Opinion
ID No. 020400407074.
Submitted: October 14, 2004.
Decided: January 28, 2005.
Upon Defendant's Motion for Postconviction Relief.
DENIED.ORDER
Defendant Robert Smith moved for postconviction relief from his violation of probation ("VOP") conviction dated July 2, 2003. Defendant filed a pro se motion for postconviction relief on July 5, 2004, wherein he claims that violations of his constitutional rights under the United States Constitution and the Delaware Constitution created a "miscarriage of justice." Defendant asserts three grounds for relief in support of his contentions that his rights had been violated, all of which are enumerated in Superior Court Criminal Rule 32.1: (1) Defendant asserts that he was not given written notice of his probation violations; (2) Defendant asserts that "he was not shown" the evidence used against him; and (3) Defendant claims that he was denied the right to confront witnesses.
See Del. Super. Ct. Crim. R. 61(i)(5).
Defendant correctly states that because he filed his motion for postconviction relief within three years after the judgment of conviction became final, he is not procedurally barred from relief under Rule 61(i)(1). However, Defendant incorrectly asserts that meeting this procedural requirement effectively eliminates all applicable bars to postconviction relief. Defendant's claim was not raised at the VOP hearing and sentencing, or on direct appeal. Thus, the requested relief is barred by Rule 61(i)(3), absent a demonstration of cause for relief from the procedural default and prejudice.
The Defendant incorrectly claims Rule 61(i)(1), (2), and (3) are not applicable to him. Rule 61(i)(1) addresses time limitations; (2) bars repetitive motions; and (3) addresses procedural default.
Defendant's contentions are based on alleged violations that occurred at the time of his VOP hearing. In other words, Defendant is claiming that the VOP hearing did not comply with the procedural requirements of Superior Court Rule 32.1. Defendant is required to raise procedural claims at the time they occur or give good reason why he failed to do so. Defendant Smith has not alleged cause for his failure to have raised these issues on direct appeal. Therefore, Defendant's Motion is procedurally barred pursuant to Rule 61(i)(3) and should be dismissed.
However, this Court must still consider Rule 61(i)(5) even though subsection (i)(3) bars him from postconviction relief. The "miscarriage of justice" exception contained in Rule 61(i)(5) is "a narrow one and has been applied only in limited circumstances, such as when the right relied upon has been recognized for the first time after a direct appeal." This exception also may apply where there has been a mistaken waiver of fundamental constitutional rights. Accordingly, when a petitioner puts forth a "colorable claim" of mistaken waiver of important constitutional rights, Rule 61(i)(5) is available to him.
Rule 61(i)(5) provides: "The bars to relief in paragraphs (1), (2), and (3) of this subdivision shall 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."
Younger v. State, 580 A.2d 552, 555 (Del. 1990) (emphasis added).
Webster v. State, 604 A.2d 1364, 1366 (Del. 1992).
Younger, 580 A.2d at 555.
No such collorable claim has been established in this case. The Delaware Supreme Court has held that a probationer accused of violation is not entitled to a trial in any strict or formal sense. Rather, "the probationer's entitlement in this regard is limited to an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper." Nonetheless, Defendant was entitled to a VOP hearing that comported with the minimum requirements of due process in adherence to his Due Process rights and to Superior Court Criminal Rule 32.1. This Court finds that at least such minimum requirements have been met.
State v. Wingate, 2004 Del. Super. LEXIS 98.
Brown v. State, 249 A.2d 269, 271 (Del. 1968).
Perry v. State, 741 A.2d 359, 362 (Del. 1999).
A revocation of probation proceeding carries with it broad discretionary power. Further, the evidence presented at a VOP hearing need not establish guilt of criminal offenses beyond a reasonable doubt. All that is required is that the evidence be such as to reasonably satisfy the judge that the probationer had not complied with the conditions of probation. Upon examination of the record, including the VOP hearing transcript, the Court finds that no factual basis exists in the record to support Defendant's claim that the VOP hearing did not comply with the procedural requirements of Rule 32.1.
Brown, 249 A.2d at 271.
Id. at 272.
There was no denial of Defendant's fundamental constitutional rights, and his violation of Rule 32.1 claim is without merit. Accordingly, since Defendant failed to establish a violation of his constitutional rights, he has also failed to authenticate a "colorable claim" that there was a "miscarriage of justice" because of a constitutional violation pursuant to Rule 61(i)(5).
THEREFORE, pursuant to Rule 61(i)(3), Defendant's motion is procedurally barred, and Defendant has failed to demonstrate the existence of a constitutional violation resulting in a miscarriage of justice or undermining the fundamental fairness of the proceedings pursuant to 61(i)(5). Defendant's Motion for Postconviction Relief Pursuant to Superior Court Rule 61 is hereby DENIED.