Opinion
ID#: 9610010068.
Submitted: August 26, 2003.
Decided: September 15, 2003.
ORDER
On August 13, 2003, Wayne Collazo filed a motion for postconviction relief. Collazo's conviction by a Superior Court jury of two counts of unlawful sexual intercourse in the first degree was affirmed by Delaware's Supreme Court on October 16, 1998. The mandate was received by the Superior Court on November 10, 1998. In other words, Collazo's motion comes almost five years after his conviction became final.
Del. Code Ann. tit. 11 Del. C. § 775 (1974).
Essentially, Collazo presents five grounds in support of his motion:
• Ineffective assistance of counsel at trial and on appeal;
• Judicial abuse of discretion at trial and sentencing;
• "Multiplicity";
• Prosecutorial misconduct; and
• "Improper conduct by trial judge and prejudicial rulings and notices"
After preliminary consideration under Rule 61(d), Collazo's motion is procedurally barred under Rule 61(i)(1) and (3). Under Rule 61(i)(1): "a motion for postconviction relief may not be filed more than three years after the judgment of conviction is final.
Collazo relies on Semick v. State for the proposition that an application for postconviction relief may be "filed at any time." Semick concerned a motion for postconviction filed under Rule 35(a). That rule concerns correction of an illegal sentence "at any time. . . ." As mentioned above, Collazo does not argue that his sentence was illegal, or illegally imposed. He argues that he did not get a fair trial because of the mistakes made by his lawyers, the prosecutor and the trial judge. He does not claim that his sentence was illegal. Rather, it was the product of unspecified prejudice. As a matter of form and substance, Collazo filed his motion under Superior Court Criminal Rule 61. He used the form required for Rule 61 motions and his claims are the sort of claims that fall under Rule 61. Meanwhile, Rule 61(i)(1) clearly provides that the sort of claims Collazo is making must be raised within three years.
447 A.2d 1182 (Del. 1982).
Moreover, with the exception of Collazo's claims of ineffective assistance of counsel, he has failed to show cause for relief from his procedural defaults. He failed to raise his claims against the prosecutor and the trial judge during his direct appeal, and he has not provided a good reason why.
The court has not ignored Collazo's substantive claims. They are factually and legally unfounded. In Collazo's supporting memorandum, for example, the first "miscarriage of justice" that Collazo discusses concerns the trial judge's "improper conduct." Specifically, Collazo alleges:
Trial judge went into jury room twice during trial. Once he claims to tell jury that their lunch will be late, second time when the jury was at [11-1] deadlock.
Collazo implies that the trial judge improperly influenced the jury.
The record reveals that the court sent the jury out to begin its deliberations at 1:30 p.m., on August 22, 1997. The record further reveals that when the jury's lunch had not arrived by 2:25 p.m., the trial judge and the court reporter entered the jury room and the trial judge stated:
I'm sorry to interrupt you, but I wanted to tell you personally and to apologize for the fact that your lunch has not arrived. We are told that it will be another ten minutes. Normally[,] we are very efficient about getting lunches to jurors. Today [,] what can I say. The only thing I can assure you is that the bailiff and I will not be having lunch until you have yours.
As soon as the court next resumed session, the trial judge reported on the lunch problem and the court's apology, all of which was on the record. The record further reveals that the trial judge did not enter the jury room a second time. Instead, as the normal business day neared an end, the trial judge sent the bailiff into the jury room to ask whether the jurors preferred to continue deliberating, or whether they preferred to go home. The bailiff reported back that the jury had told him they were at a 11-1, without further detail. The bailiff reported to the court, on the record, that the jury did not use the word "deadlocked."
After discussing the situation with counsel, the jury was brought back to the courtroom, where the trial judge instructed the jurors to return to the jury room and decide whether they wished to continue deliberating that night, or come back the following morning. Eventually, the jury asked to be excused for the night. which the trial judge did in open court.
In summary, although Collazo's accusations have a dramatic ring, the record reveals nothing remotely approaching misconduct. And again, even if Collazo's claim had merit, which it does not, he should have raised it years ago. The same applies to Collazo's other claims.
Collazo fails to present a specific instance where his trial counsel's or his appellate counsel's representation fell below a reasonable standard, much less that any professional deficiency was prejudicial. Beyond conclusory allegations of ineffectiveness, Collazo presents few specifics. Collazo's clearest accusation against his trial counsel appears to be:
Trial counsel did not make any arguments in front of jury on the grounds that all elements of USI I were not present in Defendant's case.
In reality, defense counsel argued that the State failed to prove its case. First, Defendant's trial counsel drew the jury's attention to the fact that the crimes were reported approximately seventeen months late. Then, defense counsel provided a motive for the young victim's mother to have put the child up to fabricating an accusation. Then, defense alleged various inconsistencies in the child's statements. Furthermore, defense counsel argued that the State failed to prove that Collazo had been alone with the victim, and so on. The upshot of defense counsel's closing argument was that Collazo's accuser, a young child, was untruthful and there was reason to believe that the child was put up to accusing Collazo by the child's scheming mother.
Despite Collazo's current argument to the contrary, his trial counsel argued, in effect, none of the elements of unlawful sexual intercourse was present and, most likely, Collazo was framed. Perhaps, another trial attorney might have argued the case differently. But it cannot be said, as Collazo does, that his trial counsel did not argue to the jury that "all elements of USI I were not present."
As presented above, it plainly appears from the motion for postconviction relief and the record of prior proceedings that movant is not entitled to relief. His motion is untimely in its entirety, and is procedurally barred in part. Therefore, the August 13, 2003 Motion for Postconviction Relief is summarily DISMISSED. The Prothonotary shall notify movant.