State v. Dickinson

• Decision Date: 17 August 2012
• Docket Number: I.D. No. 0901009990A
• Parties: STATE OF DELAWARE v. JOSEPH DICKINSON Defendant
• Court: Delaware Superior Court

STATE OF DELAWARE v. JOSEPH DICKINSON Defendant

I.D. No. 0901009990A

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

Submitted: May 21, 2012

Decided: August 17, 2012

Upon Defendant's Amended Motion for Postconviction Relief.

DENIED.

ORDER

John W. Downs, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.

Michael W. Modica, Esquire, Wilmington, Delaware, Attorney for Defendant.

COOCH, R.J.

This 17th day of August 2012, upon consideration of Defendant's Amended Motion for Postconviction Relief, it appears to the Court that:

1. Defendant Joseph Dickinson ("Defendant") filed this Amended Motion for Postconviction Relief claiming ineffective assistance of counsel and due process violations, asserting that trial counsel's failure to request an Allen v. State accomplice level of liability instruction resulted in an unfair trial caused by incomplete jury instructions. Defendant has failed to meet his burden for both the ineffective assistance of counsel claim and the due process violation. Therefore, Defendant's Motion for Postconviction Relief is DENIED.

2. The key facts are as follows:

In January 2009, a confidential informant told Wilmington Police Detective Paul Ciber that Oscar Johnson was planning to commit a robbery. Because Johnson had not selected the location of the robbery, Ciber and other police officers rented a room at the Fairview Inn and set it up to look as if the occupant was a drug dealer. The informant called Johnson and told him a drug dealer was working out of that room and ... had $25,000. Johnson told the informant to pick him up. Then Johnson called two friends, Charles Thomas and Joseph Dickinson, to join in the planned robbery. Johnson, the confidential informant, Thomas and Dickinson drove in two cars to Haynes Park, where they discussed the plan. Dickinson positioned his car facing Route 13 and waited while Johnson and Thomas, carrying Dickinson's shotgun, put on ski masks and walked to the designated room. At about the time they realized there was nothing to take, the SWAT team arrived and threw a flash grenade. Dickinson saw the flash and tried to drive away, but was arrested at the scene. When the police searched Dickinson's car, they found shotgun shells and the bag used to carry the shotgun.

Dickinson did not testify at trial. He argued that Thomas and Johnson were the ones who committed the crimes and that they testified against Dickinson in return for their pleas. Dickinson did not ask for an accomplice liability instruction. Instead, he asked for an instruction that accomplices' testimony should be viewed with extreme caution....¹

3. Prior to trial, the State offered Defendant a plea agreement that required Defendant to plead guilty to Attempted Robbery Second Degree (a lesser included offense to the lead charge of Attempted Robbery First Degree), Possession of a Firearm During the Commission of a Felony, and Possession of a Destructive Weapon, and to acknowledge that he was eligible to be sentenced as an habitual offender.² In exchange, the State agreed to move to declare Defendant an habitual offender under 11 Del. C. § 4214(a) and torecommend a total sentence not exceeding ten years incarceration on all charges. The proposed ten year sentencing recommendation was instead of sentencing pursuant to 11 Del. C. § 4214(b), which mandated a life sentence without the possibility of parole.³ If convicted of the serious charges, Defendant was potentially eligible to be sentenced under 11 Del. C § 4214(b). Defendant rejected the plea offer before two judges at separate times; at the final case review, trial counsel reported Defendant's unwillingness to accept the plea offer, and on the morning of trial, before the jury was sworn, Defendant personally stated his voluntary, knowing, and intelligent rejection of the plea offer during an extensive colloquy with the trial judge.

4. The jury found Defendant guilty of Attempted Robbery First Degree, Possession of a Firearm During the Commission of a Felony, Burglary Second Degree, Possession of a Destructive Weapon, and Conspiracy Second Degree. The State subsequently moved to declare Defendant an habitual offender pursuant to 11 Del. C. § 4214(b) on the charge of Attempted Robbery First Degree. Accordingly, Defendant was sentenced to life imprisonment on that charge.

