Summary
finding Defendant's claims were procedurally barred and formerly adjudicated
Summary of this case from State v. WashingtonOpinion
I.D.# 9603000529.
Submitted: May 21, 2003.
Decided: July 30, 2003.
On Defendant's Second Pro Se Motion for Postconviction Relief.
DENIED IN PART, SUMMARILY DISMISSED IN PART.ORDER
This 30th day of July, 2003, upon consideration of a second pro se Motion for Postconviction Relief filed by Kevin Washington (the "Defendant"), it appears to the Court that:
1. Defendant has filed this Motion for Postconviction Relief (the "Motion") pursuant to Superior Court Criminal Rule 61. For the reasons stated below, Defendant's Motion is DENIED IN PART and SUMMARILY DISMISSED IN PART.
2. Defendant was indicted for three counts of Unlawful Sexual Intercourse First Degree and one count of Unlawful Sexual Penetration Third Degree. These charges stemmed from sexual assaults Defendant had committed against his then eight-year-old daughter. The facts that developed during a jury trial held in April 1998, however, led Defendant's counsel to request the giving of a jury instruction on the lesser included offense of Unlawful Sexual Contact Second Degree. On April 31, 1998, Defendant was convicted by a jury of two counts of Unlawful Sexual Intercourse First Degree, one count of Unlawful Sexual Contact Second Degree, and one count of Unlawful Sexual Penetration Third Degree. The Supreme Court affirmed on direct appeal, and in doing so rejected Defendant's claim that "plain error" had been committed relative to the sufficiency of the evidence as to the charge of Unlawful Sexual Contact Second Degree. Defendant was sentenced to 70 years at Level V for the two Unlawful Sexual Intercourse First Degree charges; two years at Level V for the Unlawful Sexual Penetration Third Degree charge; and two years at Level V (suspended after one year for one year at Level IV) for the Unlawful Sexual Contact Second Degree charge.
DEL. CODE ANN. tit.11, § 775 (1995) (repealed 1998).
DEL. CODE ANN. tit.11, § 770 (1995) (repealed 1998).
DEL. CODE ANN. tit.11, § 768 (2001). Specifically, it developed at trial that the third count of Unlawful Sexual Intercourse First Degree was potentially not supported by the evidence because the charge as levied contemplated Defendant as having had anal intercourse with the victim but the victim herself testified that she did not remember "anything about [her] butt" having been "touched." Trial Tr. of 4/29/98 at 60. The State did not object to the giving of the lesser included offense instruction. Id. at 77. The Court agreed to give the requested instruction pursuant to title 11, section 206(b) of the Delaware Code. See DEL. CODE ANN. tit.11, § 206(b) (2001) (providing that "[a] defendant may be convicted of an offense included in an offense charged in the indictment); see also Mackie v. State, 384 A.2d 625, 627 (holding that a defendant may be convicted of an offense not charged in the indictment if included in an offense charged in the indictment).
Washington v. State, No. 421, 1998, 2000 WL 275638 (Del.Supr. Mar. 3, 2000). On appeal, Defendant's trial counsel filed a Rule 26(c) brief together with a motion to withdraw; the Supreme Court entered an order appointing new counsel to brief Defendant's appeal. See SUPR. CT. R. 26(c) (providing that "[i]f the trial attorney, after a conscientious examination of the record and the law, concludes that an appeal is wholly without merit, the attorney may file a motion to withdraw").
Defendant thereafter filed a pro se motion for postconviction relief. One of the claims Defendant asserted related to the charge of Unlawful Sexual Contact Second Degree, as Defendant argued that "prosecutorial misconduct" was committed because of an "insufficient indictment." This Court denied Defendant's motion as procedurally barred, and specifically found that Defendant's claim relative to the Unlawful Sexual Contact charge had been formerly adjudicated through the appeal process and should not then be reexamined in the interest of justice. The Court also found that Defendant had failed to rebut any presumption that his counsel's performance was not reasonable and professional.
State v. Washington, I.D.# 9603000529, 2002 WL 826902 (Del.Super. Apr. 29, 2002), appeal dismissed, No. 315, 2002, 2002 WL 1484509 (Del.Supr. July 9, 2002) (noting that Defendant failed to timely file a notice of appeal).
Id.
