Opinion
No. 523, 2002.
Submitted: March 21, 2003.
Decided: April 10, 2003.
Court Below-Superior Court of the State of Delaware, in and for New Castle County Cr. ID. No. 9705011087
Before HOLLAND, BERGER and STEELE, Justices
Appeal dismissed.
Unpublished opinion is below.
PHILLIP JONES, III, Defendant Below-Appellant, v. STATE OF DELAWARE, Plaintiff Below-Appellee. No. 523, 2002. Supreme Court of Delaware. Submitted: March 21, 2003. Decided: April 10, 2003.
ORDER
This 10th day of April 2003, upon consideration of the briefs on appeal and the record below, it appears to the Court that:
(1) The defendant-appellant, Phillip Jones, III, filed an appeal from the Superior Court's August 30, 2002 and October 28, 2002 orders denying his third motion for postconviction relief pursuant to Superior Court Criminal Rule 61 and denying his motion for transcripts at State expense. We find no merit to the appeal. Accordingly, we AFFIRM.
The motion was filed in July 2002.
(2) On July 8, 1997, Jones pleaded guilty to Maintaining a Vehicle for Keeping Controlled Substances and Conspiracy in the Second Degree. On the first charge, he was sentenced to 3 years incarceration at Level V. On the second charge, he was sentenced to 2 years incarceration at Level V, including participation in Residential Drug/Alcohol Treatment and the Key Program, to be suspended for 2 years at Level III probation upon successful completion of the Key Program. Jones did not file an appeal from his convictions or sentences. He did, however, file a motion for reduction of sentence. The Superior Court denied the motion and this Court affirmed.
On the same date, Jones was also found to have violated his probationary sentences for earlier robbery and conspiracy convictions.
Jones v. State, Del. Supr., No. 524, 1999, Walsh, J. (Apr. 14, 2000).
(3) Jones filed postconviction motions in March 2000 and in September 2001 arguing in both that his counsel was ineffective for not objecting to the inclusion of the Key Program in his sentencing order on the ground that it had not been part of his plea agreement with the State. The Superior Court denied both motions and this Court affirmed.
Jones v. State, Del. Supr., No. 495, 2000, Holland, J. (Jan. 16, 2001); Jones v. State, Del. Supr., No. 578, 2001, Steele, J. (Feb. 21, 2002).
(4) In this appeal, Jones claims that the Superior Court abused its discretion by: a) denying his postconviction motion as procedurally barred; b) denying his motion for transcripts; and c) re-sentencing him on October 8, 1998 and modifying his sentence on April 5, 1999 in his and his attorney's absence.
In his reply brief, Jones also requests the Court to strike the State's answering brief because it was filed out of time without any legitimate reason.
(5) Jones' claims are unavailing. The Superior Court properly denied Jones' postconviction motion as time-barred and procedurally barred as repetitive and properly denied his claim concerning the Key Program as formerly adjudicated. There is, moreover, no evidence that consideration of the claims is warranted in the interest of justice and no evidence of a miscarriage of justice because of a constitutional violation. The Superior Court also properly denied Jones' request for transcripts. The record reflects that there were no court proceedings on October 8, 1998 and April 5, 1999 and, therefore, no transcripts of any such proceedings exist.
Because Jones' conviction became final in November 1997, any postconviction motion had to be filed by November 2000. SUPER.CT.CRIM.R. 61(i)(1).
Jones' claim that the Superior Court improperly re-sentenced him and modified his sentence in his absence was not asserted in his previous postconviction motions. SUPER.CT.CRIM.R. 61(i)(2).
SUPER.CT.CRIM.R. 61(i)(4).
SUPER.CT.CRIM.R. 61(i)(2) and (4).
SUPER.CT.CRIM.R. 61(i)(5).
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.
Jones' request that the Court strike the State's answering brief is denied since the State's motion for leave to file its answering brief out of time provided exceptional circumstances justifying the request. SUPR.CT.R. 15(b).