Opinion
Cr. ID No. 0605001543.
Submitted: November 2, 2009.
Decided: November 18, 2009.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Danielle J. Brennan, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
James A. Pethel, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 18th day of November, 2009, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. In June 2006, a Delaware grand jury indicted Defendant Pethel on the charge of Arson in the Second Degree. Pethel was serving a sentence in Pennsylvania at the time of the indictment. In or about March 2007, Pethel waived extradiction and was returned to Delaware under the Interstate Agreement on Detainers ("IAD").
11 Del.C. § 2540 et seq,
2. On or about May 22, 2008, Pethel pleaded guilty in the Superior Court to Arson in the Second Degree. On or about July 25, 2008, Pethel was sentenced to 7 years incarceration at Level V, to be suspended after 18 months for Level IV work release and decreasing levels of probation.
3. The sentencing order of July 25, 2008, which was signed and filed on August 4, 2008, stated, in relevant part:
Superior Court Docket No. 43.
Effective March 8, 2007 the defendant is sentenced as follows:
— The defendant is placed in the custody of the Department of Correction for 7 year(s) at supervision level 5 with credit for 3 day(s) previously served
— Suspended after 18 month(s) at supervision level 5.
4. On or about June 23, 2009, Defendant filed a petition for a writ of habeas corpus in the Superior Court contending that he had completed his Level V sentence and should be released from custody.
Superior Court Docket No. 62.
5. Initially, it appeared to the Superior Court that Defendant had completed his Level V sentence and on July 28, 2009, the Court entered an Order granting Defendant's petition.
Superior Court Docket No. 66.
6. Thereafter the Superior Court became aware that an error had been made. The Superior Court learned that, in fact, Defendant had not been incarcerated in Delaware on March 8, 2007, the effective date of the sentencing order. The Superior Court further learned that Defendant had only been incarcerated in Delaware from March 13, 2008 to November 3, 2008, and then was returned to the State of Pennsylvania to continue serving his Pennsylvania sentence on the Pennsylvania conviction. After serving his Pennsylvania sentence on the Pennsylvania conviction, Defendant was returned to Delaware from Pennsylvania on March 16, 2009.
7. The sentence imposed by the Superior Court on the Delaware conviction required Defendant to serve 18 months at Level V in Delaware. Having realized that an error was made in the original sentencing order, on August 3, 2009, the Superior Court issued a corrected sentencing order.
Corrected Sentence Order of August 3, 2009.
8. The corrected sentencing order of August 3, 2009, explained: "It is the Order of the Court that the 7/25/2008 Sentence Order is hereby corrected to reflect that the defendant is to receive 235 days credit, effective on 3/13/2008. The defendant was not incarcerated in Delaware until that time. All other terms and conditions shall remain in full effect."
The Corrected Sentence Order provided:
Effective March 13, 2008 the defendant is sentenced as follows:
— The defendant is placed in the custody of the Department of Correction for 7 year(s) at supervision level 5 with credit for 235 day(s) previously served
— Suspended after 18 month(s) at supervision level 5.
9. On August 3, 2009, the Superior Court vacated its Order dated July 28, 2009 granting Defendant's Petition for a Writ of Habeas Corpus since it realized that Defendant had not in fact completed his Level V sentence.
Superior Court Docket No. 67.
10. By Order dated August 4, 2009, the Superior Court denied Defendant's Petition for a Writ of Habeas Corpus since the Defendant was, in fact, being legally detained.
Superior Court Docket No. 70.
11. On October 29, 2009, Defendant filed a motion for postconviction relief. The essence of Defendant's motion is that he is being illegally detained. The first ground alleges misconduct by the Department of Corrections and contends in a summary fashion that the Department of Corrections somehow altered the court's July 25, 2008 sentencing order. The second ground alleges misconduct by the Attorney General's office contending in a summary fashion that the Attorney General's office somehow allowed the Department of Corrections to administratively alter the court's July 25, 2008 sentencing order. The third ground alleges misconduct by the State of Delaware and contends in a summary fashion that somehow the State breached the terms of Defendant's plea agreement and sentence imposed. The fourth and final ground alleges abuse of discretion by the Superior Court in the handling of Defendant's habeas corpus petition.
