Windsor v. State ( 2014 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
WILLIAM T. WINDSOR, III, §
§
Defendant-Below, § No. 10, 2014
Appellant, §
§
v. § Court Below: Superior Court
§ of the State of Delaware,
STATE OF DELAWARE, § in and for Sussex County
§ Cr. ID 1212009736
Plaintiff-Below, §
Appellee. §
Submitted: June 27, 2014
Decided: August 28, 2014
Before STRINE, Chief Justice, HOLLAND, and RIDGELY, Justices.
ORDER
This 28th day of August 2014, upon consideration of the appellant's
Supreme Court Rule 26(c) brief, the State’s response, and the record below,
it appears to the Court that:
(1) On February 18, 2013, a grand jury indicted William T.
Windsor, III, on three counts of rape in the second degree, two counts of
continuous sexual abuse of a child, ten counts of sexual abuse of a child by a
person in a position of trust in the first degree, three counts of rape in the
fourth degree, ten counts of sexual solicitation of a child, eighty-seven
counts of sexual abuse of a child by a person of trust in the second degree,
forty-three counts of unlawful sexual contact in the second degree, and two
counts of endangering the welfare of a child. The victims (“Victim 1” and
“Victim 2”) were daughters of Windsor’s girlfriend.
(2) Windsor moved for a bill of particulars, to sever the charges
related to the two victims, and to suppress his inculpatory statement to the
police. The Superior Court granted the motion to sever. The parties agreed
that the State would not use Windsor’s statement after the one hour and
twenty-five minute mark of the police interview at trial and the Superior
Court denied the motion to suppress.
(3) At an office conference on September 5, 2013, the Superior
Court directed the State to consider reducing the number of charges it
presented at trial.1 The State then requested that the Superior Court
reconsider severance if the number of charges was reduced and the Superior
Court indicated that it would do so.2
(4) On September 9, 2013, the morning of jury selection, the State
offered an amended indictment reducing the number of charges involving
Victim 1 from 151 counts to twelve counts and indicated it had a draft
amended indictment reducing the number of charges against Victim 2 from
1
Appendix to Appellant’s Non-Merit Brief at A52-54.
2
Id. at A59.
2
nine counts to eight counts.3 The State also sought to rejoin the charges
involving both victims so there could be one trial instead of two.4 The State
indicated it would not oppose a continuance if Windsor was not prepared to
proceed to trial that day on the charges against both victims.5 The Superior
Court denied the request for rejoinder of the charges and held that trial
would proceed the next day, as originally scheduled, on the twelve counts
involving Victim 1.6
(5) Later that same day, Windsor pled guilty to one count of rape in
the second degree in the case involving Victim 1 and nolo contendere to
continuous sexual abuse of a child in the case involving Victim 2. Before
accepting his plea, the Superior Court conducted a lengthy colloquy with
Windsor. During the colloquy, Windsor stated under oath that: (i) he had
freely and voluntarily decided to plead guilty to rape in the second degree
and nolo contendere to continuous sexual abuse of a child; (ii) he had not
been promised anything that was not stated in the written plea agreement;
(iii) nobody had forced or threatened him to enter the plea; (iv) he
3
Id. at A65.
4
Id. at A65-66.
5
Id. at A69.
6
Id. at A75.
3
understood that by entering the plea there would not be a trial and that he
would be waiving several constitutional rights, including the right to be
presumed innocent until the charges were proven beyond a reasonable doubt
and the right to hear and question witnesses; and (v) he understood that he
could receive a total maximum penalty of fifty years of incarceration.7 After
pleading guilty, Windsor sent two letters to the Superior Court inquiring
about the substance of the September 5, 2013 office conference.
(6) The sentencing hearing took place on December 13, 2013.
After the Superior Court heard statements from Windsor’s counsel and
relatives, Windsor asked the Superior Court if he could make a Superior
Court Criminal Rule 32(d) (“Rule 32(d)”) motion.8 Under Rule 32(d), the
court may permit withdrawal of a guilty plea or plea of nolo contendere
upon a showing by the defendant of any fair and just reason, if the defendant
moves to withdraw his plea before imposition of the sentence. Windsor’s
counsel did not file a Rule 32(d) motion before the hearing and indicated
that he did not know Windsor was going to make such a request at the
hearing.9 The Superior Court informed Windsor:
7
Id. at A115-26.
8
Id. at A139.
9
Id. at A140, 150.
4
You know, if you wanted to do such a thing, one minute before
the sentencing is not the time to do it. It is required by the
Court that there are motions to be filed. The lawyer makes the
motion. It is in writing, so something of that nature would have
to fill that requirement, and that has not happened.