5. Defendant appealed to the Delaware Supreme Court contending that the trial court erred by failing sua sponte to include an accomplice "level of liability" instruction⁴ pursuant to 11 Del. C. § 274.⁵ Neither Defendant nor the State requested a level of liability instruction, or requested an instruction on any lesser included offenses. The Supreme Court affirmed Defendant's conviction in December 2010, holding that the trial court was not required sua sponte to instruct on an accomplice's level of liability.⁶ The Supreme Court noted that it was "apparent that Dickinson made a strategic decision not to request the accomplice 'level of liability' instruction" based on Defendant's use of an "all or nothing" defense theory at trial.⁷

6. Defendant filed this Amended Motion for Postconviction Relief, seeking a fact finding hearing as well as a new trial. Defendant cites Allen v. State as the primary support for his ineffective assistance of counsel claim.⁸ The defendant in Allen had been convicted as an accomplice in three separate burglaries.⁹ The defendant appealed to the Delaware Supreme Court asserting that the trial court had erred by refusing the defendant's request to instruct the jury pursuant to 11 Del. C. § 274.¹⁰ The Court held that, on those charges in the criminal code that are divided into degrees, the defendant upon request was entitled to an instruction requiring the jury to make an individualized determination regarding the defendant's accountability for the codefendants gun possession.¹¹Allen requires that when a defendant is charged as an accomplice, a defendant upon request is entitled to a level of liability instruction for each charged offense that is divisible into degrees. The Allen Court thus reversed the conviction.

7. In the instant Motion, Defendant first contends that trial counsel's failure to request an accomplice level of liability jury instruction constituted ineffective assistance of counsel, whether the error resulted from counsel's unawareness of current law or from a strategic decision.¹² Defendant asserts that "if counsel made a strategic decision to decline the instruction, his strategy was inherently unreasonable. Defendant was facing a mandatory life sentence if convicted of Attempted Robbery First Degree. ..."¹³ Defendant argues that there is no record that Defendant was advised by his trial counsel of the option to request the instruction, or that Defendant otherwise knowingly, voluntarily, and intelligently waived his right to the instruction.¹⁴ Furthermore, Defendant now alleges that he would have requested the instruction because, if the jury had convicted him of the lesser included offense of Attempted Robbery Second Degree, the instruction could have potentially shielded Defendant from the mandatory life sentence.

8. Defendant also relies upon Erskine v. State, decided shortly after Allen, which restated the proposition that an accomplice may be guilty of a less serious offense than other criminal participants.¹⁵ "An accomplice 'is guilty of an offense committed by another person when ... intending to promote or facilitate the commission of the offense the [accomplice] ... aids ... or attempts to aid the other person in ... committing it...."¹⁶

9. In Defendant's affidavit in support of his Amended Motion for Postconviction Relief, he states:

I, Joseph Dickinson, after being duly sworn, hereby states as follows:

1. I am the Petitioner in the attached Rule 61 Motion for Postconviction Relief;

2. My attorney, John Malik, did not explain to me what a Section 274 Level of Liability jury instruction was, that I had the right to elect that instruction, and the significance of such an instruction to the potential outcome(s) of my trial.

3. Mr. Malik did not explain to me that a Section 274 Level of Liability instruction could have led to a Robbery 2nd Degree (instead of Robbery 1st Degree) and that a conviction for Robbery 2nd Degree would not have exposed me to sentencing as an habitual offender

under 11 Del. C. § 4214(b).

4. Mr. Malik did not explain to me that he was not seeking a Section 274 Level of Liability instruction, or why he made this decision.

5. If I had been advised of what a Section 274 Level of Liability instruction was, and its significance in avoiding conviction requiring me to be sentenced to a mandatory life sentence under 11 Del. C. § 4214(b), then I would have opted for the judge to give such an instruction. (emphasis added)¹⁷

10. Secondly, Defendant contends that trial counsel's failure to request an accomplice level of liability jury instruction violated Defendant's due process right to a fair trial. Defendant argues that absent the level ofliability instruction, the jury instructions were incomplete, and therefore violated due process.¹⁸

11. In response to Defendant's ineffective assistance of counsel claims, his trial counsel has averred, in pertinent part:

After I was retained as counsel, Mr. Dickinson advised that he did not wish to accept a plea, but wished to proceed to trial.

Prior to trial, counsel had advised Mr. Dickinson of the State's plea offer. The plea offer required Mr. Dickinson to plead guilty to Attempted Robbery Second Degree, Possession of a Firearm During the Commission of a Felony, and Possession of a Destructive Weapon and to acknowledge that he was eligible to be sentenced as an habitual offender pursuant to 11 Del. C. § 4214(b) based upon his prior convictions of Burglary Second Degree in 1992, Robbery Second Degree in 1995, and Robbery First Degree in 1998. In exchange for Mr. Dickinson's guilty plea, the State agreed not to file a motion to

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