Opinion
No. 485, 2001
Decided: January 30, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County. Cr.A. Nos. IN98-04-1306 IN98-04-1307 IN98-05-0983.
AFFIRMED.
Unpublished Opinion is below.
JOSEPH ELLERBE, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 485, 2001 Supreme Court of the State of Delaware. Decided: January 30, 2002
Court Below-Superior Court of the State of Delaware, in and for New Castle County. Cr.A. Nos. IN98-04-1306 IN98-04-1307 IN98-05-0983.
Before VEASEY, Chief Justice, WALSH and HOLLAND, Justices
Joseph T. Walsh, Justice:
ORDER
This 30th day of January 2002, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Joseph Ellerbe, filed an appeal from the September 10, 2001 order of the Superior Court denying his motion for postconviction relief pursuant to Superior Court Criminal Rule 61. We find no merit to the appeal. Accordingly, we AFFIRM.
(2) In this appeal, Ellerbe claims that: a) the Superior Court displayed bias and/or prejudice; b) he was convicted on the basis of insufficient evidence; c) the Superior Court instructed the jury improperly; and d) the Superior Court abused its discretion in denying his motion for appointment of counsel.
(3) In February 1999, Ellerbe was convicted by a Superior Court jury of Kidnaping in the Second Degree, Possession of a Deadly Weapon During the Commission of a Felony, and Possession of a Deadly Weapon By a Person Prohibited. For the kidnaping conviction, Ellerbe was sentenced to 10 years incarceration at Level V, to be suspended after 2 years and 6 months for decreasing levels of supervision. For the first weapon conviction, he was sentenced to 12 years incarceration at Level V. For the second weapon conviction, he was sentenced to 3 years incarceration at Level V, to be suspended for 3 years at Level II.
Ellerbe's conviction and sentence were affirmed on direct appeal, except for that portion of the Superior Court's sentencing order directing Ellerbe to register as a sex offender pursuant to 11 Del. C. § 4120, 4121 and 4336. Ellerbe v. State, Del. Supr., No. 215, 1999, Walsh, J. (May 11, 2000).
(4) To the extent that Ellerbe's first claim complains of bias and/or prejudice on the part of the trial judge, the Superior Court properly ruled that the claim is procedurally barred as formerly adjudicated since it was addressed on direct appeal. To the extent that the claim alleges bias and/or prejudice in the Superior Court's denial of Ellerbe's postconviction motion, the claim is without merit. We have reviewed the Superior Court's decision and there is no evidence of impropriety. The Superior Court also properly ruled that Ellerbe's second and third claims were procedurally defaulted and that Ellerbe had failed to show cause for relief from the procedural default and prejudice from a violation of his rights. As for Ellerbe's final claim, the record reflects that the Superior Court properly exercised its discretion in denying his motion for appointment of counsel.
SUPER. CT. CRIM. R. 61(i)(4).
SUPER. CT. CRIM. R. 61(i)(3).
Id.
SUPER. CT. CRIM. R. 61(e).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.