And the second thing is that under the law there is–on this
record, on this presentence report, on this plea of guilty, the
evidence of guilt with respect to [Victim 1] is overwhelming. I
understand that you pled nolo contendere with respect to the
charge as to [Victim 2]. I have reviewed the record and that is
overwhelming as well. You admitted your guilt as to [Victim
1] with the detective, and there is absolutely–as far as I am
concerned, what you are attempting to do is a dilatory tactic. It
is completely out of bounds, and I am not going to hear it.10
(7) After hearing statements from the State and the victims, the
Superior Court found there were aggravating factors, including vulnerability
of the victims and lack of remorse. The Superior Court sentenced Windsor
as follows: (i) on rape in the second degree, to twenty-five years of Level V
imprisonment, suspended after twenty years for decreasing levels of
supervision; (ii) on continuous sexual abuse of a child, to twenty-five years
of Level V supervision, suspended after two years for decreasing levels of
supervision. This is Windsor’s direct appeal.
(8) On appeal, Windsor’s appellate counsel (“Counsel”) filed a
brief and a motion to withdraw under Supreme Court Rule 26(c) (“Rule
26(c)”). Counsel asserts that, based upon a complete and careful
10
Id. at A140-41.
5
examination of the record, there are no arguably appealable issues. By
letter, Counsel informed Windsor of the provisions of Rule 26(c) and
provided Windsor with a copy of the motion to withdraw and the
accompanying brief. Counsel also informed Windsor of his right to identify
any points he wished this Court to consider on appeal. Windsor has raised
several issues for this Court’s consideration. The State has responded to the
issues raised by Windsor and moved to affirm the Superior Court’s
judgment.
(9) When reviewing a motion to withdraw and an accompanying
brief, this Court must: (i) be satisfied that defense counsel has made a
conscientious examination of the record and the law for arguable claims; and
(ii) conduct its own review of the record and determine whether the appeal is
so totally devoid of at least arguably appealable issues that it can be decided
without an adversary presentation.11
(10) The issues Windsor raises on appeal may be fairly summarized
as follows: (i) the Superior Court erred in refusing to let him present the
grounds for a Rule 32(d) motion to withdraw his guilty plea; (ii) the sentence
was outside statutory guidelines, resulted from judicial bias and prejudice,
11
Penson v. Ohio, 488 U.S. 75, 83 (1988); Leacock v. State, 690 A.2d 926, 927-28 (Del.
1996).
6
exceeded the parties’ “outside oral agreement,”12 and constituted cruel and
unusual punishment under the Eighth Amendment; (iii) his Sixth
Amendment right to confrontation was violated and he was deprived of due
process by the Superior Court limiting the length of his trial to three days;
and (iv) there was prosecutorial misconduct. We address these in turn.
(11) First, the Superior Court did not err by refusing Windsor’s tardy
pro se request to bring a motion to withdraw his guilty plea. Rule 47 of the
Superior Court Criminal Rules states that the Superior Court “will not
consider pro se applications by defendants who are represented by counsel
unless the defendant has been granted permission to participate with counsel
in the defense.”13 At the time of the sentencing hearing, Windsor was
represented by counsel and had not been granted permission to participate
with his counsel in his defense. Only Windsor’s counsel could act on
Windsor’s behalf in the Superior Court.14 Windsor’s counsel did not file a
Rule 32(d) motion before the sentencing hearing and indicated at the hearing
that he did not know Windsor was going to seek to withdraw his guilty plea.
12
Opening Brief, Exhibit A at 6.
13
Super. Ct. Crim. R. 47. See also In re Haskins, 551 A.2d 65, 66 (Del. 1988) (stating
Superior Court had no duty to consider pro se motions filed by criminal defendant
represented by counsel).
14
Haskins, 551 A.2d at 67.
7
Absent the endorsement of his counsel, Windsor’s attempt to withdraw his
guilty plea under Rule 32(d) was a legal nullity.15 Thus, the Superior Court
was not required to consider Windsor’s last minute attempt to make a pro se
Rule 32(d) motion. That the Superior Court acted within its discretion is
also reinforced by the extensive colloquy that the Superior Court had with
Windsor before accepting his guilty plea. Although Windsor may have
sought to withdraw his guilty plea based on a supposed promise that he
would receive a twelve year sentence, the written plea agreement and plea
colloquy were clear and to the contrary. The plea agreement, signed by
Windsor, expressly stated that the maximum penalty for the offenses was
fifty years incarceration.16 During the plea colloquy, Windsor stated that he
understood each offense was punishable by two to twenty-five years of
incarceration and that the maximum penalty he could receive was up to fifty
years of incarceration, of which twelve years was a minimum-mandatory
sentence.17
15
Chavous v. State, 953 A.2d 282, 286 (Del. 2008) (prosecutor’s belief that defendant
had breached plea agreement by bringing pro se motion to withdraw guilty plea was
premature because motion was legal nullity until it was endorsed by defendant’s
counsel).
