Summary
granting postconviction relief by vacating defendant's sentence and reimposing the same sentence to allow defendant to file a timely direct appeal
Summary of this case from Amaro v. StateOpinion
I.D. No. 0310017732.
Submitted: May 15, 2008.
Decided: June 9, 2008.
UPON CONSIDERATION OF DEFENDANT'S FIRST PRO SE MOTION FOR POSTCONVICTION RELIEF GRANTED.
ORDER
AND NOW, this 9th day of June, 2008, the defendant having filed a Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61 on May 15, 2008,
IT IS ORDERED that:
(1) Defendant's sentence that he received on June 11, 2004 is hereby VACATED.
(2) Defendant is resentenced to the same terms and conditions, effective this 9th day of June, 2008.
IT IS SO ORDERED.
Original to Prothonotary — Criminal
This 9th day of June, 2008, it appears to the Court that:
1. On April 1, 2004 a jury found Jonathan D. Black ("Black") guilty of three counts of Unlawful Sexual Contact in the Second Degree in violation of 11 Del. C. § 768. The Court granted the State's motion to declare Black an habitual offender under 11 Del. C. § 4214(b). On June 11, 2004, Black was sentenced to fifteen years imprisonment at Level V on each of the three counts.
2. Black then filed this, his first pro se motion for postconviction relief, on May 15, 2008. In his motion, Black argues that he received ineffective assistance of counsel because counsel (1) failed to advise him of any right to, grounds of, or probability of success of an appeal or other postconviction relief, and (2) failed to file an appeal on his behalf. As a result, Black requests that the Court vacate his current sentence and resentence him to the same terms and conditions, thereby affording him thirty days to appeal his conviction and sentence to the Delaware Supreme Court.
3. In response to these claims, counsel submitted an affidavit in which he asserts that at no point did Black "discuss, declare, or state that he wished to appeal any conviction." Counsel also avers that Black never requested that an appeal be filed on his behalf. However, counsel does not state in his affidavit that he ever affirmatively notified Black of his right to, possible grounds of, or the possibility of success of, an appeal.
Docket 24, ¶ 5.
Id., ¶ 6.
4. Prior to addressing the substantive merits of any claim for postconviction relief, the Court must first determine whether the defendant has met the procedural requirements of Superior Court Criminal Rule 61 ("Rule 61"). If the procedural requirements of Rule 61 are not met, the Court should not consider the merits of a postconviction claim in order to protect the integrity of the procedural rules. If that is the case, the Court may summarily dismiss the defendant's claim "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief[.]"
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super.Ct. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super.Ct. Dec. 28, 1995) (citing Younger, 580 A.2d at 554).
Super. Ct. Crim. R. 61(d)(4).
5. Rule 61(i) imposes four procedural imperatives: (1) the motion must be filed within one year of a final order of conviction; (2) any basis for relief must have been asserted previously in any prior postconviction proceeding; (3) any basis for relief must have been asserted at trial or on direct appeal as required by the court rules unless the movant shows prejudice to his rights or cause for relief; and (4) any basis for relief must not have been formerly adjudicated in any proceeding. The bars to relief under (1), (2), and (3), however, do not apply "to a claim that the court lacked jurisdiction or to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermined the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction." Moreover, procedural bars (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice."
If the final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, however, the motion must be filed within one year. See Super. Ct. Crim. R. 61(i)(1) (July 1, 2005) (amending Super. Ct. Crim. R. 61(i)(1) (May 1, 1996)).
Super. Ct. Crim. R. 61(1)(1)-(4).
Super. Ct. Crim. R. 61(i)(5).
Id., R. 61(i)(4).
6. In this case, Black's claims are procedurally barred by Rule 61(i)(1) because he filed this motion on May 15, 2008, nearly four years after his final conviction order. Thus, in order for the Court to consider his claims, Black must demonstrate a miscarriage of justice or establish that consideration is warranted in the interest of justice.
7. The Court will consider Black's claims because he has alleged a colorable claim of ineffective assistance of counsel. A claim of ineffective assistance of counsel is not procedurally barred because it is "a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of a proceeding." Pursuant to Delaware Supreme Court Rule 26(a)(1), every trial attorney has a continuing obligation to her client, "which includes informing the client of the right to an appeal, the possible grounds for an appeal, and the probable outcome of an appeal."
State v. Morla, 2007 WL 2566012, at *3 (Aug. 30, 2007).
State v. Nalley, Del. Super., ID No. 0407025446, Babiarz, Jr., J. (Nov. 22, 2006) (Letter Op.) (citing Supr. Ct. R. 26(a)(1)).
Further, the Delaware Constitution specifically grants one convicted of a felony and sentenced to imprisonment exceeding one month the right to an appeal. A failure to inform a client in writing of her constitutional right to appeal constitutes ineffective assistance of counsel.
Del. Const. art IV, § 11. See also Braxton v. State, 479 A.2d 831, 834 (Del. 1984).
Nalley, at 2 (citing Braxton v. State, 479 A.2d 831 (Del. 1984) and Dixon v. State, 581 A.2d 1115 (Del. 1990)).
8. Because counsel is silent as to whether he advised Black of his constitutional right to appeal, "counsel's silence on this issue. . .in his affidavit to the Court must be taken as a concession that he did not inform Defendant of his right to appeal." The Court determines that Black should be permitted to file an appeal to the Delaware Supreme Court because counsel does not deny that he failed to advise Black of his constitutional right to do so.
Id.
The appropriate remedy for ineffective assistance of counsel resulting in the loss of an ability to appeal a conviction is to resentence the defendant and allow the appeal period to run anew. Eley v. State, 748 A.2d 407, 2000 Del. LEXIS 67, at * 5 (Del. Feb. 29, 2000) (Table).
9. As a result, Black's motion for postconviction relief is GRANTED to the extent that the sentence he received on June 11, 2004 is hereby VACATED, and he is resentenced to the same terms and conditions, effective this 9th day of June, 2008. Attached is a new sentencing order.
Black now has thirty days from the date of this order to file an appeal to the Delaware Supreme Court.
IT IS SO ORDERED.
Original to Prothonotary