Opinion
I.D. No. 1205012598
02-13-2019
STATE OF DELAWARE v. JOHN D. BROMWELL, Defendant.
John D. Bromwell, pro se, Smyrna, DE. Andrew Vella, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State.
Upon Defendant's Second Motion for Postconviction Relief
SUMMARILY DISMISSED. ORDER John D. Bromwell, pro se, Smyrna, DE. Andrew Vella, Esquire, Deputy Attorney General, Department of Justice, 820 N. French St., Wilmington, Delaware, Attorney for the State. WHARTON, J.
This 13th day of February, 2019 upon consideration of Defendant's second Motion for Postconviction Relief and the record in this matter, it appears to the Court that:
D.I.47.
1. Defendant John D. Bromwell ("Bromwell") pled guilty to charges of Robbery First Degree, Conspiracy Second Degree, and Possession of a Firearm During the Commission of a Felony on January 2, 2013. On April 12, 2013, Bromwell was sentenced to a total of 30 years at Level V, suspended after 12 years for decreasing levels of supervision. Although the plea agreement stated Bromwell would be sentenced as a habitual offender, he was not. Bromwell did not appeal his conviction and sentence to the Delaware Supreme Court.
D.I. 16.
D.I. 19.
See, D.I. 16, D.I. 19.
2. On January 6, 2015, Bromwell filed his first Motion for Postconviction Relief ("First Motion"), alleging that his counsel was ineffective for various reasons, including for failing to file a suppression motion, and that his guilty plea was coerced. That motion was denied. On November 21, 2018 Bromwell sought a modification of his sentence based on certain facts mitigating his crime, as well as his rehabilitation. That request was denied on January 28, 2019 as untimely and lacking extraordinary circumstances.
D.I. 20.
State v. Bromwell, 2016 WL 4059143 (Del. Super. Ct. 2016).
D.I. 45.
D.I. 46. While it appeared to play no part in the Court's decision, the Court did incorrectly state that Bromwell was sentenced as a habitual offender.
3. Bromwell again has moved for post-conviction relief. In this motion ("Second Motion") Bromwell claims that his sentence is incorrect, stating, "I am being told that I am a declared sentence habitual offender," resulting in a claimed inability to earn good time credits or to flow down to community supervision.
D.I. 47.
Id.
4. Before addressing the merits of a defendant's motion for postconviction relief, the Court must first apply the procedural bars of Superior Court Criminal Rule 61(i). If a procedural bar exists, then the Court will not consider the merits of the postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
5. Under Delaware Superior Court Rules of Criminal Procedure, a motion for post-conviction relief can be barred for time limitations, successive motions, procedural default, or former adjudication. A motion exceeds time limitations if it is filed more than one year after the conviction becomes final, or, if it asserts a retroactively applicable right that is newly recognized after the judgment of conviction is final, more than one year after the right was first recognized by the Supreme Court of Delaware or the United States Supreme Court. A second or subsequent motion is considered successive and therefore barred and subject to summary dismissal unless the movant was convicted after a trial and "pleads with particularity that new evidence exists that the movant is actually innocent" or "pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies to the movant's case and renders the conviction ... invalid." Grounds for relief "not asserted in the proceedings leading to the judgment of conviction" are barred as procedurally defaulted unless the movant can show "cause for relief and "prejudice from [the] violation." Grounds for relief formerly adjudicated in the case, including "proceedings leading to the judgment of conviction, in an appeal, in a post-conviction proceeding, or in a federal habeas corpus hearing" are barred.
Super. Ct. Crim. R, 61(i).
Super. Ct. Crim. R. 61(i)(1).
Super. Ct. Crim. R. 61(i)(2); Super. Ct. Crim. R. 61(d)(2).
Super. Ct. Crim. R. 61(i)(3).
Super. Ct. Crim. R. 61(i)(4).
6. The bars to relief do not apply either to a claim that the court lacked jurisdiction or to a claim that pleads with particularity that new evidence exists that creates a strong inference of actual innocence, or that a new retroactively applied rule of constitutional law renders the conviction invalid. The bars remain applicable here because Bromwell has not claimed that the Court lacked jurisdiction, nor has he met the pleading requirements of Rule 61(d)(2)(i) or (d)(2)(ii).
Super. Ct. Crim. R. 61(i)(5).
Super. Ct. Crim. R. 61(d)(2)(i) and (ii).
7. This Second Motion is barred for multiple reasons. It is untimely, having been filed more than a year after the Bromwell's judgment of conviction became final. It is a successive motion, his second, that does not satisfy the pleading requirements of Rules 61(d)(2)(i) or (d)(2)(ii). It is subject to procedural default because it raises grounds for relief not previously asserted without showing cause for relief from the procedural default and prejudice from a violation of his rights.
8. Summary dismissal is appropriate if 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. It is plain from the Second Motion and the record in this case that Bromwell is not entitled to relief. Not only is the motion barred, but it fails to state what relief Bromwell seeks. He claims his sentence is "incorrect" because he "is being told" that he was sentenced as a habitual offender. Bromwell's sentence is not incorrect. It is whoever is telling Bromwell he was sentenced as a habitual offender in this case who is incorrect. Since his sentence is not incorrect, there is nothing for this Court to correct.
Super. Ct. Crim. R. 61(d)(5).
Bromwell does not share with the Court the identity of the person telling him he is serving a habitual offender sentence, nor does he provide any evidence to that effect. The Sentence Order does not state that he was declared a habitual offender. If what Bromwell claims is correct, he should share this Order with the appropriate correctional authorities. See D.I. 19. --------
Therefore, since it plainly appears from Motion for Postconviction Relief and the record in this case that Bromwell is not entitled to relief, the Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED.
/s/_________
Ferris W. Wharton, J. oc: Prothonotary
cc: Investigative Services