Opinion
No. 541, 2011
02-21-2012
SCOTT FOSTER, Defendant-Appellant, v. STATE OF DELAWARE, Plaintiff-Appellee.
Court—Superior Court of the State of Delaware, in and for Kent County Cr. ID Nos. 0808005422 and 0907029242
Before STEELE, Chief Justice, HOLLAND, and RIDGELY, Justices
ORDER
This 21st day of February 2012, upon consideration of the appellant's opening brief, the State's motion to affirm, and the record on appeal, it appears to the Court that:
(1) The appellant, Scott Foster, filed this appeal from the Superior Court's denial of his motion for postconviction relief. The State of Delaware has filed a motion to affirm the judgment below on the ground that it is manifest on the face of Foster's opening brief that his appeal is without merit. We agree and affirm.
(2) The record reflects that Foster was indicted on dozens of criminal charges. Pursuant to a plea agreement, Foster pled guilty on July 7, 2009 to one count of second degree rape and two counts of third degree rape. In exchange for his guilty plea, the State dismissed the remaining charges. The Superior Court immediately sentenced Foster to a total period of seventy-five years at Level V incarceration, to be suspended after serving eighteen years for decreasing levels of supervision. Foster did not appeal. In September 2009, Foster was indicted on new criminal charges. Ultimately, he pled guilty on November 17, 2009 to another charge of third degree rape. The Superior Court immediately sentenced Foster to twenty-five years at Level V incarceration, to be suspended after serving four years for decreasing levels of supervision. Again, Foster did not file a direct appeal.
(3) Instead, on February 14, 2011, Foster filed a single motion for postconviction relief, challenging the convictions in each of his criminal cases. Foster raised five claims asserting: (i) ineffective assistance due to his counsel's failure to challenge the indictment on the ground of multiplicity; (ii) ineffective assistance of counsel because his counsel failed to investigate inconsistencies in the affidavit of probable cause; (iii) selective prosecution; (iv) ineffective assistance of counsel for counsel's failure to raise defendant's mental illness as a defense; (v) ineffective assistance of counsel for counsel's failure to address the State's overcharging. The Superior Court summarily dismissed Foster's motion on the ground that it was both untimely and procedurally barred because he had failed to raise his claims in the proceedings leading to the judgment of conviction. This appeal followed.
(4) Foster raises only one contention in his opening brief on appeal. He contends that the Superior Court erred in dismissing his claims as procedurally barred because: (i) there is no time bar for ineffective assistance of counsel claims; and (ii) he raised colorable claims to overcome the procedural hurdles. We disagree.
(5) Before the Superior Court, or this Court on appeal, may address the substantive merits of a defendant's postconviction claims, the court must first consider the procedural requirements of Superior Court Criminal Rule 61. Rule 61(i)(1) provides, in relevant part, that a motion for postconviction relief may not be filed more than one year after the judgment of conviction becomes final. In this case, Foster's convictions became final when he was sentenced on July 7, 2009 and November 17, 2009, respectively. Foster filed his postconviction motion on February 14, 2011, more than one year after both judgments became final. Foster's contention that Rule 61(i)(1) is inapplicable to any claim of ineffective assistance of counsel is unsupported by any case law and is simply wrong.
Younger v. State, 580 A.2d 552, 554 (Del. 1990).
(6) While Rule 61(i)(5) excuses a defendant's untimely postconviction claims in certain cases, it does not, as Foster argues, excuse the untimely filing of any "colorable claim" asserting ineffective assistance of counsel. Instead, Rule 61(i)(5) provides that the one-year limitations period of Rule 61(i)(1) "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 undermine the fundamental legality, reliability, integrity or fairness of the proceedings leading the judgment of conviction."
Del. Super. Ct. Crim. R. 61(i)(5).
(7) The record in this case does not support a colorable claim of a miscarriage of justice. Foster's claims of multiplicity, insufficient affidavit to establish probable cause, selective prosecution, mental illness, and overcharging were all claims that could have been raised prior to the entry of his guilty pleas. In his signed guilty plea forms, Foster stated, under oath, that he had never been in a mental hospital, was not under the influence of any medication, had not been threatened or forced to enter a plea, and was entering his plea freely and voluntarily. He expressed satisfaction with his counsel's performance and indicated that he was pleading guilty because he was, in fact, guilty of the charged offenses. In the absence of clear and convincing evidence to the contrary, Foster is bound by these statements.
Somerville v. State, 703 A.2d 629, 632 (Del. 1997).
--------
(8) Accordingly, we find no error in the Superior Court's conclusion that Foster's postconviction claims were both untimely and procedurally barred by Foster's failure to raise them prior to the entry of his guilty plea. Foster failed to overcome these procedural hurdles.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
BY THE COURT:
Myron T. Steele
Chief Justice