           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                     IN AND FOR NEW CASTLE COUNTY


STATE OF DELAWARE,                     )
                                       )
                                       )
               v.                      )     ID No. 1211015050
                                       )
                                       )
JERMAINE CARTER,                       )
                                       )
         Defendant.                    )


                             MEMORANDUM OPINION


         In 2009, Defendant entered a plea of guilty but mentally ill to one count

of rape in the first degree, one count of rape in the second degree, one count of

robbery in the first degree, two counts of kidnapping in the second degree and

one count of possession of a firearm during the commission of a felony. The

court found him to be guilty but mentally ill and sentenced him to life plus 35

years.     Defendant committed several crimes while incarcerated serving this

sentence, and plead guilty to one count of assault in a detention facility, for

which he was sentenced to eight years as a habitual offender. He now claims

that his representation in connection with his charge of assault in a detention

facility was ineffective. He does not challenge the convictions leading to his life

plus 35 year sentence.

         This is Defendant’s first Rule 61 motion and it is timely. Consequently,

this court appointed counsel for him. On August 21, 2014, appointed counsel

moved to withdraw because, in his view, there are no meritorious issues raised
in the proceedings leading to Defendant’s latest conviction and sentence. After

a careful study of the record the court agrees.

      In his pro se Rule 61 motion Defendant seems to make two arguments.

First he argues his trial counsel was ineffective because counsel told him that if

he wished to accept the state’s plea offer he should notify counsel’s secretary.

(Counsel was out of town at the time.) In this connection he also contends that

his trial counsel violated his obligation of confidentiality by telling counsel’s

secretary about his case.        Second, Defendant argues that counsel was

ineffective because he failed to develop mitigating evidence which could be used

at sentencing.

      The contention that trial counsel was somehow ineffective because

counsel asked Defendant to notify his secretary if Defendant wished to accept

the plea offer is frivolous. The notion that trial counsel violated his obligation

of confidentiality by telling counsel’s secretary about the case is likewise

frivolous.   Defendant also theorizes that because of these events “it was

presumptively impossible for the decision to accept the plea offer to have been

knowingly and voluntarily made.” The record conclusively established that his

plea was knowing, intelligent and voluntary. For example, at his plea cooloquy

Defendant acknowledged that:

                 •   He had no difficulty in understanding what was happening

                     in court.

                 •   He was not under the influence of drugs, alcohol or

                     medications.



                                        2
               •   His trial counsel explained the Plea Agreement and Truth-in-

                   Sentencing forms and that he had an opportunity to ask any

                   questions he had about them.

               •   He understood those forms.

               •   He understood that by entering a plea of guilty there would

                   be no trial and that he would waive his constitutional rights,

                   which he agreed were explained to him and he understood.

               •   The State would file a petition to have him declared an

                   habitual offender, and if the court granted that motion he

                   would be sentenced to a minimum of eight years and a

                   maximum of another life sentence.

               •   The court was not obligated to accept the State’s sentence

                   recommendation of the minimum of eight years (which, in

                   fact the court accepted).

               •   No one offered him anything in exchange for his plea and no

                   one tried to force or coerce him into entering into the plea.

Near the conclusion of the plea colloquy Defendant admitted committing the

offenses. In this regard, he specifically admitted that John Ryan (the victim)

was a correctional officer and that he threw urine and feces on Mr. Ryan. In

light of this, there is no plausible argument that Defendant’s plea was not

knowing, intelligent and voluntary.




                                        3
        Defendant’s second contention is equally without merit. In Strickland v.

Washington 1 the United States Supreme Court set out a two-part test to

determine whether a defendant was denied effective assistance of counsel. 2 A

defendant must demonstrate both that (1) the performance of his counsel was

objectively unreasonable and (2) there is a reasonable probability that, but for

his counsel's deficient performance, the result of the proceeding would have

been different. 3     In many cases “it is easier to dispose of an ineffectiveness

claim on the ground of lack of sufficient prejudice.” 4 This is such a case.

Assuming trial counsel failed to develop mitigating evidence, that assumed

failure could not have prejudiced Defendant because the court imposed only

the minimum mandatory sentence.

        For the forgoing reasons, appointed Rule 61 counsel’s motion to

withdraw is GRANTED and Defendant’s motion for post conviction relief is

DENIED.



                                              ____________________________
Date: September 23, 2014                            John A. Parkins, Jr.
                                                    Superior Court Judge

oc:     Prothonotary

cc:     Daniel B. McBride, Esquire, Wilmington, Delaware
        Theopalis K. Gregory Sr., Esquire, Wilmington, Delaware
        Jermaine Carter, SBI 419947, JTVCC, Smyrna, Delaware



1   466 U.S. 668 (1984).
2
    Id. at 687.
3
    Id.
4   Id. at 697.


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