Opinion
Cr. ID No. 0308006394.
Submitted: February 1, 2010.
Decided: February 2, 2010.
COMMISSIONER'S REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
Diane C. Walsh, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware, Attorney for the State.
Asuncion R. Sanchez, James T. Vaughn Correctional Center, Smyrna, Delaware, pro se.
This 2nd day of February 2010, upon consideration of Defendant's Motion for Postconviction Relief, it appears to the Court that:
1. Asuncion R. Sanchez was charged with Murder First Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Conspiracy First Degree. On April 19, 2004, Defendant Sanchez pled guilty to Murder Second Degree and on August 13, 2004, he was sentenced to 20 years in prison followed by probation.
2. Defendant Sanchez did not file a direct appeal from his guilty plea or sentence.
3. On August 28, 2006, Defendant Sanchez filed a Motion for Postconviction Relief. In Defendant Sanchez's first motion for postconviction relief he raised various challenges, including ineffective assistance of counsel claims, in connection with his guilty plea and sentence. The essence of Defendant's claims was essentially to be permitted to withdraw his guilty plea. By Order dated December 4, 2006, the Superior Court denied Defendant's motion after thoroughly and fully addressing Defendant's contentions on their merits. Specifically, the Court found:
. . . [A] review of the transcript of the plea colloquy reveals that the Court engaged in a thorough discussion with Sanchez as to the nature and consequences of his decision to plead guilty. The record shows Sanchez confirmed, in open court and on his signed "Truth-in-Sentencing Guilty Plea Form" (which was provided to him in Spanish), that he carefully reviewed the plea agreement with his attorney, he was freely and voluntarily pleading guilty to Murder Second Degree, his attorney had not forced or threatened him to plead guilty, and that he was satisfied with his attorneys' representation. There being an absence of clear and convincing evidence to the contrary, Sanchez is bound by those representations. Accordingly, the Court finds that Sanchez entered his plea agreement knowingly, intelligently and voluntarily.
December 4, 2006 Order, Superior Court Docket No. 19, pg.8.
4. On July 24, 2007, the Delaware Supreme Court dismissed as untimely Defendant's appeal of the Superior Court's denial of his postconviction relief motion.
5. Defendant had a full and fair opportunity in his previous postconviction motion to exhaustively raise all allegations of ineffective assistance of counsel as well as any other claims that he desired to raise. Those allegations that he chose to raise were considered by the Court. After careful consideration of the issues raised by Defendant, the Court determined that Defendant failed to demonstrate that he received ineffective assistance of counsel, that his guilty plea and sentence were proper, and that Defendant's motion lacked merit.
6. On January 25, 2010, Defendant filed another motion for postconviction relief. In the subject motion, Defendant contends that his counsel was ineffective for: 1) "fail[ing] to investigate and supply Defendant with arguments regarding any illegal violations prior to and during plea that merit relief"; and 2) for failing to file a direct appeal.
7. 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. If a procedural bar exists, then the claim is barred, and the Court should not consider the merits of the postconviction claim. Moreover, if it plainly appears from the motion for postconviction relief 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.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
Id.
Super.Ct.Crim.R. 61(d)(4).
8. Before turning to the procedural bars that exist in this case, it is important to note that Defendant's claims presented in this motion are wholly conclusory, unintelligible and incoherent. The defendant must make concrete allegations of actual prejudice and substantiate them or risk dismissal. Defendant's contentions are devoid of any specificity. Defendant fails to provide anything specific about what his attorney failed to do but should have done, what his attorney should have investigated but failed to investigate, what his attorney should have done prior to or during the plea but failed to do, nor what his attorney could have or should have raised on appeal. The Court will not address Rule 61 claims that are conclusory and unsubstantiated.
State v. Mobley, 2007 WL 3287999, at *3 (Del.Super.); State v. Donohue, 2008 WL 5206779 (Del.Super.)
Id.
