Opinion
No. 486, 1998.
February 3, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County in Cr. A. Nos. IN93-03-0425 thru 0428, Def. ID No. 30301463.
AFFIRMED.
Unpublished Opinion is below.
CHARLES GHOLDSON, Defendant-Below, Appellant, v. STATE OF DELAWARE, Plaintiff-Below, Appellee. No. 486, 1998. In the Supreme Court of the State of Delaware. Submitted: January 11, 1999. Decided: February 3, 1999.
Court Below: Superior Court of the State of Delaware, in and for New Castle County in Cr. A. Nos. IN93-03-0425 thru 0428, Def. ID No. 30301463.
Before VEASEY, Chief Justice, HOLLAND and HARTNETT, Justices.
ORDER
This 3rd day of February 1999, upon consideration of the appellant's opening brief and the State of Delaware's motion to affirm, it appears to the Court that:
(1) The defendant-appellant, Charles R. Gholdson ("Gholdson"), has filed this appeal from an order of the Superior Court denying his second motion for postconviction relief pursuant to Superior Court Criminal Rule 61 ("Rule 61"). The State of Delaware ("State") has moved to affirm the judgment of the Superior Court on the ground that it is manifest on the face of Gholdson's opening brief that the appeal is without merit. Supr. Ct. R. 25(a). We agree and affirm.
(2) In 1993, a jury convicted Gholdson of Trafficking in Cocaine, Possession with Intent to Deliver Cocaine, Resisting Arrest, and Tampering with Evidence. The Superior Court sentenced Gholdson to 20 years at Level V imprisonment. On direct appeal, Gholdson's defense counsel filed a brief pursuant to Supreme Court Rule 26(c) ("Rule 26(c)"). Defense counsel raised one arguably appealable issue, i.e., that the Superior Court erred in denying Gholdson's motion to suppress. Gholdson did not present any issues on his own behalf, including ineffective assistance of counsel which was raised by Gholdson at trial and denied by the Superior Court. This Court affirmed Gholdson's conviction and sentence on direct appeal pursuant to Rule 26(c). Gholdson v. State, Del. Supr., No. 357, 1993, Moore, J., 1994 WL 175593 (April 29, 1994) (ORDER).
(3) In 1997, Gholdson filed his first motion for postconviction relief. Gholdson raised the same claim as his counsel did on direct appeal, i.e., that the Superior Court erred in denying Gholdson's motion to suppress. The Superior Court denied Gholdson's first postconviction motion, finding that the claim was barred pursuant to Rule 61(i)(4). This Court affirmed on appeal. Gholdson v. State, Del. Supr., No. 240, 1997, Hartnett, J., 1997 WL 702554 (Nov. 7, 1997) (ORDER).
(4) In July 1998, Gholdson again moved for postconviction relief. Gholdson raised three claims for relief: (i) that his counsel was ineffective for questioning Gholdson on direct examination about a prior felony conviction; (ii) that the Superior Court erred in admitting Gholdson's testimony about the prior felony conviction; and (iii) that the police conducted an "unlawful stop and arrest in violation of Gholdson's 4th and 14th Amendment Rights." By order dated October 20, 1998, the Superior Court denied Gholdson's second postconviction motion, finding that the claims were procedurally barred pursuant to Rule 61(i)(1) and (4). This appeal followed.
(5) In his opening brief on appeal, Gholdson raises the two claims concerning his counsel's adducement of, and the Superior Court's admission of, Gholdson's direct examination testimony that he had a prior felony conviction. Gholdson has chosen not to brief his "unlawful stop and arrest" claim. As a result, that claim is deemed waived and abandoned and will not be addressed by this Court. Murphy v. State, Del. Supr., 632 A.2d 1150, 1152 (1993).
(6) When reviewing the Superior Court's denial of a postconviction motion pursuant to Rule 61, this Court first must consider the procedural requirements of the rule before addressing any substantive issues. Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990). In this appeal, we pay particular attention to Rule 61(i)(1), (3), (4), and (5). Rule 61(i)(1) and (5) provide, in part, that a motion for postconviction motion may not be filed more than three years after a conviction has become final, unless there is a claim that the lower court lacked jurisdiction or a colorable claim of a miscarriage of justice because of a constitutional violation.
(7) Under Rule 61(i)(3) and (5), any ground for relief not adjudicated in the proceedings leading to the judgment of conviction is barred unless the movant demonstrates cause for failing to timely raise the alleged error and prejudice to the movant's rights as a result of that error. Again, the procedural bar does not apply to a claim that the lower court lacked jurisdiction or to a colorable claim of a miscarriage of justice because of a constitutional violation.
(8) Rule 61(i)(4) provides that any ground for relief that was formerly adjudicated is thereafter barred from consideration, unless reconsideration is warranted in the interest of justice. This Court has defined "interest of justice" to require a showing that "subsequent legal developments have revealed that the trial court lacked the authority to convict or punish" the accused. Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990).
(9) Gholdson claims that his defense counsel was ineffective for questioning Gholdson on direct examination about a prior felony conviction. Gholdson's ineffective assistance of claim is barred pursuant to Rule 61(i)(4), as that claim was raised at trial and rejected. Gholdson has not demonstrated why reconsideration of this previously adjudicated claim is warranted in the "interest of justice." Id. Accordingly, without reaching the merits of the claim, we find that the claim is procedurally barred under Rule 61(i)(4). Younger v. State, 580 A.2d at 554.
(10) In a related claim, Gholdson contends that the Superior Court erred in admitting Gholdson's testimony that Gholdson had been convicted of a prior felony. Gholdson did not raise this claim on direct appeal. Thus, the claim is barred pursuant to Rule 61(i)(3). Gholdson argues in this appeal that the failure to raise the claim on direct appeal is indicative of his counsel's ineffectiveness and establishes the requisite "cause and prejudice" under Rule 61(i)(3). Gholdson, however, raised his ineffective assistance of counsel claim during trial in the Superior Court, and that claim was rejected and is now barred pursuant to Rule 61(i)(4). Hence, Gholdson has failed to demonstrate "cause and prejudice" under Rule 61(i)(3). Furthermore, Gholdson has not made the requisite showing of a jurisdictional claim or a colorable claim of a miscarriage of justice because of a constitutional violation to warrant application of an exception in Rule 61(i)(5). Accordingly, without reaching the merits of the improper admission of evidence claim, we find that the claim is procedurally barred pursuant to Rule 61(i)(3). Id.
(11) In this case, Gholdson's conviction became final in May 1994 when this Court issued the mandate following his direct appeal. Jackson v. State, Del. Supr., 654 A.2d 829, 833 (1995). Gholdson filed his second postconviction motion in 1998, more than four years after his conviction became final. Gholdson's claims, therefore, are also time-barred under Rule 61(i)(1), as Gholdson has not satisfied any of the conditions for an exception to the time limitation under Rule 61(i)(5).
(12) It is manifest on the face of Gholdson's opening brief that his appeal is without merit because the issues presented in this appeal are clearly controlled by settled Delaware law and, to the extent that judicial discretion is implicated, clearly there was no abuse of discretion.
NOW, THEREFORE, IT IS ORDERED that, pursuant to Supreme Court Rule 25(a), the appellee's motion to affirm is GRANTED. The judgment of the Superior Court is hereby AFFIRMED.
BY THE COURT:
/s/ Maurice A. Hartnett, III, Justice