IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE

ID# 1701001085 &
1701001042

V.

PLEASANT J. HARDY,

Defendant

Submitted: November 3(), 2018
Decided: January 9, 2019

On Defendant’s Motion for Postconviction Relief.
DENIED.

MB

l\/Iatthew B. Frawley, Esquire, Deputy Attorney General, Department of Justice,
Wilmington, Delaware, Attorney for the State.

Pleasant J. Hardy, J ames T. Vaughn Correctional Center, Smyrna, DelaWare, pro se.

COOCH, R.J.

This 9th day of January, 2019, upon consideration of Defendant’s Motion for
Postconviction Relief, it appears to the Court that:

l. On July 5, 2017, Pleasant J. Hardy (“Defendant”) pled guilty to two
counts of Burglary Second Degree, and two counts of Theft Less Than
$1500.l At sentencing, on September 22, 2017, the State moved to
declare Defendant a Habitual Offender pursuant to ll Del. C. § 4214(c)
as to one count of Burglary Second Degree. The motion Was granted
and Defendant Was declared a Habitual Offender as to one count of

 

l Guilty Plea Forrn, State v. Hara’y, ID# 1701001085, D.I. 12 (July 5, 2017).

l

Burglary Second Degree.2 Thereafter, Defendant was sentenced to
eight years unsuspended Level V incarceration as to Count One -
Burglary Second Degree; one year unsuspended Level V incarceration
as to the Count Three - Burglary Second Degree; and twelve months
Level III concurrent probation as to the Counts Two and Four - Theft
Less Than $1500. 3 Defendant did not appeal his sentence to the
Delaware Supreme Court.

Defendant filed a timely pro se Motion for Postconviction Relief on
May 22, 2018.4 This Court ordered Defendant’s prior court-appointed
trial counsel to submit an affidavit addressing ineffective assistance of
counsel allegations raised in Defendant’s motion. 5 This Court also
ordered the State to respond to Defendant’s motion and prior counsel’s
affidavit6 Prior counsel’s affidavit was filed on August 16, 2018. The
State’s Response was filed on September 26, 2018. This Court afforded
Defendant an opportunity to file a Reply to both prior counsel’s
affidavit and the State’s Response on or before November 30, 2018, but

Defendant did not do so.7

In his Motion, Defendant raises four grounds for relief:

Ground one: Denied (me) the right to a speedy trial. The [a]ttorney
who was representing me told me on two seperate [sic] court dates
that we couldn’t move forward because case hadn’t been appointed
a judge.

Ground two: ineffective assistance of counsel. [I was appointed a]
public defender. [The public defender] told me on two court dates
that we couldn’t move [f]orward because a judge hadn’t been
appointed but in all actuality the State was “investigating” my prior
cases in Houston, Texas. [W]asn’t made aware until my last case
review.

Ground three: unfulfilled plea agreement Court Judge s[e]ntenced
the defendant to 5 years level 5 but that wasn’t in the plea agreement

 

2 Sentence Order, D.I. 24, at 1 (Sept. 22, 2017).

3 ]a'. at 1-2.

4 Def.’s Mot. for Postconviction Relief, D.I. 27 (May, 22, 2018).
5 Letter to Counsel, D.I. 31 (July 17, 2018)

6Ia'.

7 See Letter to Counsel, D.I. 31 (permitting Defendant to reply to both prior counsel’s affidavit and
the State’s Response on or before November 30, 2018).

2

The Court asked for a P.S.l but didn’t go with the P.S.l
recommendation[.]

[Ground four:] State failed to inform the defendant whom was
representing himself pro se that he had the right to challenge the
motion to be declared an Habitual Offender. That fact wasn’t listed
in none of the motions that the State forwarded to the defendant8

4, In prior counsel’s affidavit, prior counsel denied grounds one and two,
and avers that ground three is inapplicable to prior counsel’s
representation of Defendant.9 The State responded that each ground
raised by Defendant was procedurally barred by Superior Court
Criminal Rule 61(i)(4). Rule 61(i)(4) prohibits postconviciton relief
when the postconviction claims have been formerly adjudicated.]0 The
State argues Defendant engaged in a lengthy plea colloquy prior to his
guilty plea, and the State likewise presented an “equally-lengthy factual
basis for the plea.”11 As such, the State argues each of Defendant’s
claims were previously adjudicated and procedurally barred.