9. In addition to the wholly conclusory nature of the claims presented, Defendant is simply incorrect in his contention that he had a right to file a direct appeal. Defendant's sentence of 20 years in prison was well within the statutory guidelines of 15 years to life. Defendant did not have a right to a direct appeal, he voluntarily, intelligently and knowingly waived that right, along with various other constitutional rights, when he pled guilty. Indeed, Defendant expressly waived that right in the Truth-in-Sentencing Guilty Plea Form which he signed and during the plea colloquy. Since Defendant did not have a right to a direct appeal, his counsel cannot be ineffective for failing to inform Defendant he had that right.
State v. Sanchez, April 19, 2004 Plea Colloquy, pg. 7-8 (Q: "Do you understand you are waiving your right to appeal to a higher court:? A: "Yes").
See, State v. Cooper, 1995 WL 1920137 (Del.Super.) (Defendant cannot maintain an ineffective assistance of counsel claim for failing to file an appeal following a guilty plea, since Defendant waived the right to appeal by pleading guilty.)
10. Consequently, for these reasons alone-that the motion is conclusory and is premised on an incorrect understanding of Defendant's appeal rights-Defendant's motion for postconviction relief should be denied. For the sake of completeness, however, the procedural bars provide a separate and independent basis for the denial of Defendant's motion.
11. Rule 61 (i) imposes four procedural imperatives: (1) the motion must be filed within three years of a final order of conviction; (2) any basis for relief must have been asserted previously in a 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."
Since this final order of conviction occurred before July 1, 2005, the motion must be filed within three years. If the final order of conviction occurred on or after July 1, 2005, the motion must be filed within one year. See, Super.Ct.Crim.R. 61(i)(1) (July 1, 2005) (amending Super.Ct.Crim.R. 61(i)(1) (May 1, 1996)).
Super.Ct.Crim.R. 61(i)(5).
Super.Ct.Crim.R. 61 (i)(4).
12. In this case, Defendant's claims are all procedurally barred. Rule 61(i)(1) applies because Defendant filed this motion more than three years after his final order of conviction. Defendant's final order of conviction was in 2004, and this motion filed on January 25, 2010, was filed over 5 ½ years later, clearly outside the applicable three-year limit.
13. In addition, Rule 61(i)(4) also precludes this Court's consideration of the claims presented herein that have already been formally adjudicated. It appears as if Defendant's claim regarding attorney ineffectiveness before and during the plea were previously raised and adjudicated in Defendant's first motion for postconviction relief. To the extent that Defendant has restated or refined his claims, the Superior Court is not required to re-examine any claim that has received "substantive resolution" at an earlier time simply because the claim is now refined or restated.
Johnson v. State, 1992 WL 183069, *1 (Del.Supr.).
14. Moreover, Rules 61(i)(2) and (3) would prevent this Court from considering any additional arguments or claims not previously raised. Defendant had time and opportunity to raise any issue in his prior, timely filed, postconviction motion and either did so, or neglected to do so. All of the issues raised in this motion for postconviction relief could have been raised in a timely filed motion. Indeed, the issues raised in this motion were all related to or were known at the time of Defendant's plea and sentencing in 2004, or shortly thereafter in that same year. Defendant raises nothing new or recently discovered. Defendant was aware of, had time to, and the opportunity to raise any of the issues presented herein in a timely filed motion. Having already been provided with a full and fair opportunity to present any issues desired to be raised, any attempt at this late juncture to raise a new claim is barred.
15. Since Defendant's claims are procedurally barred, Defendant must meet one of the exceptions to overcome the bars to relief. In this case, Defendant has failed to overcome any of the procedural bars by showing a "colorable claim that there was a miscarriage of justice" or that "reconsideration of the claim is warranted in the interest of justice." The "miscarriage of justice" exception is a "narrow one and has been applied only in limited circumstances." The Defendant bears the burden of proving that he has been deprived of a "substantial constitutional right." The Defendant has failed to provide any basis, and the record is devoid of, any evidence of manifest injustice. It is clear from Defendant's motion that Defendant's claims do not meet the high standard that the fundamental fairness exception requires. The Court does not find that the interests of justice require it to consider these otherwise procedurally barred claims for relief.
Younger v. State, 580 A.2d 552, 555 (Del. 1990).
Id.
For all of the foregoing reasons, Defendant's Motion for Postconviction Relief should be denied.
IT IS SO RECOMMENDED.