Date: 12-08-2015

Case Style: Garvin v. State Of Delaware

Case Number: 476, 2015

Judge: Randy J. Holland

Court: IN THE SUPREME COURT OF THE STATE OF DELAWARE

Plaintiff's Attorney: Rodney E. Davis

Defendant's Attorney: John Durden, Cris E. Schneider

Description: This 7th day of December 2015, upon consideration of the appellant’s opening
brief, the appellant’s motion to affirm, and the record below, it appears to the Court
that:
(1) The appellant, Donovan J. Garvin, filed this appeal from the Superior
Court’s denial of his first motion for postconviction relief. The State of Delaware
has filed a motion to affirm the judgment below on the ground that it is manifest on
the face of Garvin’s opening brief that his appeal is without merit. We agree and
affirm.
The motion to affirm was filed on September 21, 2015, but the record was filed on October 7, 2015.
(2) In April 2013, Garvin was charged by indictment with forty-five counts
of Sexual Solicitation of a Child, Possession of Child Pornography, and Sexual
Abuse of a Child by a Person of Trust in the First Degree. The charges arose from
Garvin’s contact with three children—two children under the age of eighteen and
one child under the age of sixteen. On August 28, 2013, Garvin pled guilty to Sexual
Abuse of a Child by a Person of Trust in the First Degree as to the child under sixteen
and the State entered a nolle prosequi on the remaining charges.
(3) As part of the plea agreement, the parties agreed to immediate
sentencing and a sentencing recommendation of twenty-five years of Level V
incarceration, suspended after thirteen years (which included the ten year minimum
Level V sentence required by 11 Del. C. 778(6)(b)) for decreasing levels of
supervision. After consideration of aggravating and mitigating factors, the Superior
Court imposed the recommended sentence. Garvin did not file a direct appeal.
(4) On November 25, 2013, Garvin filed a motion for postconviction relief
under Superior Court Criminal Rule 61 (“Rule 61”). Counsel (“Postconviction
Counsel”) was appointed to represent Garvin. On March 13, 2015, Postconviction
Counsel filed a motion to withdraw under Rule 61(e).
(5) Garvin filed a response to the motion to withdraw, reiterating the claims
in his motion for postconviction relief and asserting additional ineffective assistance
of counsel claims. In an order dated May 14, 2015, the Superior Court granted the
motion to withdraw. On August 18, 2015, the Superior Court denied Garvin’s
motion for postconviction relief. This appeal followed.
(6) We review the Superior Court’s denial of postconviction relief for
abuse of discretion and questions of law de novo.2 The procedural requirements of
Rule 61 must be considered before any substantive issues are addressed.3 As he did
in the Superior Court, Garvin argues that: (i) his counsel coerced him to plead guilty;
(ii) his counsel did not utilize favorable evidence showing the victim was the
aggressor; (iii) his counsel incorrectly informed him that he was subject to a ten year
minimum sentence and that he could earn good time credit on that sentence; (iv) his
counsel failed to raise various mitigating factors at sentencing; (v) his counsel failed
to research or investigate his case; (vi) his counsel did not communicate sufficiently
with him; and (vii) his guilty plea was not supported by sufficient evidence.
(7) To prevail on his ineffective assistance of counsel claims, Garvin must
show that: (i) his counsel’s conduct fell below an objective standard of
reasonableness; and (ii) there is a reasonable probability that but for counsel’s errors,
he would not have pled guilty and would have insisted on proceeding to trial.4 There
is a “strong presumption” that counsel’s representation was professionally
Dawson v. State, 673 A.2d 1186, 1190 (Del.1996). 3 Younger v. State, 580 A.2d 552, 554 (Del.1990). 4 Hill v. Lockhart, 474 U.S. 52, 58-59 (1985); Albury v. State, 551 A.2d 53, 59 (1988).
reasonable.5 A defendant must set forth and substantiate concrete allegations of
actual prejudice.6
(8) The record does not support Garvin’s claim that his counsel coerced
him to plead guilty. During the guilty plea colloquy, Garvin told the Superior Court
