Opinion
I.D. No. 0503003266.
Date Submitted: January 25, 2008.
Date Decided: March 11, 2008.
Defendant's Pro Se Motion for Postconviction Relief.
SUMMARILY DISMISSED.OPINION
On this 11th day of March, 2008, it appears to the Court that:
1. On October 21, 2005, a jury convicted Defendant, Eric Kemske ("Kemske"), of one count of Sexual Exploitation of a Child, one count of Invasion of Privacy, and twenty-five counts of Possession of Child Pornography. The Court sentenced Kemske on March 10, 2006 to a total of eight years at Level V, followed by probation. On January 25, 2007, the Delaware Supreme Court affirmed his convictions. Kemske filed a motion for postconviction relief on January 25, 2008. In his motion, Kemske raises three grounds for postconviction relief: (1) ineffective assistance of counsel; (2) plain error relating to defective jury instructions; and (3) failure to prove all elements of the case (insufficient evidence).
See Sentence Order, Docket Item ("D.I.") 31.
Although the Supreme Court's Order affirming Kemske's convictions was decided on January 2, 2007, the mandate following the affirmance was issued on January 25, 2007. Kemske v. State, 918 A.2d 338 (Del. 2007).
Mot. for Postconviction Relief, D.I. 57.
2. 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, in order to protect the integrity of the procedural rules, the Court should not consider the merits of a postconviction claim.
Younger v. State, 580 A.2d 552, 554 (Del. 1990). See also Bailey v. State, 588 A.2d 1121, 1127 (Del.Super. 1991).
State v. Gattis, 1995 WL 790961, at *2 (Del.Super. 1995) (citing Younger, 580 A.2d at 554).
3. 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 formally 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, the procedural bars of (2) and (4) may be overcome if "reconsideration of the claim is warranted in the interest of justice." 4. Kemske first claims that defense counsel was ineffective for failing to properly investigate the nature of the evidence presented against him. Specifically, he claims that defense counsel failed to examine whether the pictures which were seized from his computer were in fact "child" pornography. Kemske fails to identify the attorney which he claims was ineffective. For obvious reasons, a defendant claiming ineffective assistance of counsel must identify the counsel who he claims was ineffective. Because Kemske fails to do so, the Court is unable to consider the merit of this claim.
Super. Ct. Crim. R. 61(i)(1)-(5).
Super. Ct. Crim. R. 61(i)(5).
Id. R. 61(i)(4).
In the last paragraph of Kemske's argument relating to ineffective assistance of counsel, he states, ". . . had Ms. Dunn thoroughly acted as an advocate and tenaciously prepared and investigated this case then the outcome would have shown not only that other than testimony no concrete evidence existed, and should also pursuant to Superior Court Criminal Rule constitute Plain Error, and warrant reversal." The Court can find no record of a "Ms. Dunn" having represented Kemske in this case. Mot. for Postconviction Relief, D.I. 57.
5. Kemske next claims that the jury instructions were "minimal at best and did not offer any lesser-included offense options for the jury to consider." He also claims that he "had a right to have a jury instruction which states that a verdict of acquittal must be rendered if all elements of the crime are not met." Because these claims were not raised at trial or on appeal and Kemske fails to demonstrate cause or prejudice, this claim is procedurally barred pursuant to Rule 61(i)(3). 6. Kemske's final claim is that the State failed to prove that the pictures seized from his computer were of underage persons and that the pictures did in fact belong to him. He essentially makes a claim of insufficient evidence. On appeal, the Delaware Supreme Court ruled that sufficient evidence existed to support Kemske's convictions of Sexual Exploitation of a Child and Invasion of Privacy. Therefore, this claim, as it pertains to those charges, is procedurally barred as being formerly adjudicated pursuant to Rule 61(i)(4). Because this claim pertains to Kemske's Possession of Child Pornography conviction, it is procedurally barred pursuant to Rule 61(i)(3).
Mot. for Postconviction Relief, D.I. 57.
Id.
Super. Ct. Crim. R. 61(i)(3).
Kemske, 918 A.2d 338 (Del. 2007).
He did not raise it at trial or on direct appeal and he fails to show cause or prejudice.
WHEREFORE, Kemske's Motion for Postconviction Relief is hereby SUMMARILY DISMISSED.
IT IS SO ORDERED.