16
Superior Court Docket Entry 32.
17
Appendix to Appellant’s Non-Merit Brief at A119-20.
8
(12) Second, Windsor’s challenges to his sentence are also without
merit. “[A]ppellate review of sentences is extremely limited” in Delaware.18
Appellate review “generally ends upon determination that the sentence is
within the statutory limits prescribed by the legislature.”19 Windsor’s
sentence is within the statutory limits. Rape in the second degree and
continuous sexual abuse of a child are both Class B felonies, so the Superior
Court could impose sentences of up to twenty-five years incarceration for
each crime.20 To the extent Windsor claims his sentence violated sentencing
guidelines, it is settled that the Delaware Sentencing Accountability
Commission Guidelines are voluntary and non-binding.21 A defendant has
no legal or constitutional right to appeal a statutorily authorized sentence
simply because it does not conform to guidelines established by the
Sentencing Accountability Commission.22 The Superior Court found
aggravating factors, including the vulnerability of the victims and Windsor’s
lack of remorse, weighed in favor of a greater sentence.
18
Mayes v. State, 604 A.2d 839, 842 (Del. 1992).
19
Ward v. State, 567 A.2d 1296, 1297 (Del. 1989).
20
11 Del. C. §§ 772, 776, 4205(b)(2).
21
Mayes, 604 A.2d at 845.
22
Id.
9
(13) As far as Windsor’s claim that the Superior Court demonstrated
bias and prejudice by referring to his physical size compared to the victims
and his use of economic pressure on the victims and their mother, Windsor
does not contend that either of those statements was false or based on false
information. And each was a case-specific factor that rationally bore on the
sentence Windsor should receive. The Superior Court imposed the sentence
after receiving the presentence investigation as well as materials submitted
by Windsor’s relatives, reviewing the record, and hearing statements from
Windsor’s counsel, Windsor’s family members, Windsor, the State, and the
victims. The record reflects that the sentence was based on the nature of
Windsor’s crimes and does not support Windsor’s claims of bias and
prejudice.
(14) Likewise, Windsor’s contention that the sentence exceeded an
“outside oral agreement” with the State for a twelve year sentence is
contradicted by the plea agreement and the plea colloquy. The plea
agreement, signed by Windsor, expressly stated that the offenses were
subject to a maximum consecutive incarceration of fifty years and that
Windsor was not promised a particular sentence.23 During the plea colloquy,
Windsor stated that he had not been promised anything that was not
23
Superior Court Docket Entry 32.
10
reflected in the plea agreement and that he understood each offense was
punishable by two to twenty-five years of incarceration.24 The sentence
imposed was within statutory limits and Windsor has not offered any
evidence suggesting that his sentence was grossly disproportionate to his
crimes.25 Thus, his conclusory Eighth Amendment claim, like his other
challenges to his sentence, is without merit.
(15) Third, Windsor’s claims that he was denied his right to confront
witnesses under the Sixth Amendment and that a three day trial would
deprive him of due process were not raised in the proceedings below.
Therefore, those claims are waived absent plain error.26 An error is plain
when it is “so clearly prejudicial to substantial rights as to jeopardize the
fairness and integrity of the trial process.”27 There is no plain error here.
Windsor does not explain how his right to confront witnesses was violated
and there is no indication in the record that he was deprived of this right. If
Windsor had proceeded to trial, his counsel would have had the opportunity
24
Appendix to Appellant’s Non-Merit Brief at A115, A119.
25
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).
26
Supr. Ct. R. 8; Harris v. State, 968 A.2d 32, 35 (Del. 2009).
27
Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
11
to cross-examine the State’s witnesses. Windsor also fails to explain why a
three day trial was too short for his counsel to call witnesses or present
evidence and does not offer any evidence suggesting he could not have
presented an effective defense within the time allotted. Accordingly, both of
these claims are without merit.
(16) Fourth, Windsor seems to claim that the prosecution engaged in
misconduct by improperly consolidating the indictment to bring the cases
involving Victim 1 and Victim 2 together, bringing multiple and duplicative
charges, and coercing him into pleading guilty by seeking to rejoin the cases
against Victim 1 and Victim 2. Windsor also complains that he was never
shown the discovery or other materials. Windsor did not object to the
alleged prosecutorial misconduct below, so we also review these claims for
plain error.28
(17) Windsor cites no legal authority in support of the proposition
that an indictment can only charges offenses relating to one victim. “Two or
more offenses may be charged in the same indictment or information in a
separate count for each offense if the offenses charged are of the same or
similar character….”29 The record also does not support Windsor’s claim
28
Supr. Ct. R. 8; Harris v. State, 968 A.2d at 35.