that he intentionally engaged in sexual penetration with a victim who had not reached
the age of sixteen while he stood in a position of trust, authority, or supervision over
the victim, he freely and voluntarily pled guilty, and nobody, including his lawyer,
threatened or forced him to plead guilty. Similarly, Garvin indicated in the Truth–
In–Sentencing Guilty Plea form that he had freely and voluntarily decided to plead
guilty and that nobody had threatened or forced him to plead guilty. In the absence
of clear and convincing evidence to the contrary, Garvin is bound by these
representations.7
(9) In arguing that his counsel failed to utilize favorable evidence that the
victim was the aggressor, Garvin ignores that a child under sixteen cannot consent
to a sexual act with a person more than four years older than the child.8 Garvin was
in his thirties at the time of the offenses. As to Garvin’s claim that his counsel
incorrectly informed him that he was subject to a ten year minimum Level V
Strickland v. Washington, 466 U.S. 668, 689 (1984). 6 Younger v. State, 580 A.2d at 554. 7 Somerville v. State, 703 A.2d 629, 632 (Del. 1997). 8 11 Del. C. § 761(k).
sentence and could earn good time credit on that portion of his sentence, Garvin was
not misinformed. Garvin pled guilty to intentionally engaging in sexual penetration
with a victim who had not reached the age of sixteen while he stood in a position of
trust, authority, or supervision over the victim, 9 which is subject to a minimum
sentence of ten years of Level V incarceration.10 Contrary to Garvin’s belief, digital
penetration falls within the definition of sexual penetration.11 Garvin can also earn
good time on the ten year minimum portion of his sentence.12
(10) Garvin’s claim that his counsel was ineffective for failing to present
certain mitigating factors at sentencing is also without merit. The record reflects
that the Superior Court imposed the sentence that was negotiated and recommended
by the parties. Contrary to his contention, Garvin’s lack of previous criminal record
was raised at sentencing as a mitigating factor. In claiming that his counsel should
have presented evidence that the victim was the aggressor and that he initially
refrained from sexual contact with the victim due to concern for the victim, Garvin
again disregards that a child under sixteen cannot consent to a sexual act with a
person more than four years older than the child.13 Garvin also fails to recognize
11 Del. C. § 778(2). 10 11 Del. C. § 778(6)(b). 11 11 Del. C. § 761(d), (i). 12 11 Del. C. § 4381(a) (providing that all sentences, other than a life sentence or a sentence imposed under 11 Del. C. § 4214 or 11 Del. C. § 4204(k), can be reduced by good time). Garvin was not sentenced under 11 Del. C. § 4214 or 11 Del. C. § 4204(k). 13 See supra n. 8.
that these claims are inconsistent with a mitigating factor that the Court did take into
account in imposing the sentence—Garvin’s acceptance of responsibility for his
actions. To the extent Garvin relies upon newspaper reports of convictions and
sentences imposed in different sexual abuse cases, those cases, which appear to
involve fewer victims, different charges, and different convictions, do not support
his ineffectiveness claims.
(11) Garvin’s contentions that his counsel failed to investigate his case or
communicate with him sufficiently are not supported by any concrete allegations of
actual prejudice. Given the number of serious charges against him and the many
decades of imprisonment that he faced, Garvin received a clear benefit from his
guilty plea. The Superior Court did not err in finding that Garvin’s ineffective
assistance of counsel claims were without merit.
(12) The Superior Court also did not err in rejecting Garvin’s sufficiency of
the evidence claim. This claim was barred by Garvin’s knowing and voluntary guilty
plea.14 Having carefully reviewed the record and the parties’ positions on appeal,
we conclude that the Superior Court did not err in denying Donovan’s motion for
postconviction relief under Rule 61.

Outcome:

Plaintiff's Experts:

Defendant's Experts:

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