3. Defendant now asserts numerous claims of error that he contends require the overturning of his convictions and the vacating of his sentences. Most of the asserted claims relate to his Unlawful Sexual Contact conviction, as Defendant maintains that this Court "lack[ed] . . . jurisdiction" when it "change[d] the indictment in the middle of the [Defendant's] trial," and that this Court "committed judicial misconduct and plain error and also abused [its] discretion for allowing the . . . prosecution to change the . . . indictment in the middle of . . . trial[.] Defendant claims that his counsel was ineffective because he "failed to raise . . . [this issue] on direct. . . ." Defendant also contends that, due to the State's "failure to exonerate" him following the testimony adduced at trial that the victim did not remember "anything about [her] butt" having been "touched," the "Due Process Clause of the 14th Amendment" has been violated. Additionally, Defendant contends that "the trial prosecution was vindictive in prosecuting . . . [him] because he rejected a plea offer. . . ." And Defendant claims that his "convictions, sentence[s], confinement and punishment [are] illegal and or unlawful."
Subsequent to submission of his Motion for Postconviction Relief, Defendant also filed a "Motion to Amend" in which he asserted two additional claims of error: 1) that this Court "committed judicial misconduct and reversible error and abused [its] discretion by allowing an unsigned police report to be admi[tted] in . . . court . . ."; and 2) that the State "committed prosecutorial misconduct" by withholding evidence of "the history of . . . syphilis . . . between the parents of the alleged victim." It appears that the State ma y not have received a copy of this motion, as it did not substantively respond to these additional claims. Nonetheless, as these grounds were not asserted in Defendant's previous motion for postconviction relief or in the proceedings leading to the judgment of conviction, and because the interest of justice does not require and because there was no miscarriage of justice in this case, the claims asserted in Defendant's "Motion to Amend" are procedurally barred from consideration. See SUPER. CT. CRIM. R. 61(i)(2) (providing that [a]ny ground for relief . . . not asserted in a prior postconviction proceeding . . . is thereafter barred, unless consideration of the claim is warranted in the interest of justice");SUPER. CT. CRIM. R. 61(i)(3) (providing that "[a]ny ground for relief that was not asserted in the proceedings leading to the judgment of conviction . . . is thereafter barred, unless the movant shows (A) [c]ause for relief from the procedural default and (B) [p]rejudice from violation of the movant's rights"); SUPER. CT. CRIM. R. 61(i)(4) (providing the "interest of justice" exception to the procedural bars of Rule 61); SUPER. CT. CRIM. R. 61(i)(5) (providing that "[t]he barto relief in paragraphs . . . (2) and (3) . . . shall not apply to a colorable claim that there was a miscarriage of justice because of a constitutional violation that undermines the fundamental legality, reliability, integrity or fairness of the proceedings leading to the judgment of conviction").
Def's "Memorandum of Law for Postconviction Relief" at 3.
Id. at 6.
Id. at 4.
Id. at 5.
Id.
Id. at 6.
In its response, the State contends that all of Defendant's claims are procedurally barred. Specifically, the State contends that "[t]he issues of effectiveness of counsel and prosecutorial misconduct were previously addressed" and that Defendant "claimed an `improper indictment' . . . in the first motion [for postconviction relief he had filed]"; the State therefore considers these issues as having been formerly adjudicated. The State further contends that to the extent that "Defendant's claims differ in substance from his previously adjudicated claims," then those claims are barred as part of a repetitive motion. The State maintains that neither the "interest of justice" or "fundamental fairness" require reexamination of these issues.
State's Resp. at 4.
Id. at 4-5.
On the merits, the State argues that Defendant's motion is insufficient because Defendant's claims are "conclusive and completely unsubstantiated." The State additionally maintains that Defendant "has failed to establish . . . that . . . counsel's conduct fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceeding would have been different." The State therefore asserts that Defendant's second Motion for Postconviction Relief should be denied.
Id. at 5.
Id. at 7.
At the Court's request, Defendant's former counsel submitted an affidavit of his recollection of the matter; Defendant's public defender file was previously sent to archives and destroyed. In response to Defendant's arguments relative to his Unlawful Sexual Contact conviction, counsel states that although he does not recall whether or not the indictment was amended at trial, such "an amendment . . . making the indictment consistent with [the] evidence . . . [i]s perfectly appropriate and not prejudicial . . . in any way." Counsel asserts that because he "ha[d] no responsibility to raise a frivolous appeal . . . [he] cannot be ruled ineffective. . . ." In response to Defendant's "vindictive" prosecution argument, counsel asserts that "there are only three avenues the prosecution can take: make a plea offer, prosecute the charges, or nolle pros the charges" and that following Defendant's rejection of the extended plea offer, "[p]rosecuting the case is a common decision under [such] circumstances and not an indication of vindictiveness. . . ."