12. Pursuant to Superior Court Rule 61(d)(4), if it plainly appears from the motion for post conviction relief and the record of prior proceedings that the movant is not entitled to relief, the court may enter an order for its summary dismissal and cause the movant to be notified.
Super.Ct.Crim.R. 61(d)(4).
13. In the subject action, it plainly appears from the motion and the record of prior proceedings that the Defendant has not shown entitlement to relief, Defendant's motion therefore warrants summary dismissal.
14. First, since it appears that the essence of Defendant's motion is that he is being illegally detained in that he has not been properly credited for his time served, a Rule 61 Motion for Postconviction Relief is not the proper procedural vehicle for the remedy sought. It does not appear that Defendant is challenging the legality of either his conviction or sentence, which is the proper purpose of a postconviction motion. Rather, it appears that Defendant is challenging the appropriate time period that should be considered when crediting Defendant for his time served. As such, the proper vehicle for the remedy sought by Defendant is a petition for writ of mandamus and not a Rule 61 Motion for Postconviction Relief.
See, Ortiz v. State, 2007 WL 1732729 (Del.Supr.).
Id.
15. Second, even if Defendant's Rule 61 Motion for Postconviction Relief was the proper procedural vehicle, Defendant's motion is completely conclusory and should therefore be summarily dismissed. Each of the claims raised by Defendant amount to nothing more than mere conclusory allegations which are legally insufficient to substantiate the claim. Defendant has made merely general statements of legal rules or facts. All of Defendant claims should be summarily dismissed since they do no more than make conclusory assertions of law or fact.
See, State v. Chambers, 2008 WL 4137988 (Del.Super.) (summarily dismissing Defendant's motion for postconviction relief as conclusory); State v. Miller, 2007 WL 3287943 (Del.Super.) (claims which do no more than make conclusory assertions of law or fact should be summarily dismissed.).
16. Third, Defendant's motion for post conviction relief is procedurally barred since the claims were required to be raised in prior proceedings to be procedurally preserved. Defendant's first three claims, alleging misconduct by the Department of Corrections (Count One); misconduct by the Attorney General's office (Count Two); and misconduct by the State of Delaware (Count Three), should have been raised on direct appeal to be procedurally preserved. The Court does not find that the interests of justice require it to consider these otherwise waived claims for relief. Defendant's fourth claim, alleging abuse of discretion by the Superior Court in the handling of Defendant's habeas corpus petition should have been raised by appealing that decision to the Delaware Supreme Court. The Superior Court's handling of the habeas corpus petition cannot now be collaterally challenged by way of a Rule 61 postconviction motion.
Malin v. State, 2009 WL 537060, at *5 (Del.Super.); Super.Ct.Crim.R. 61(i)(2) (3).
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
17. Finally, Defendant's claims are without merit. The Superior Court corrected its July 25, 2008 sentencing order upon the realization that an error had been made. The Superior Court has the authority to correct errors in its sentencing orders at any time. The effective date in the Superior Court's original sentencing order was based on an error, and the Superior Court appropriately corrected that error by the issuance of a corrected sentencing order. The Department of Corrections (ground one) did not somehow alter the sentencing order. Since the Department of Corrections did not alter the sentencing order, the Attorney General's office (ground two) did not somehow allow the Department of Corrections to alter the sentencing order. Defendant fails to specify how the State of Delaware (ground three) somehow breached the terms of Defendant's plea agreement and sentence. Lastly, the Superior Court (ground four) properly denied Defendant's habeas corpus petition since he is being legally detained.
Elliott v. State, 2004 WL 120526 (Del.Supr.); Super.Ct.Crim.R. 36.
For the reasons stated above, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.