5. Notwithstanding the procedural deficiencies, the State also addressed
the substantive merits of Defendant’s motion. The State argues that
each claim is without merit. First, the State contends that Defendant’s
speedy trial rights were not denied because there were no continuances
or delays, and Defendant’s trial was ready to begin within five months
from the indictment Second, the State argues that prior counsel was
serving Defendant’s best interests by requiring the State to confirm out-
of-state convictions before subjecting Defendant to a habitual offender
sentence. Thus, “there was nothing ineffective about” prior counsel’s
representation12 Third, the State argues that the Court need not follow
the sentencing recommendation in the plea agreement and that Court
could have lawfully sentenced Defendant to life in prison as an habitual
offender. Lastly, the State argues Defendant was fully aware of the
habitual offender motion, and, as the person in the best position to know
what his criminal history was, had an opportunity to dispute the State’s
motion.

 

8 Def.’s Mot. for Postconviction Relief, at 3.

9 Defense Counsel’s Affidavit in Response to Def.’s Mot., D.I. 32, at 2 (Aug. 16, 2018).
10 Del. Super. Ct. Crim. R. 61(i)(4).

'] State’s Resp. to Def.’s Mot. for Postconviciton Relief, D.I. 33, at 1 (Sept. 26, 2018).
12 State’s Resp., at 2.

Rule 61 is the remedy for defendants “in custody under a sentence of
this court seeking to set aside the judgment of conviction[.]”13 Rule 61
delineates certain “bars to relief” which prevent a defendant from
seeking relief in certain circumstances.14 First, under Rule 61(i)(1), a
motion for postconviction relief “may not be filed more than one year
after the judgment of conviction is final[.]” 15 Defendant filed his
motion eight months after his sentencing His motion his timely.

Although timely, Defendant’s motion is entirely barred under Rule
61(i)(4). Under Rule 61(i)(4) any ground for relief is barred if it “was
formerly adjudicated, whether in the proceedings leading to the
judgment of conviction, in an appeal, in a postconvcition proceeding or
in a federal habeas corpus proceeding[.]”16 It appears to the Court that
each of Defendant’s four grounds were previously adjudicated in the
proceedings leading to his guilty plea and the judgment of conviction.
The Court engaged in a lengthy plea colloquy with Defendant prior to
his guilty plea. Defendant admitted he committed each offense
charged.17 Defendant read, understood, and waived his right to a speedy
trial and his right to a public trial by jury. 18 He stated he understood that
he faced a possible penalty of a mandatory minimum eight years Level
V up to a maximum life in prison, because of his habitual offender
status.19 Defendant acknowledged that he was not promised what his
sentence would be.ZO Defendant was fully apprised by prior counsel of
his right to challenge the State’s habitual offender motion.21 Each of
Defendant’s grounds for postconviciton relief were discussed and
addressed at his plea hearing. Thus, his claims are barred under Rule

61(i)(4).

Nevertheless, the Court will address the substantive merits of
Defendant’s claims. Defendant’s first ground asserts he was denied his
Sixth Amendment right to a speedy trial. The Court finds his claim

 

13 Del. Super. Ct. Crim. R. 61(a)(1).

14 Del. Super. Ct. Crim. R. 61(i).

15 Del. Super. Ct. Crim. R. 61(i)(1).

16 Del. Super. Ct. Crim. R. 61(i)(4)

17 Plea Hearing Transcript, D.I. 30, at 45-47 (July 5, 2017).

18 Id. at 42.
19 Id. at 44_45.
20 Id. at 45.
211¢1. at 13_14.

lacks merit. To ensure the right to a speedy trial is preserved, the Court
considers several factors. These are: “(1) the length of the delay; (2) the
reason for the delay; (3) the defendant's assertion of his right; and (4)
prejudice to the defendant.”22 Defendant was arrested on January 3,
2017, and held on $5,000 secured bail. 23 A February 22, 2017,
scheduling order scheduled Defendant’s trial for July 5, 2017, five
months later.24 This date was not altered by subsequent proceedings
His trial would have occurred on that date had Defendant not pled
guilty. The Court finds no delay in the proceedings Without any delay,
there is no manifest prejudice to Defendant. His claim is without merit.

9. Ground two alleges ineffective assistance of counsel, but is without
merit. When an ineffective assistance of counsel claim is raised in the
context of a guilty plea, the defendant bears the burden to show that
“there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and would have insisted on going to trial.”25
Defendant alleges that prior counsel misinformed him as to why his
case “couldn’t move forward[.]”26 Defendant claims prior counsel did
not inform Defendant that the State was confirming his prior out of state
convictions until Defendant’s final case review on June 19, 2017.27 The
State explained in its Response that it was obtaining certified
convictions records from Texas to confirm Defendant’s out-of-state
convictions truly existed, per defense counsel’s request. Assuming
arguendo that Defendant was unaware of the State’s actions until his
final case review, the Defendant has not shown that but for this alleged
miscommunication he would have not pleaded guilty and instead
insisted on going to trial. 28 The Court cannot identify an error

 

22 Key v. State, 463 A.2d 633, 636 (Del. 1983) (citing Johnson v. State, 305 A.2d 622, 623 (Del.
1973)); see Barker v. Wingo, 407 U.S. 514 (1972).