Winslow Aff. of 3/13/03 ¶ 1.
Id. ¶ 2.
Id. ¶ 3.
4. Before addressing the merits of any claim raised in a motion seeking postconviction relief, the Court must first apply the rules governing the procedural requirements of Superior Court Criminal Rule 61. Rule 61(i)(4) provides that "[a]ny ground for relief that was formerly adjudicated, whether in the proceedings leading to the judgment of conviction, in an appeal, in a postconviction proceeding, or in a federal habeas corpus proceeding, is thereafter barred, unless reconsideration of the claim is warranted in the interest of justice." The "interest of justice" exception of Rule 61(i)(4) has "been narrowly defined to require the movant to show that the trial court lacked the authority to convict or punish [the movant]." Additionally, Rule 61(d)(4) provides that "[i]f it plainly appears from the motion for postconviction relief and the record of prior proceedings in the case that the movant is not entitled to relief," then this Court "may enter an order for . . . summary dismissal . . . [of the motion]."
Bailey v. State, 588 A.2d 1121, 1127 (Del. 1991); Younger v. State, 580 A.2d 552, 554 (Del. 1990) (citing Harris v. Reed, 489 U.S. 255, 265 (1989)).
State v. Wright, 653 A.2d 288, 298 (Del.Super.Ct. 1994) (citing Flamer v. State, 585 A.2d 736, 746 (Del. 1990)).
5. Defendant raised on direct appeal and in his first motion for postconviction relief the sufficiency of the evidence relating to the charge of Unlawful Sexual Contact Second Degree for which he was convicted. Although couched in different terms, the Court finds that the claims Defendant asserts in his second motion for postconviction relief are sufficiently of the same character as his claims of "prosecutorial misconduct," "improper indictment," and ineffective assistance of counsel that were asserted in Defendant's prior motion. As such, the claims in Defendant's second motion are subject to the former adjudication bar of Rule 61(i)(4) "unless reconsideration of the claim is warranted in the interest of justice."
Skinner v. State, 607 A.2d 1170, 1172 (Del. 1992) (holding that a defendant is not entitled to have a court re-examine an issue that has been previously resolved "simply because the claim is refined or restated") (quoting Riley v. State, 585 A.2d 719, 721 (Del. 1990)).
As previously stated, the "interest of justice" exception is narrow and requires a showing that this Court lacked the authority to convict or punish. The Court finds that it did in fact have such authority, despite Defendant's assertion that this Court "lack[ed] . . . jurisdiction" when it "change[d] the indictment in the middle of the [Defendant's] trial." The record belies Defendant's assertion that his indictment was "changed," and in any event, any claims relative to Defendant's conviction for Unlawful Sexual Contact Second Degree and counsel's performance in defending against that charge has already been resolved. Accordingly, the Court need not reach the merits of Defendant's refined assertions with regard to that conviction, or consider whether those claims are barred as part of a repetitive motion, as alternatively argued by the State; Defendant's claims are barred as formely adjudicated.
Def.'s "Memorandum of Law for Postconviction Relief" at 3.
6. Defendant's remaining two arguments are, in total, that "the trial prosecution was vindictive in prosecuting . . . [him] because he rejected a plea offer . . ." and that his "convictions, sentence[s], confinement and punishment [are] illegal and or unlawful." This Court will not address claims for postconviction relief that are conclusory and unsubstantiated. Accordingly, it plainly appears that Defendant is not entitled to relief on these two claims as stated, and therefore they are subject to summary dismissal under Rule 61(d)(4).
Id.
Id. at 6.
See, e.g., Younger, 580 A.2d at 555 (stating that "conclusory . . . allegations of ineffectiveness of counsel" do not "lead . . . to the conclusion that the claim should be considered . . .").
5. For the reasons stated above, Defendant's Motion for Postconviction Relief is DENIED IN PART and SUMMARILY DISMISSED IN PART.
Given the Court's disposition of Defendant's motion, a "Motion for Default Judgment" (Dkt. #109) that Defendant had filed when his former counsel failed to provide the requested affidavit within the initial timeframe that the Court had established is now DENIED as moot.