Opinion
Cr. No. 9708020598.
Submitted November 2, 2004.
Decided November 17, 2004.
Upon Defendant's Motion for Post Conviction Relief.
DENIED
ORDER
Upon careful review of the filings and record in the above captioned matter, Defendant's Motion For Post Conviction Relief pursuant to Superior Court Criminal Rule 61 must be DENIED. It appears to the Court that:
1. On February 9, 1998, Defendant John White pled guilty to Unlawful Sexual Intercourse Third, i.e. statutory rape. The Court, Judge Barron presiding, sentenced White to four years at Level V, suspended for Level III probation after two years. White violated his probation three times for a variety of offenses, including: failing drug screening, failing to report to his probation officer, moving out of state without permission, failing to report his new address, and failing to attend drug and sex offender counseling. White has an extensive criminal history, including ten felony convictions and twenty-five misdemeanor convictions. He has not maintained employment and, in this Court's opinion, has proven himself non-amenable to any manner of existence other than the life of crime he has chosen. The Court carefully considered these factors and, on August 18, 2004, sentenced White for violating probation to four years at Level V, suspended after two years for Level III probation.
2. White filed a motion for reduction of sentence on October 5, 2004, the primary argument of which was that he had only committed misdemeanors, rather than felonies, during his probationary sentence. The Court denied this motion for obvious reasons. Almost immediately thereafter, the Court received a Rule 61 motion from White. This motion includes a one-page, notarized letter from the rape victim, in which she recants her accusations against White. White characterizes the letter as newly discovered evidence, and, based upon it, seeks permission to withdraw his plea to the underlying felony.
3. The Court has considered the procedural bars that can prevent consideration of a Rule 61 motion, and determined that they do not apply. This is White's first Rule 61 motion. Though it is untimely, the recantation issue presents "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," within the meaning of Superior Court Criminal Rule 61(i)(5). Further, there would have been no way for White to raise the issue in a timely fashion, because the victim's recantation came six years after the conviction. The Court will therefore consider White's argument on its merits.
Bailey v. State, Del.Supr., 588 A.2d 1121, 1127 (1991).
4. Delaware courts view motions based upon recanted testimony with considerable suspicion. This is because, as the Arizona Supreme Court has stated, "there is no proof so unreliable as recanting testimony." Delaware case law is rife with instances of recantation procured through bribery, threats, and, more subtly, coercion from family and neighbors who believe that felony sentences are too harsh. For these reasons, Courts typically decide such motions on the pleadings, without an evidentiary hearing. The exceptions to this general rule are allegations of prosecutorial misconduct, third-party confessions, and jury tampering, none of which are present here.
Blankenship v. State, Del.Supr., 447 A.2d 428, 433 (1982).
State v. Sims, Ariz.Supr., 409 P.2d 17, 22 (1965).
See e.g. State v. Vincent, 1995 WL 109098, (Del.Super.).
Blankenship, 447 A.2d at 435.
Id.
Id.
5. It is clear to the Court that White's motion must be DENIED. Most importantly, White was not found guilty of this crime by a jury that may or may not have been mistaken. Instead, White admitted his guilt in open court. While the victim's testimony is important, White's plea deprived the State of the opportunity to prove his guilt beyond a reasonable doubt, through, say, other witnesses, physical evidence, or the victim's prior inconsistent statements accusing White of the crime. There is no manifest injustice in enforcing the plea agreement that White contemplated and assented to, and the recantation is insufficient to warrant a withdraw of guilty plea over six years after sentencing.
The test outlined in State v. Larrsion, 24 F.2d 82, (7th Cir. 1928), and re-endorsed by the Delaware Supreme Court in Blankenship, therefore cannot apply. There is no way for the Court to measure the credibility of the recantation against the victim's trial testimony, nor to weigh whether the recantation would have made a difference at trial.
6. Moreover, the Court must remind White that he is not in jail for Unlawful Sexual Intercourse; he is incarcerated because he has consistently and totally failed to meet the conditions of probation. All of the conduct for which White is incarcerated, as well as the factors considered by this Court in determining his current sentence, are totally independent of the rape conviction. The sentence is thus still appropriate for all the reasons stated in this Court's prior opinions.
7. For these reasons, Defendant's Motion For Post Conviction Relief is hereby DENIED.