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Hamby v. State10/31/2005
Submitted: August 30, 2005
Before STEELE, Chief Justice, HOLLAND and BERGER, Justices
ORDER
This 31st day of October 2005, upon consideration of the appellant's opening brief and the appellee's motion to affirm pursuant to Supreme Court Rule 25(a), it appears to the Court that:
(1) The defendant-appellant, Daniel C. Hamby, filed an appeal from the Superior Court's May 2, 2005 order denying his motion for post-conviction relief pursuant to Superior Court Criminal Rule 61. The plaintiff-appellee, the State of Delaware, has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Hamby's opening brief that the appeal is without merit. We agree and affirm.
(2) In 2004, Hamby pleaded guilty to Felony Shoplifting and an unrelated charge of Felony Driving Under the Influence ("DUI"). On the shoplifting conviction, he was sentenced to eighteen months incarceration at Level V. On the DUI conviction, he was sentenced to five years incarceration at Level V, to be suspended after six months for decreasing levels of probation. Hamby did not file a direct appeal of his convictions and sentences.
(3) In this appeal, Hamby claims that: a) his guilty plea was coerced because his counsel failed to investigate the wholesale value of the shoplifted goods in order to determine whether he should have been charged with a misdemeanor rather than a felony; b) his guilty plea was coerced because his counsel erroneously told him he was subject to sentencing as an habitual offender; c) his eighteen-month sentence was improper because it exceeded the SENTAC guidelines and was greater than his co-defendant's sentence; and d) the Superior Court abused its discretion by denying his motion for post-conviction relief.
(4) Hamby's first two claims are that his counsel's ineffective assistance resulted in a coerced guilty plea. In order to prevail on a claim of ineffective assistance of counsel in the context of an allegedly coerced guilty plea, a defendant must show that his counsel's representation fell below an objective standard of reasonableness and that, but for his counsel's unprofessional errors, there is a reasonable probability that he would not have pleaded guilty, but would have insisted on proceeding to trial. A defendant asserting a claim of ineffective assistance is required to make concrete allegations of cause and actual prejudice or risk summary dismissal.
(5) Hamby has demonstrated neither cause nor actual prejudice with respect to his first claim of ineffective assistance. While he contends that the wholesale, rather than the retail, value of the shoplifted goods should have been utilized to determine whether he would be charged with a felony or a misdemeanor, he cites no legal support for that contention. Under Delaware law, whenever the value of property is determinative of a defendant's guilt, "value means the market value of the property at the time and place of the crime." There was, thus, no basis for Hamby's counsel to object to Hamby being charged with a felony and no prejudice to Hamby.
(6) Hamby also has failed to demonstrate cause and actual prejudice with respect to his second claim of ineffective assistance. The transcript of the sentencing hearing reflects that, in accordance with the original plea agreement, Hamby was to be sentenced on the shoplifting conviction as a habitual offender. During the course of the sentencing hearing, however, the Superior Court judge noticed that the State had failed to support its request that Hamby be declared a habitual offender with the requisite number of predicate offenses. After a sidebar discussion with counsel, th
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