29
Super. Ct. Crim. R. 8(a).
12
that he was deprived of notice and the opportunity to challenge the
“consolidated” charges. In any event, the Superior Court granted Windsor’s
motion to sever the Victim 1 charges from the Victim 2 charges. The State
moved to rejoin the Victim 1 and Victim 2 charges after reducing the
number of charges against both victims as directed by the Superior Court,
but the Superior Court denied that motion. Thus, it is plain that Windsor had
notice and opportunity to challenge the “consolidation” of charges involving
Victim 1 and Victim 2.
(18) Windsor makes a conclusory claim that the State engaged in
misconduct by bringing multiple, duplicative charges against him, but fails
to identify the counts of the indictment that he contends are based on the
same offense. A person who commits multiple sexual assaults on the same
victim may be convicted and punished for each separate act.30 Windsor was
originally charged with 151 counts involving Victim 1 and nine counts
involving Victim 2, but those counts were later reduced to twelve counts
involving Victim 1 based on multiple sexual acts occurring over a four year
period and eight counts involving Victim 2 based on multiple sexual acts
occurring over a two year period. Windsor has not shown that the charges in
the indictment were unlawfully duplicative.
30
Feddiman v. State, 558 A.2d 278, 288 (Del. 1989).
13
(19) Windsor also repackages his claim by arguing that the rejoinder
coerced him into pleading guilty. This claim is entirely without merit.
Windsor stated under oath at his plea colloquy that no one had threatened or
forced him to plead guilty and that he freely and voluntarily pled guilty to
rape second degree and nolo contendere to continuous sexual abuse of a
child.31 Absent clear and convincing evidence to the contrary, Windsor is
bound by these statements.32 A claim of coercion in the plea bargaining
process can only be substantiated if the State threatens to take action or takes
action that is not legally authorized.33 Windsor fails to explain why it was
improper at all, much less coercive, for the State to move to rejoin the
Victim 1 and Victim 2 cases after reducing the number of charges involving
each of the victims as urged by the Superior Court. In any event, the
Superior Court denied the State’s motion to rejoin. Windsor was left to
proceed to trial on twelve charges involving one victim, not a trial involving
both victims with little notice as he appears to suggest.
(20) Windsor also claims that he accepted the plea bargain because
he was not informed that the number of charges had been reduced and that
31
Appendix to Appellant’s Non-Merit Brief at A115-16.
32
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
33
Albury v. State, 551 A.2d 53, 61 (Del. 1988).
14
the State’s motion to rejoin the charges involving both victims was denied.
To the extent Windsor is attempting to bring an ineffective assistance of
counsel claim because his counsel was responsible for informing him of
important developments in the litigation,34 this Court does not consider
ineffective assistance of counsel claims raised for the first time on direct
appeal.35 Given the extensive colloquy undertaken before Windsor’s guilty
plea, we are dubious about his contention that he would not have pled guilty
and no contest to crimes against two victims solely because he would have
otherwise faced separate trials as to each set of charges. Nothing in the
record suggests the State was not going to pursue Windsor for convictions as
to crimes against both victims even if it took two trials. In any event, for
present purposes, Windsor may not press a Strickland claim. Relatedly,
although Windsor claims there was prosecutorial misconduct because he was
not shown discovery, an unspecified DVD, or the victim statements, he does
not claim that his counsel lacked access to those materials. In fact, the
record reflects that Windsor’s counsel requested discovery, viewed
Windsor’s confession, and reviewed the victim’s statements. The
34
Cooke v. State, 977 A.2d 803, 841 (Del. 2009) (recognizing defense counsel’s duties
include keeping defendant informed of important developments); Principles of
Professionalism for Delaware Lawyers Rule 1.4(a)(3) (stating lawyer shall keep client
reasonably informed about status of matter).
35
Wright v. State, 513 A.2d 1310, 1315 (Del. 1986).
15
prosecution was not responsible for ensuring that Windsor personally
viewed materials made available to his counsel. Windsor’s claim of
prosecutorial misconduct based on his non-viewing of these materials is
therefore without merit. Again, we are dubious that anything in these
allegations bears a rational connection to Windsor’s decision to plead guilty,
but to the extent he is attempting to raise a Strickland claim based on what
his counsel did with the materials provided by the State, he cannot do so
now on direct appeal.
(21) This Court has reviewed the record carefully and has concluded
that Windsor’s appeal is wholly without merit and devoid of any arguably
appealable issue. We also are satisfied that Windsor’s counsel has made a
conscientious effort to examine the record and the law and has properly
determined that Windsor could not raise a meritorious claim in this appeal.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED. The motion to withdraw is moot.
BY THE COURT:
/s/ Leo E. Strine, Jr.
Chief Justice
16