Opinion
ID# 9709010268
Submitted: July 25, 2000
Decided: October 24, 2000
On Defendant's Pro Se Motion for Postconviction Relief. SUMMARILY DISMISSED.
ORDER
This 24th day of October, 2000, upon consideration of Defendant's Pro Se Motion for Postconviction Relief, it appears to this Court that:
1. Alton Cannon (Defendant) has filed this Motion for Postconviction Relief pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's motion for postconviction relief is SUMMARILY DISMISSED.
2. On September 29, 1998, the Defendant entered a plea of guilty to the charges of Assault Second Degree and to Unlawful Sexual Contact First Degree (as a lesser included offense of Unlawful Sexual Intercourse First Degree). Pursuant to the plea agreement, the then pending charges of Unlawful Sexual Intercourse First Degree and Kidnaping First Degree were nolle prossed. On December 4, 1998, the Court sentenced the Defendant to ten years of Level V suspended after five years for three years at Level IV suspended after one year for four years at Level II. During the sentencing hearing, Defendant presented an oral Motion to Withdraw Guilty Plea that was denied by the Court because the Defendant had failed to make a satisfactory showing under Super. Ct. Crim. R. 32(d). On March 9, Defendant filed a Motion for Post Conviction Relief pursuant to Super. Ct. Crim. R. 61. That Motion was summarily dismissed in part and denied in part. On July 25, 2000 Defendant filed this second Motion for Postconviction Relief.
Super. Ct. Crim. R. 32(d) provides, in pertinent part, that "the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only by motion under Rule 61."
State v. Alton Cannon, Del. Super., ID # 9709010268, Cooch, J. (Dec. 9, 1999) (letter opinion).
3. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Super. Ct. Crim. R. 61. Rule 61(i)(2) provides that "any ground for relief not asserted in a prior postconviction proceeding is thereafter barred, unless consideration of the claim is warranted in the interest of justice." Rule 61(i)(4) also substantively provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." "The interest of justice [exception under Rule 61 (i)(4)] has been narrowly defined to require the movant to show that the trial court lacked the authority to convict or punish him."
Bailey v. State, Del. Supr., 588 A.2d 1121, 1127 (1991); Younger v. State, Del. Supr., 580 A.2d 552, 554 (1990) ( citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
Super. Ct. Crim. R. 61(i)(4).
State. Wright, Del. Super., 653 A.2d 288, 298 (1994) (citing Flamer v. State, Del. Supr., 585 A.2d 736, 746 (1990)).
However, the procedural bar of Rule 61(i)(2) may potentially be overcome by Rule 61(i)(5), which provides that "[t]he bars to relief in paragraph (2) . . . shall 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 judgement of conviction."
4. Defendant submitted his second Motion for Postconviction Relief and attached an eighty-five page, single-spaced, handwritten supporting Memorandum.
Defendant seems to raise nine grounds for relief. Seven grounds appear to attack the Defendant's plea bargain in various ways. These claims were raised by Defendant in his previous Motion for Postconviction Relief under the guise of slightly different allegations.
See Defendant's Motion at 3. Grounds two, three, five, six, seven, eight and nine attack Defendant's plea bargain.
Two grounds appear to accuse Defense counsel of failing to investigate Defendant's case. These grounds, although newly revised, allege grounds formerly adjudicated in Defendant's Motion for Postconviction Relief of December 9, 1999. These allegations were adjudicated by this Court in its letter opinion denying Defendant's Motion for Postconviction Relief of December 9, 1999. These allegations are therefore procedurally barred from being raised in this Motion for Postconviction Relief pursuant to Rule 61(i)(2). To the extent any ground is herein raised for the first time, there has been no showing why such claim was not raised before.
See Defendant's Motion for Postconviction at 3 addressing grounds one and four.
Ground one of Defendant's Motion is entitled "Ineffective Assistance of Counsel". However, the substance of the allegation accuses Defendant's counsel of failing to investigate Defendant's case.
Defendant's Motion at 3.
Super. Ct. Crim. R. 61(i)(2). This includes claims that were previously considered and rejected but are now raised in a "refined or restated" claim. Riley v. State, Del. Supr., 585 A.2d 719, 721 (1990).
5. Defendant's ineffective assistance of counsel claim, although slightly restated in this second Motion for Postconviction Relief, were addressed by this Court in the December 9, 1999 Motion for Postconviction Relief Therefore, these are procedurally barred according to Super. Ct. Crim. Rule 61(i)4).
6. For the reasons stated above, Defendant's Motion for Postconviction Relief is SUMMARILY DISMISSED.
IT IS SO ORDERED. ___________________________