Opinion
C.A. No. 0407019516.
October 4, 2010.
ORDER
On this 4th day of October, 2010, upon consideration of Defendant's Motion for Postconviction Relief, Defendant's Motion for Summary Judgment, Defendant's Motion for Reargument En Banc, the Commissioner's Report and Recommendation, and the record in this case, it is hereby ORDERED that Defendant's Motions are DENIED.
1. On November 1, 2005, Defendant was convicted of two counts of Rape in the First Degree, two counts of Attempted Rape in the First Degree, and one count of Misdemeanor Theft. Defendant was sentenced to 60 years in prison.
2. On November 8, 2006, the Supreme Court of Delaware affirmed Defendant's conviction.
3. On October 16, 2007, Defendant filed a Motion for Postconviction Relief wherein he alleged ineffective assistance of counsel because counsel did not object to the State's use of the words "victim", "sexual assault", and "crime scene"; did not move for a judgment of acquittal on the rape charges; did not ask for a lesser included offense instruction; and sought too many continuances. Defendant also alleged that the Superior Court abused its discretion by failing to direct counsel to file an affidavit in response to Defendant's complaints.
4. On January 16, 2009, the Supreme Court found Defendant's Motion for Postconviction Relief to be without merit and affirmed Defendant's conviction.
5. On August 6, 2010, Defendant filed a second Motion for Postconviction Relief alleging that the Superior Court lacked jurisdiction because his indictment failed to "define the means by which sexual intercourse" occurred and that counsel failed to raise this issue on appeal.
6. On September 16, 2010, Defendant filed a Motion for Summary Judgment because the State did not file a response to Defendant's August 6, 2010 Motion and Defendant requested that the Court rule on the merits of the case.
7. The Court referred this Motion to Superior Court Commissioner Vavala pursuant to 10 Del.C. § 521(b) and Superior Court Rule 62 for proposed findings of fact and conclusions of law.
8. On September 17, 2010, the Commissioner filed a Report and Recommendation that the Court deny Defendant's Motion for Postconviction Relief.
9. On October 1, 2010, Defendant filed a Motion for Reargument En Banc, again asserting ineffective assistance of counsel. Defendant argues that counsel was ineffective because he did not seek to dismiss Defendant's indictment on the grounds that it was not identical to his charges at his Preliminary Hearing.
10. After careful and de nova review of the record in this action, and for the reasons stated in the Commissioner's Report and Recommendation of September 17, 2010,
It is ORDERED, that the Commissioner's Report and Recommendation is adopted by this Court and that Defendant's Motions for Postconviction Relief, Summary Judgment and Motion for Reargument En Banc are DENIED.