23 Commitment Order, D.I. 1 (Jan. 11, 2017).

24 Scheduling Order, D.I. 4 (Feb. 22, 2017).

25 Hill v. Lockharl', 474 U.S. 52, 59 (1985); Albury v. State, 551 A.2d 53, 59_60 (Del. 1988).

26 Def.’s Mot. for Postconviction Relief, at 3.

27 Id

28 At the July 5, 2017 hearing, Defendant waived his right to counsel and discharged his prior
counsel before entering into a guilty plea. Plea Hearing Transcript, D.I. 30, at 22, 30. Leading up
to the formal discharge of prior counsel, Defendant discussed the plea agreement with the State on
his own, and thereafter agreed to plead guilty. Id. at 18-19. lt appears to the Court that Defendant
decided to plead guilty entirely on his own, not as a result of any action or fault of prior counsel.

5

committed by prior counsel, and as such Defendant’s second claim is
without merit.

10. Defendant’s third ground challenges his sentence, and is likewise
without merit. The Court is not required to follow the parties’
sentencing recommendations or the recommendation in the presentence
report. “As long as the sentence is within the statutory limits, it may not
be challenged merely because it exceeds the sentence recommendation
contained in the plea agreement.” 29 During the plea colloquy,
Defendant acknowledged he had not been promised anything that was
not reflected on the plea agreement.30 The plea agreement, which
Defendant signed, expressly stated the potential statutory penalty
Defendant faced for each offense.31 Defendant stated he understood
that on Count One he faced a minimum mandatory penalty of eight
years in prison, and could be legally sentenced to life in prison.32 His
sentenced was imposed within those statutory limits, and Defendant has
not offered any evidence that his sentence was grossly disproportionate
to his crimes.33 His claim is without merit.

11. Lastly, Defendant’s challenge to his habitual offender status is without
merit. Defendant alleges that he was not informed that he was permitted
to challenge the State’s habitual offender motion. This assertion is
belied by the fact that at Defendant’s plea hearing prior counsel stated
on the record, in the presence of Defendant, that:

[Defendant] is asking about his Texas stuff that makes him
habitual [Defendant] would still, nevertheless, have an
opportunity to challenge it under any basis that he ascertains
separate from what I think as an attorney. But that all
happens at sentencing Not when you plea, not when you’re
convicted. At a sentencing on a later date.34

 

29 Wingate v. State, 843 A.2d 239 (Table), 2004 WL 692050, at *2 (Del. 2004) (citing Mayes v.
State, 604 A.2d 839, 845 (Del. 1992)).

30 Plea Hearing Transcript, D.I. 30, at 45.

31 Guilty Plea Form, D.I. 12.

32 Plea Hearing Transcript, D.I. 30, at 44-45.

33 Ducote v. State, 2005 WL 1200859, at *3 (Del. May 18, 2005) (rejecting Eighth Amendment
claim of defendant who did not present any evidence suggesting life term was grossly
disproportionate to crime of attempted murder in first degree and who had to be sentenced to life
imprisonment under habitual offender statute).

34 Plea Hearing Transcript, D.I. 30, at 13~14.

The State was not required to explain in further detail what defense
counsel had already articulater explained for Defendant. Defendant
was informed of his right to challenge the State’s habitual offender
motion, but chose to not exercise his right. Therefore, his claim is
without merit.

12. On July 5, 2017, the Court conducted an especially thorough colloquy
to ensure that Defendant truly understood the nature of the proceedings.
Defendant was fully apprised of his constitutional rights. Defendant
stated he understood and waived those rights. The State, defense
counsel, the Court, and the jury were all prepared to begin trial if
Defendant so wished. Defendant instead knowingly and voluntarily
chose not to exercise his right to trial, and opted to plead guilty. As
such, the grounds raised in his postconviction motion are barred as
previously adjudicated Notwithstanding the procedural bar, the Court
further finds Defendant’s claims lack substantive merit.

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

IT IS SO ORDERED.

MJW

Richard R. Cooch, R.J.

Prothonotary
Investigative Services

