jail. Your

counsel has submitted an affidavit responding to your allegations. Given the nature

of your allegations, I have concluded that there is no need to appoint an attorney for

you and that a hearing is not necessary. In order to evaluate your allegations, I have

to first determine if your counsel’s representation left you with no choice but to plead

guilty and, if it did not, whether you made a knowing, intelligent and voluntary

waiver of your rights when you pled guilty.

                                   DISCUSSION

I. Ineffective Assistance of Counsel

      You allege that your counsel was ineffective because he allowed you to plead

guilty to the charge Possession of a Firearm During the Commission of a Felony

while your co-defendant, who allegedly possessed the gun, got a similar charge

dismissed as part of his plea deal and received a shorter sentence than you. The

                                           2
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

       Your co-defendant’s plea deal and sentence are irrelevant. Your circumstances

were different from those of your co-defendant. You were on probation at the time

you committed these offenses. You had just finished serving six years in jail for

committing a similar offense. Furthermore, a defendant has no constitutional right


       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
to a plea deal.5 The State did not have to offer you a plea deal, and you did not have

to accept the State’s offer. Your counsel was not ineffective because he did not get

you a plea deal that was as good as your co-defendant’s plea deal. The choice to take

the plea was your choice and your’s alone. Your counsel’s representation of you did

not leave you with no choice but to plead guilty. This allegation is without merit.

II. Coerced Guilty Plea

       You allege that your guilty plea was coerced. You state that you were offered

two separate plea deals. One plea offer was for a minimum of eight years of Level

V time with a pre-sentence investigation. The other plea offer was for ten-and-one-

half years of Level V time with no pre-sentence investigation. You allege that your

counsel advised you to accept the plea offer with no pre-sentence investigation

because he believed you would have received a longer sentence if you took the other

plea offer with a pre-sentence investigation. Your counsel acknowledges that he

advised you to take the offer with no pre-sentence investigation because he feared

you would have received a longer sentence if a pre-sentence report was prepared and

reviewed by a judge. You also allege that you never would have accepted your plea

deal if you knew your co-defendant only received three years as part of his plea deal.



       5
        Dickson v. State, 32 A.3d 988 (Del. 2011)(TABLE) citing Washington v. State, 844
A.2d 293, 295 (Del. 2004).

                                             4
You fail to even hint at a coerced guilty plea. The only thing you have successfully

alleged is “buyer’s remorse.” The following exchange took place during your plea

colloquy:

      THE COURT: I understand you have decided to plead guilty to charges
      of robbery in the first degree, possession of a firearm during the
      commission of a felony, and endangering the welfare of a child. Is that
      what you have decided to do?

      THE DEFENDANT: Yes.

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

      THE DEFENDANT: Yes.

      THE COURT: Do you understand the maximum period of incarceration
      you face for each one of those offenses?

      THE DEFENDANT: Yes.

      THE COURT: Do you understand the minimum sentence you must
      receive on the robbery and the weapons offense?

      THE DEFENDANT: Yes.

      THE COURT: Do you understand you will have to pay restitution as part of
      your sentence?

      THE DEFENDANT: Yes.

      THE COURT: You said he was already found in violation of his
      probation, [counsel]?

      [Your Counsel]: We already admitted, yes, Your Honor.

                                         5
THE COURT: All right. Sir, you have certain rights; those rights are
listed on the Truth-in Sentencing Guilty Plea Form which you have
already signed. Have you discussed each and every one of those rights
with [counsel]?

THE DEFENDANT: Yes.

THE COURT: Do you understand each and every one of those rights?

THE DEFENDANT: Yes.

THE COURT: Do you understand that by taking this plea you are waiving all
of those rights?

THE DEFENDANT: Yes.

THE COURT: Do you understand there won’t be a trial now?

THE DEFENDANT: Yes.

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

THE DEFENDANT: No.

THE COURT: Did anybody promise you anything for it?

THE DEFENDANT: No.

THE COURT: Did you commit the three offenses you are pleading guilty to?

THE DEFENDANT: Yes.

THE COURT: Are you satisfied with you attorney’s representation of you?

THE DEFENDANT: Yes.



                                 6
     THE COURT: Are you sure that this is how you wish to resolve the charges
     against you?

     THE DEFENDANT: Yes.6

     On the Truth-in-Sentencing Guilty Plea Form the following questions were

asked and answered:

           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;
            (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


     6
         Plea Transcript at 4-6 (March 2, 2105).

                                                   7
      assistance of a lawyer?

                You answered “yes.”

These are the appropriate responses for someone who has knowingly, intelligently,

and voluntarily accepted the State’s plea offer and decided to plead guilty. If you felt

that you had been coerced to plead guilty, then you should have answered “yes” when

I asked you if anybody had forced you to take the plea and you should have answered

“yes” on the same question on the Truth-in-Sentencing Guilty Plea Form. You did

not. You are bound by your answers in open court.7 When your counsel told you that

you faced the possibility of a longer sentence if you accepted the plea offer with a

pre-sentence investigation, he was giving you excellent advice. Judges routinely

accept negotiated pleas, reasoning that the prosecutor and the defense counsel are the

most knowledgeable about the facts underlying the charges and the defendant’s

history and are therefore in the best position to arrive at an appropriate sentence.

However, once a pre-sentence investigation is ordered and a report prepared, the

judge is armed with all of the information necessary to render an appropriate

sentence. This often does not favor a defendant. I conclude now, as I did when I

took your plea, that it was made knowingly, intelligently and voluntarily. This

allegation is without merit.




      7
          Somerville v. State, 703 A.2d 629, 636 (Del. 1997).

                                                 8
                             CONCLUSION

     Your Motion for Postconviction Relief is DENIED.

     IT IS SO ORDERED.

                                        Very truly yours,

                                        /s/ E. Scott Bradley

                                        E. Scott Bradley

ESB/sal
cc: Prothonotary
     Counsel




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